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the state making reparation to devote the sum to the indemnification of its injured citizen, or else, secondly, because the receiving state may carry out its moral obligation to bestow the fund upon the citizen whose injury initiated the international claim. Technically, of course, all claims urged by one state upon another are national. It is obvious, however, that there is a distinction between claims founded upon an injury to the people or the country as a whole and those founded upon injury to particular citizens.2 It is this distinction which creates the moral obligation in the second case.

§ 153. Nature of Individual Claimant's Title to Fund.

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As a matter of law, the indemnity which passes between governments in liquidation of claims arising out of injuries inflicted upon individuals is a national fund free from any lien or trust in favor of any particular individual. The government may, as has been seen, waive the payment of an unconscionable award, withhold an indemnity pending an investigation into the bona fides of the claim or claimant, and if convinced of the defective right of either, return to the foreign nation an indemnity already paid. This control over the fund by the execu

1 If bound by a treaty to distribute an award, the government may be considered legally bound, inasmuch as, under our system, a treaty is the law of the land. In this connection, the government's control over the distribution of an award is illustrated by the treaty of Nov. 25, 1899 between Italy and Peru for the settlement of Italian claims arising out of the Civil War of 1894-1895, in which Italy reserves the right (art. 8) of giving preference in the distribution of awards to those of its claimants who are most needy. Descamps and Renault, Rec. int. des traités du xx siècle, I, 709.

2 See Gray v. U. S., Act of Jan. 20, 1885, 21 Ct. Cl. 340.

3 Williams v. Heard, 140 U. S. 529; U. S. v. Weld, 127 U. S. 51; Great Western Ins. Co. v. U. S., 19 Ct. Cl. 206, 217; Rustomjee v. The Queen, 1 Q. B. D. 489; 2 ibid. 69; Mr. Olney, Sec'y of State, to the Attorney General, Oct. 2, 1895, Moore's Dig. VI, 1034. But see dicta in Comegys v. Vasse, 1 Peters, 193 and the Act of Parliament, Aug. 2, 1875 (In re distribution of awards of British-American commission of 1871, which provided that the sums be turned over to the High Court of Chancery as trustees for the persons entitled thereto. 66 St. Pap. 240). The Act of Feb. 27, 1896 (29 Stat. L. 32) states, however, that "all moneys received by the Secretary of State from foreign governments and other sources, in trust for citizens of the United States or others, shall be deposited and covered into the Treasury." This Act is discussed infra, § 155.

4 Supra, p. 374. The government, on receipt of lump sums in settlement of claims,

tive or by the legislative branch of the government is free from interference by the courts, either by mandamus,1 upon the petition of interested claimants, or otherwise. Although the individual claimant, therefore, whether in case of a single claim, or a group of claims for which a lump sum is received-has no strict legal or equitable right to the indemnity, its distribution by the government is not a gift to the individual claimant, who may be said to have at least "an expectancy of interest in the fund" 3 and a moral right to receive the benefits of an indemnity collected in his behalf. He has a right of property in the claim and the corresponding indemnity, notwithstanding the fact that it may be unenforceable in law until the government makes it so.4

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§ 154. Its Distribution a Matter of Executive or Congressional Discretion, Free from Judicial Control.

The indemnity fund having been received by the government may be apportioned and distributed among the various claimants as the Executive or Congress deems proper. The distribution is usually made by the Secretary of State without any special legislative authority, under the general powers possessed by him through the President may return sums in excess of losses actually sustained, e. g., The Chinese Indemnity of 1858 and 1901 and the Japanese Indemnity of 1864, supra, p. 375.

1 Frelinghuysen v. Key, 110 U. S. 63; Boynton v. Blaine, 139 U. S. 306, 323; La Abra Silver Mining Co. v. U. S., 175 U. S. 423.

2 Several state courts erroneously so held in the case of the distribution of the Alabama award (see the summary of the decisions of these courts in 5 Harvard Law Rev., 1891, 204-205). The Supreme Court in Williams v. Heard, 140 U. S. 529, reversed these decisions. See also Comegys v. Vasse, 1 Peters, 193 and Phelps v. McDonald, 99 U. S. 297. But in Blagge v. Balch, 162 U. S. 439, the Supreme Court distinguished Williams v. Heard and Comegys v. Vasse and held that the Act of Congress making appropriations for the payment of French Spoliation Claims (released to France for a consideration, compensation therefor being granted by Congress) was to be regarded as a gratuity to claimants, and not a matter of right. See also Emerson v. Hall, 13 Pet. 409. Probably the clearest statement of the claimant's relationship to the international award and to the fund received in payment thereof is set forth in Williams v. Heard, 140 U. S. 529.

3 Williams v. Heard, 140 U. S. 529.

Comegys v. Vasse, 1 Pet. 193. To effect that claimant's interest may be bought and sold, assigned, devised and pass to legal representatives, see also Williams v. Heard, 140 U. S. 529 and Porter v. White, 127 U. S. 235; to effect that it constitutes a chose in action, Judson v. Corcoran, 17 How. 612.

to conduct the foreign relations of the government.' This is usually the practice when a single claim is paid, and in principle is not altered by the fact that a group of claims is paid in a lump sum. In the latter case, it is usually deemed more convenient to create some kind of judicial commission to apportion the fund received.

Both the Executive and Congress have certain plenary powers over the fund received and an absolute discretion in its distribution. For example, as already observed, the Executive may either decline to enforce payment of an award considered erroneous, as was done by Secretary Bayard in the cases of Pelletier and Lazare against Haiti, or he may withhold payment to claimants, uncontrolled by the courts, pending diplomatic negotiations for the opening of an award. In the conclusion of new treaties for the resubmission of claims to arbitration the power of the Senate may also be involved. In the refunding of an award obtained by fraud or imposition, and the investigation of the matter of fraud, Congressional legislation has usually been invoked, principally because the Executive or political branch of the government has no machinery for the examination of essentially judicial questions, the method for their examination being left to the direction of Congress. Congress has on several occasions delegated this judicial function to the Court of Claims, and the constitutionality of its action has been upheld by the courts.2 As a matter of fact, after the international questions have been settled, Congress has plenary jurisdiction over the distribution of the national fund, provided it chooses to act.3

In the exercise of its full control over the matter of distribution, Congress has directed payment to certain claimants and excluded others; e. g., in the payment of French Spoliation claims, Congress

1 The decisions of the French Council of State exclude judicial review of the executive act of distributing awards, on the ground that it is a diplomatic act, or "acte de gouvernement" (Courson, Jan. 5, 1847, Lebon, 1; Dubois, Apr. 30, 1867, Lebon, 421) although adverse claimants may sue the beneficiaries of the distribution in the courts (Pontus, May 25, 1832, Lebon, 160). This closely resembles the American practice.

2 E. g., U. S. v. La Abra Silver Min. Co., 175 U. S. 423 (29 Ct. Cl. 432); U. S. v. Weil, 35 Ct. Cl. 42; U. S. v. Diekelman, 92 U. S. 520 (8 Ct. Cl. 371).

Opinion of Solicitor, Distribution of Alsop award, pp. 17-27. In most cases, the distribution is left to the Department of State exclusively.

provided that only the next of kin of the "original sufferer" should benefit, to the exclusion of assignees in bankruptcy and insurance companies,1 and in the distribution of the Alabama award under the Act of June 23, 1874, after providing that the Commission might award attorney's fees to those appearing for claimants, declared null and void all other liens or assignments and transfers for services rendered made before the judgment of the commissioners was handed down.2 Congress may designate any court to hear claims against awards received from foreign powers, and for this purpose has often designated the Court of Claims or special tribunals, whose decisions, unless reopened by Congress and appeal allowed,3 are final on the question of validity and amount of the claim.

Unless specially designated by Congress for the purpose, the Court of Claims has denied its jurisdiction over claims against the United States arising out of an award paid to the United States under treaty or agreement with a foreign power, either because it was considered a claim growing out of a treaty under § 1066 of the Revised Statutes or because the obligation of the government to pay a claimant cannot be deemed a contract, express or implied."

In most cases, particularly where single claims are collected, Congress has not interfered with the free exercise of the Executive's discretion in the distribution of awards.5

Prior to the Act of February 27, 1896, which will be considered presently, it was the practice of the Executive, through the Secretary of State, to pay over to the injured party or parties the indemnity collected, without any act of Congress. Only in exceptional cases, 126 Stat. L. 897, 908. As to the plenary power of Congress over awards see Blagge v. Balch, 162 U. S. 439.

2 See full text of § 18 of Act of June 23, 1874, 18 Stat. L. 249. Bachman v. Lawson, 109 U. S. 659.

*S. J. Res., May 25, 1908, allowing appeal to Court of Claims from decisions of U. S. commissioners in the Boxer Indemnity claims. 35 Stat. L. 577, For. Rel., 1908, 65.

4 Great Western Ins. Co. v. U. S., 19 Ct. Cl. 206 (112 U. S. 193); Alling v. U. S., 114 U. S. 562 (17 Ct. Cl. 311).

• Committees of Congress have expressly conceded that the Department of State had full power and authority in the distribution of awards. Sen. Rep. 311, 47th Cong., 1st sess., March 23, 1882; H. Rep. 700, 45th Cong., 2nd sess., April 24, 1878,

did Congress interfere with the Secretary's discretion in the disposition of funds received. When there was a single claimant, or where a domestic commission had apportioned the individual claims against a lump sum indemnity, the Secretary of State paid the person who appeared to be prima facie entitled, namely, either the claimant or his assignee of record. Should the fund have been paid to one not equitably entitled, no liability was incurred by the Secretary, but the courts, in actions for money had and received or by way of injunction, granted appropriate relief to the persons rightfully entitled, either by allowing recovery of moneys paid to claimants not entitled, or by perpetually enjoining the receipt of the moneys by one who may be prima facie but not equitably entitled.2

It has already been observed that the courts have no jurisdiction over the Secretary of State either to compel or enjoin the distribution of funds. It is established law that the government cannot be sued in the ordinary courts without its consent, nor is the Secretary of State subject to any judicial decree tying up the fund or directing his action in the discharge of such an important executive function as the distribution of awards, over which, by its nature, the Executive subject to direction by Congress, if Congress desires to act in the matterhas unquestionable control. The Secretary's control over the funds cannot be intrenched upon, directly or indirectly, by way of mandamus, injunction or suit, to recover the funds or to fetter his discretion. by the declaration of a lien or trust.1

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§ 155. Practice of Department of State under Act of February 27, 1896. Prior to the statute of 1896 there was no customary place for the

1 Act of June 18, 1878, 20 Stat. L. 144, conferring on Secretary exclusive jurisdiction over the distribution of the awards of the U. S.-Mexican commission of 1868. Virginius indemnity, Joint Res. of Dec. 16, 1882, directing Secretary to pay a portion of the fund received from Spain to a person not included in the original plan of distribution. See H. Ex. Doc. 15, 45th Cong., 1st sess., H. Ex. Doc. 72, 45th Cong., 2nd sess.

2 Brief of Solicitor Penfield in Pell v. Hay, Supreme Court of the District of Columbia, 1902.

3 Stubbs' case, 10 Op. Atty. Gen. 31, 32.

4 Brief of Solicitor Penfield in Pell v. Hay, citing 10 Op. Atty. Gen. 31, Frelinghuysen v. Key, 110 U. S. 63, Boynton v. Blaine, 139 U. S. 306, and Rustomjee v. The Queen, 2 Q. B. D. 69.

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