return the indemnity received.1 This is a direct result of the responsibility for good faith assumed by the government in the presentation of a claim, and it has been invoked even where claims were submitted to arbitration admittedly without previous examination as to their merits.2

$140. Effect of National Character of the Claim.

The presentation of a claim for injury to a citizen being a transaction between sovereign and sovereign, it follows that the settlement or adjudication of the claim is in its nature a matter of international law and procedure, and that it is confined to the determination of the validity and amount of the claim as between the two sovereigns, and does not extend to the determination of questions regarding the private ownership of the indemnity."

Since the claim is national in character, the indemnity fund received in payment of the claim is a national fund. The sum must be paid to the claimant government and receipted for by the appropriate government official. It does not become the property of the individual claimant, either as legal owner or cestui que trust, until his own government has paid it over to him. The government does not hold the fund either as an agent or trustee for the claimant,5 except in the larger

1 The United States has abandoned claims for fraud at various stages of the proceedings (Moore's Dig. VI, § 1057) and has refunded indemnities received upon claims found to have been fraudulent. See Frelinghuysen v. Key, 110 U. S. 63, 74; La Abra Silver Mining Co. v. U. S., 175 U. S. 423, 458. For a more complete discussion of this matter, see infra, § 147.

* Circular of Sec'y of State Fish, Feb. 23, 1870, in the matter of the presentation of claims to the U. S.-Mexican commission of 1868, Moore's Arb. 1312. The Weil and La Abra awards paid by Mexico to the U. S. were found to have been fraudulent, and were refunded to Mexico by Act of Congress. Message of the President, Dec. 3, 1900, Sen. Doc. 231, pt. 3, 56th Cong., 2nd sess., 356-358.

Opinion by the Solicitor for the Dept. of State, In re the distribution of the Alsop award, Washington, 1912, pp. 14-15 and infra, p. 382.

4 Thus Haiti was held not to have complied with its duty of paying a claim to the U. S. government when, without authorization of the American legation, it deposited funds in a Haitian bank to the order of the legation, the funds being attached by a creditor of the individual claimant. Haiti was not released from its debt by payment to the bank. Richard Allen's case, For. Rel., 1895, 814-817. See also payment of Delagoa Bay award, deposited in British Bank, For. Rel., 1900, 845–849. 'See, however, Act of Congress, Feb. 27, 1896, 29 Stat. L. 32, and infra, § 155.

sense that every public functionary is clothed with a trust. There is no necessity therefore of having the claimant's approval of a settlement, or of having his receipt pass between the two governments.1

No individual claimant has, as a matter of strict legal or equitable right, any lien upon the fund in the hands of the Executive. There is, however, a certain moral obligation to the state which has paid the indemnity, and to the individual claimant for whose benefit it has been received, to bestow the fund in the manner intended by the defendant government.3

§ 141. Varying Effects of Merger of Different Classes of Claims.

In any international reclamation arising out of an injury inflicted upon an American citizen, the private claim becomes merged in the public demand, the injury to the state, in the person of the citizen, becoming in theory the subject of complaint. The government's complete control over the claim, and the absence of any character of agency or trust in the government's demand or of any legally enforceable right of the individual to the whole or a distributive share of the proceeds received by his government from a foreign nation, does not becloud the fact that there may be differences, depending upon the private or public character of the citizen, in his moral right to the indemnity claimed and collected by his government. For example, if the citizen is a private individual injured in his person or property, it is not conceivable, in the absence of any censurable conduct on his part, and notwithstanding the absence of legal obligation, that the government will fail to make him the beneficiary of any indemnity it may receivewith a possible deduction for expenses. Moreover, by an assignment

1 Two receipts usually pass, one from the claimant to the debtor government, the other from the individual claimant to his own government. Claim of Frederick Mevs v. Haiti, For. Rel., 1893, 371-382. Settlement of claim of U. S. and Venezuela Co. (U. S.) v. Venezuela, protocol of Aug. 21, 1909, For. Rel., 1909, 624.

2 Williams v. Heard, 140 U. S. 529; U. S. v. Weld, 127 U. S. 51; Rustomjee v. The Queen, 2 L. R., Q. B. D. (1876), 69.

3 Anzilotti in 13 R. G. D. I. P. (1906), 308; Williams v. Heard, 140 U. S. 529 (dictum). Sometimes the claimant government expressly agrees with the debtor government to devote a certain part of the sum to the cancellation of specific debts. Minister Russell to the Venezuelan Min. of For. Aff., Sept. 9, 1909, For. Rel., 1909, 628.

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. 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

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. 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.