to have been regarded as liable for condemnations of American prizes in her territory.1 For similar acts in Dutch territory during the Napoleonic control of Holland, France and not Holland was held liable by the commission under the treaty of July 4, 1831,2 especially as Holland appeared to have been released from responsibility by the United States. In the case of a seizure made by French privateers in Swedish waters, a protest by the United States to Sweden and the absence of any complaint against France was considered an election to hold Sweden liable.3 The fact that the United States had regarded France and not Spain as liable for the condemnation of vessels taken into Spanish ports, when the prize proceedings were conducted in French territory, was held by the Court of Claims to release Sweden and the Netherlands from liability arising out of similar circumstances.4

5

With the power to refuse to present the claim, or to abandon it at any time after its espousal, the government has necessarily, as an incident of its control over it, the right to modify or reduce the claim in amount and to accept such settlement in amount or kind as may in its opinion appear reasonable under the circumstances. The negotiations for settlement, therefore, are usually conducted between government and government. When the right to negotiate is granted to 1 Convention of March 28, 1830, Moore's Arb. 4549, 4563; Amer. St. Pap., For. Rel. III, 384, 505.

6

2 Moore's Arb. 4473, quoting Kane's notes.

The Reliance v. U. S., Act of Jan. 20, 1885, 41 Ct. Cl. 67. The fact that the owners filed a claim against Sweden was corroborative evidence of the election of Sweden. In theory, the government might have disregarded claimant's election and looked to France.

The Happy Return v. U. S., Act of Jan. 20, 1885, 37 Ct. Cl. 262, 268. The U. S. was regarded as having overlooked the abuse of the right of asylum by these neutral countries.

See, e. g., the interesting case of the Lautardo (Chile) v. Colombia in which, after a settlement had been agreed upon and partly liquidated, the payment of the unpaid balance was in part waived by Chile on the equitable ground that Panama, originally responsible for the injury, no longer belonged to Colombia. For. Rel., 1907, I, 293. See also Labaree claim v. Persia, For. Rel., 1906, 1208; and Mather's claim (Gt. Brit.) v. Tuscany, 1852, 42 St. Pap. 474, 495.

E. g., Claims of citizens of U. S. for deportation from South Africa. Mr. Hay, Sec'y of State, to Mr. White, Oct. 26, 1901, For. Rel., 1901, 216. Settlement of Emery claim v. Nicaragua, Sept. 18, 1909, For. Rel., 1909, 464; Great Britain and Chile, Sept. 29, 1887, 78 St. Pap. 774; Etzel (U. S.) v. China, Mr. Loomis, Acting Sec'y of State, to Mr. Conger, July 15, 1904, For. Rel., 1904, 176.

the citizen, as it occasionally is, the government must express its approval of the settlement before it may be considered as final, and the claim withdrawn from the files of the Department.1

It not infrequently happens that a form of settlement satisfactory to the government is quite unsatisfactory to the claimant. For example, the government may accept an apology from a foreign country or accept the punishment of the wrongdoing officer for the false arrest of an American citizen as a sufficient reparation for the injury, notwithstanding the demand of the citizen for pecuniary indemnity.2 In Waller's claim against France, the claimant's release from imprisonment and pardon of his offense, on condition that the United States should make no claim on his behalf was regarded by the government as a satisfactory adjustment of the case, notwithstanding claimant's protest. It is evident, therefore, that the citizen, having made his claim the subject of international negotiation, is bound by a settlement effected and considered satisfactory by his government. On the other hand, as will be observed presently, a direct settlement between the wrongdoing government and the citizen or his waiver of the right to make a claim in no way affects the right of his government to demand such indemnity as it may consider the offense to warrant.

3

The effect upon international commissions of the previous diplomatic negotiations connected with the prosecution or adjustment of a claim depends very largely upon the terms of the protocol under which the commission acts. As a general principle, arbitral tribunals have refused to be bound by conclusions and opinions reached by the political

1 Scandella claim v. Venezuela, For. Rel., 1898, 1137–1147; S. S. Haitian Republic claim v. Haiti, S. Ex. Doc. 69, 50th Cong., 2nd sess., 171, 241; Panama Star and Herald claim v. Colombia, For. Rel., 1899, 232. A private settlement was considered a bar to an international claim in Bours (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2430.

2 St. Bris' claim v. Belgium, For. Rel., 1901, 17; Torrey (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 162, Morris' Rep. 331, quoting from letters of Sec'y Evarts and Sec'y Bayard. Paul, Commissioner, allowed Torrey $250.

3 For. Rel., 1895, 258. If the Department considers the offer of a foreign country to a claimant fair, it will, of course, decline to press his demand for a larger sum. See also claim of Schooner B. L. Allen (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2430, note; and Crosswell's claim (Gt. Brit.) v. Haiti, 1887, 78 St. Pap. 1353.

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.

6

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 complaint1 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 1 of a claim as a bar to an international reclamation.

It will be seen hereafter 5 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.

4 Jarr and Hurst (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2713 (it was regarded 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.1 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. The government is not often confronted with such an alternative, for ar

1

1 Supra, 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.

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