reasoning of the Court is better than the judicial authority upon which it relies, namely, a dictum of the Lord Chancellor in De Bode v. The Queen (1851), 3 Clark's House of Lords, 465, although the authority of Vattel was convincingly invoked. Notwithstanding these decisions of the Court of Claims, the Supreme Court has held that the appropriations by Congress for the payment of French Spoliation awards are in the nature of a gratuity, a matter of grace and not of right.2

On several other occasions, e. g., in the treaties of 1819, 1834 and 1898 with Spain and in the treaty of 1831 with France, the United States has released the claims of its citizens in return for a lump sum indemnity which it then undertook to distribute among the claimants. In the treaty of 1819, the cession of Florida was the consideration for the surrender of American claims against Spain, the United States agreeing to indemnify its citizens to the extent of five million dollars. In this connection, the government has committed a great injustice to an American citizen by denying all relief in the Meade claim. Briefly stated, Meade's claim, involving a large sum, was one of those surrendered to Spain as a consideration for the cession of Florida. Between the signing and the ratification of the treaty of 1819, Meade liquidated his claim with Spain and secured by decree an acknowledgment thereof. The domestic commission under the treaty of 1819 regarded the decree as evidence of a liquidated claim acquired subsequent to the signing of the treaty and hence not binding on the United States. Only the unliquidated claim did they consider within their jurisdiction, the only admissible evidence in support being the vouchers then in the possession of Spain, which on request of the government, Spain refused to transmit. The commission's labors came to an end before the vouchers could be obtained, leaving Meade's claim unpaid. After numerous unsuccessful appeals for Congressional relief, the claim was ultimately taken to the Court of Claims, Meade basing his main contention for the liability of the United States upon the ground that the government had been negligent in not diligently prosecuting his claim

1 Gray v. U. S., 21 Ct. Cl. 340, 391, citing Vattel, Bk. IV, ch. II, § 12 (see also Bk. I, § 244) who regards the state's disposal of the private property of its citizens for the public advantage as the exercise of eminent domain.

'Blagge v. Balch, 162 U. S. 439.

ers.

and obtaining from Spain, as provided by treaty, the supporting vouchThe Court of Claims held that the commission had made a mistake in its ruling in the matter of evidence, but, while admitting the inequitable result, dismissed the claim on jurisdictional grounds.2 On appeal to the Supreme Court, the dismissal of the claim by the original commissioners was upheld on the ground that their jurisdiction extended only to unliquidated claims. Thus, notwithstanding an almost uniform admission that the release of Meade's claim to Spain as part of the consideration for the cession of Florida was a taking of private property for the public use, the United States has shielded itself behind attenuated technicalities in order to escape a just liability.

12 Ct. Cl. 224.

3

2 Namely, that where a special tribunal had been provided by treaty, no action could be brought in the Court of Claims. One of the three judges dissented.

39 Wall. 691. See account by R. Floyd Clarke in 1 A. J. I. L. (1907), 366, et seq.; H. R. 226, 36th Cong., 1st sess.; Wharton, II, § 248, pp. 708–714. A contention in the claim of the Brig General Armstrong, based on the neglect of the government in its negotiations concerning the claim, was rejected in various Congressional reports.

CHAPTER IV

DISTRIBUTION OF AWARDS AND INDEMNITIES

§ 150. Two Stages of the Proceedings; the International and the Municipal.

In the procedure for the adjustment of an international claim arising out of injuries sustained by a citizen there are two distinct stages, the international and the municipal. The former constitutes an appeal by nation to nation, and both in the case of international arbitration and purely diplomatic adjustment, consists in the determination of the validity and amount of the claim as between sovereigns. These are matters of international law. When the government assumes the obligation of paying the claims of its citizens upon foreign nations, referring the determination of the merits of the claims to a domestic court or commission, the legal questions involved are likewise decided according to the principles of international law.

The distribution of the award by the claimant state and the determination of questions relating to the private ownership of the award constitute the second stage of the proceedings. These are matters to be decided according to the municipal law of the claimant country, whether the award is made in a lump sum for a group of claims,1 or in a specific amount for the liquidation of an individual claim. The protocol or treaty creating the international commission or the statute

1 In such cases, the claimant government usually creates a domestic commission for the determination of individual claims upon the lump sum. See, e. g., Act of July 13, 1832 (4 Stat. L. 574) for commission under treaty with France of July 4, 1831; Act of March 3, 1859 (11 Stat. L. 408), for distribution of Chinese indemnity under treaty of Nov. 8, 1858. Act of June 23, 1874 (18 Stat. L. 245), creating court for distribution of Alabama award. See Comegys v. Vasse, 1 Pet. 193 and Sheppard v. Taylor, 5 Pet. 710, under treaty of 1819 with Spain, and Frevall v. Bache, 14 Pet. 95, under treaty of 1831 with France. A number of cases dealing with the ownership of claims as between private parties are listed in the Opinion of J. Reuben Clark, Jr., Solicitor, In re Distribution of Alsop award (1912), pp. 28-30.

creating the domestic commission usually provides the extent of the tribunal's jurisdiction.1

§ 151. Finality of Awards.

The question has occasionally arisen as to whether the award of an international commission is final as between the prosecuting government and the successful claimant in whose behalf the claim was presented. The control of the government over an award in all matters affecting its integrity, is well established. The fact that municipal courts have sustained the right of the government to set aside the award for fraud or other good reason, leaving the claimant without judicial remedy against the act of the government, proves clearly that as between the citizen and his own government the award of an international commission is not final.2 Nor, as will be noted presently, has the individual any title, legal or equitable, in an award or diplomatic settlement made in his behalf. On the other hand, as between the two governments, the decision of an arbitral tribunal in the case of a single or a collective award is final as to the validity and amount of the claim, although the two governments may, by agreement, set the award aside without consulting the individual claimant. It has even been held that the decisions of domestic commissions created by Congress to distribute a collective award to the entitled claimants, are final and conclusive as to the validity and amount of the claims, but not as to the ownership of the amounts as between conflicting claimants, who are left to resort to the ordinary courts.1

1 Opinion of J. Reuben Clark, Jr., Solicitor, In re Distribution of Alsop award, p. 15.

2 U. S. v. La Abra Silver Mining Co., 29 Ct. Cl. 432; Boynton v. Blaine, 139 U. S. 306; La Abra Silver Min. Co. v. U. S., 175 U. S. 423. See, however, the opinion of Hoar, Atty. Gen., in Gibbes' case (13 Op. 19) in which he considered that an award gave the claimant a right which could not be divested by the government by resubmitting the claim to a new commission. This opinion is contrary to the general rule, and is not considered good law.

3 Frelinghuysen v. Key, 110 U. S. 63; La Ninfa, 75 Fed. 513, Moore's Dig. VII, § 1081. Certain awards of the 1857 U. S.-Colombian commission were set aside and resubmitted to the 1864 commission. The Orinoco Steamship Co. award of Umpire Barge was opened and the case resubmitted to the Hague Court, 1909-1910. Contra to the rule of the text, Atty. Gen. Hoar's dictum in 13 Op. 19.

4 Comegys v. Vasse, 1 Pet. 193, 212; Frevall v. Bache, 14 Pet. 95; Phelps v. Mc

In the Caldera cases, it was held by the Court of Claims and affirmed by the Supreme Court,' that this government having diplomatically asserted a claim against China to be valid, a domestic commission or court authorized to pass upon the claim is constrained to regard it, as between this government and the claimants, as a legitimate international claim. This decision constituted the basis for the contention of several claimants before the Spanish Treaty Claims Commission to the effect that the government, having supported a claim for a certain indemnity against Spain, the Commission was bound to consider the claim as valid and to hold the United States under an obligation to pay the indemnity claimed out of the sum set aside by the treaty for the payment of claims.2 This argument appears to have been rejected by the Commission.3

§ 152. Award or Indemnity a National Fund, Free from Individual Lien.

It has already been observed that in the prosecution of an international reclamation the government has complete control of the claim and may settle it in such manner as in its opinion may best subserve the public interests. Not being the representative or agent of the individual injured, it need not necessarily, although it does usually, demand a pecuniary indemnity. To this indemnity, when collected, the individual has no legal right, because international responsibility is a relation between states only. The indirect effect of such responsibility is usually, however, the indemnification of the injured individual, not in virtue of any enforceable right or lien upon the fund, but because, first, the receiving state may be bound by agreement toward Donald, 99 U. S. 298; Williams v. Heard, 140 U. S. 529. See also as to finality of decisions of domestic commissions, Meade v. U. S., 9 Wall. 691; In re Atocha, 17 Wall. 439. The Department of State, however, altered many awards of the Board passing on Boxer claims against China, particularly in death claims. The Department probably has the same right to open the awards of the Board passing on the 1911 Revolutionary Claims against China. These boards were appointed or their American members named by the Department and not by Congress.

115 Ct. Cl. 546; 16 Ct. Cl. 635.

2 Argument of John G. Carlisle in the Rosario Sugar Co. case, No. 341. Opinions of the Commissioners filed Dec. 5, 1903, p. 85. See also the dissenting opinion of Davis, J., in Hubbell v. U. S., 15 Ct. Cl. 546, 600.