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Some Aspects of the Jurisprudence of National Claims Commissions

Published online by Cambridge University Press:  12 April 2017

Robert R. Wilson
Robert R. Wilson*
Affiliation:
Duke University
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Extract

Many applications of international law receive but little attention from the general public. Unpublicized or little-publicized settlements involving relatively obscure persons and comparatively small amounts of money tend to be undramatic. They may seem of little importance during a period of major, kaleidoscopic developments in a worldwide conflict. But the fact remains that in numerous instances rules have become the bases for the disposition of practical questions which were of importance to the individuals immediately involved and of some concern to their respective governments. Collectively, these dispositions may help to attest the vitality of the principle of legality. At a time when the world situation puts in question the very fundamental elements of an international legal system, there may still be justification for drawing attention to the manner in which settlements of private claims against governments have been and are effected.

Type
Research Article
Information
American Journal of International Law , Volume 36 , Issue 1 , January 1942 , pp. 56 - 76
Copyright
Copyright © American Society of International Law 1942

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References

1 For a statement of the value of claims adjudications in general, see Fred K. Nielsen, International Law Applied to Reclamations (1933), pp. 3-5.

2 The fourteen commissions, in chronological order of the treaties which preceded their establishment, are those which handled claims originally arising against the following states, respectively (the date in each case being that of the treaty or convention): France, April 30, 1803 (8 Stat. 208,18 Stat. [2] 236); Spain, Feb. 22,1819 (8 Stat. 252,18 Stat. [2] 712); Great Britain, Nov. 13,1826 (8 Stat. 344,18 Stat. [2] 308); Denmark, March 28,1830 (8 Stat. 402, 18 Stat. [2] 170); France, July 4, 1831 (8 Stat. 430, 18 Stat. [2] 245); Two Sicilies, Oct. 14, 1832 (8 Stat. 442, IS Stat. [2] 771); Spain, Feb. 17,1834 (8 Stat. 460,18 Stat. [2] 718; Peru, March 17,1841 (8 Stat. 570, 9 Stat. 815,18 Stat. [2] 611); Mexico, Feb. 2, 1848 (9 Stat. 922, 18 Stat. [2] 492); Brazil, Jan. 27, 1849 (9 Stat. 971,18 Stat. [2] 90); China, Nov. 8, 1858 (12 Stat. 1081, 18 Stat. [2] 146); Great Britain, May 8, 1871 (17 Stat. 863, 18 Stat. [2] 355); Spain, Dec. 10, 1898 (30 Stat. 1754); China, Sept. 7, 1901, Jan. 3, 1902 (protocol), Malloy, Treaties, I, 260. The list does not include domestic agencies which have been used for the computation of amounts due aliens for injury by the United States, such as the East and West Florida claims under Art. IX of the Treaty of 1819 with Spain. (J. B. Moore, International Arbitrations, V, 4524.) Nor does it include outright awards of damages on specific claims by international agreements, such as the United States secured from Venezuela by exchange of notes in 1844, and by conventions of Nov. 16, 1846, April 12, 1848, July 7, 1849, May 1, 1852, June 1, 1853, Feb. 27, 1858, Jan. 14, 1859, and Oct. 18, 1860. (Sen. Doc. No. 10, 36th Cong., 2nd Sess.) The French spoliation claims settlements by the Court of Claims are not included, since the list includes only agencies other than already established courts. See, however, notes 12 and 78, infra.

3 Art. I : "The two High Contracting Parties, appreciating the difficulty of agreeing upon the subject of said reclamations, from the belief entertained by each,—one of the justice of the claims, and the other, of their injustice,—and being convinced that the only equitable and honorable method by which the two Countries can arrive at a perfect understanding of said questions, is to adjust them by a single act; they mutually agreed, after a mature examination of these claims; and, in order to carry this agreement into execution, it becomes the duty of Brazil to place at the disposition of the President of the United States the amount of five hundred and thirty milreis, current money of Brazil, as a reasonable and equitable sum, which shall comprehend the whole of the reclamations, whatever may be their nature, and amount, and as full compensation for the indemnifications claimed by the Government of said States; to be paid in a round sum, without reference to any one of said claims, upon the merits of which the two High Contracting Parties refrain from entering; it being left to the Government of the United States to estimate the justice that may pertain to the claimants, for the purpose of distributing among them the aforesaid sum . . . as it may deem most proper." Art. II: "In conformity to what is agreed upon in the preceding article, Brazil is exonerated from all responsibility springing out of the aforesaid claims presented by the Government of the United States up to the date of this Convention, which can neither be reproduced, nor reconsidered in future." 5 Miller, Treaties, 508-509. Peru, by the 1841 convention, was to pay to the United States 300,000 "hard dollars" of the same standard and value as those then coined at the mint in Lima. 4 Miller, Treaties, 329, 331.

4 Art. XIV: "The United States do furthermore discharge the Mexican Republic from all claims of citizens of the United States, not heretofore decided against the Mexican Government, which may have arisen previously to the date of the signature of this treaty: which discharge shall be final and perpetual, whether the said claims be rejected or be allowed by the Board of Commissioners provided for in the following Article, and whatever shall be the total amount of those allowed." Art. XV: "The United States, exonerating Mexico from all demands on account of the claims of their citizens mentioned in the preceding Article, and considering them entirely and forever cancelled, whatever their amount may be, undertake to make satisfaction for the same, to an amount not exceeding three and one quarter millions of Dollars." 5 Miller, Treaties, 223-224.

5 "The United States and Spain mutually relinquish all claims for indemnity, national and individual of every kind, of either Government, or of its citizens or subjects, against the other Government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. "The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article." 30 Stat. 1754, 1757-1758.

6 Those under the 1803 convention with France, the 1858 convention with China, and the 1901/2 protocol with China, respectively.

7 The Court of Commissioners of Alabama Claims.

8 Stat. 218; 18 Stat. (2) 287.

9 8 Stat. 248.

10 Convention of July 12, 1822, 8 Stat. 282, 18 Stat. (2) 303.

11 8 Stat. 344, 18 Stat. (2) 308.

12 These were claims for spoliations before July 31, 1801. The Act of Jan. 20, 1885 (23 Stat. 283), provided that decisions of the Court of Claims should not "conclude either the claimant or Congress." Findings as to both law and facts were to be reported to Congress as advisory for future action. In early cases under the Act, claimants sought to maintain that the Act itself constituted a pre-judgment by Congress on the validity of the claims as a class, and that the function of the court was merely to examine the particular facts and circumstances attending each claim, to determine whether it would fall within the class. But the court found that Congress had intended to submit the basic question involving the validity of all the claims as a class. George A. King, "The French Spoliation Claims," this JOURNAL, Vol. 6 (1912), pp. 359-380, 629-649, 830-857.

13 Otto Schoenrich's Report of the Nicaraguan Mixed Claims Commission to the Secretary of State of the United States (1915), p. 28.

14 The Ship Rose v. The United States, 36 Ct. CIs. 290, 302 (1901).

15 United States-Spanish Treaty Claims Commission (Washington, 1904^1910), Vol. VII, Opin. No. 33, p. 3.

16 Ibid., p. 4.

17 Comegys et al v. Vasse, 1 Peters, 193, 217. The commissioners, said Story, "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." (p. 212.)

18 J. B. Moore, International Arbitrations, V, 4440 et seq.

19 11 Stat. 408. In fact, the commissioners (a United States consul at Ningpo and a former vice-consul at Hong Kong) agreed upon awards in most of the cases and the American Minister to China approved each joint report made. J. B. Moore, International Arbitrations, V, 4628.

20 5 Stat. 34.

21 MS. Report of Commissioner, 1838. Where there are references, in the following pages, to commission materials without citation of printed sources, the references are to manuscript records in the National Archives.

22 MS. Opinions.

23 Cited in note 19, supra.

24 House Ex. Doc. No. 29, 40th Cong., 3rd Sess.; For. Rel., 1885, pp. 181-182; J. B. Moore, International Arbitrations, V, 4636-7.

25 18 Stat. 245.

26 22 Stat. 98.

27 There had been some discussion in Congress of the duty of returning to Great Britain any part of the Geneva fund not distributed to private claimants. Cong. Rec, Vol. 13, Pt. I l l , p. 2951, Pt. V, p. 4162; J. B. Moore, International Arbitrations, V, 4660, 4662n. The Act of 1882 conferred upon the reestablished commission a jurisdiction broader than that which the first court had thought would cover the purposes for which Great Britain supposed she was paying the money. This suggests the extent of the legal power of Congress to distribute the funds (in the absence of specific statements in the treaty as to how they shall be paid out), whatever moral obligations there be to disburse it as the other state intended.

28 J. B. Moore, International Arbitrations, V, 4664.

29 Williams v. United States. See Report cited in note 45, infra, pp. 30, 32. Quoted after J. B. Moore, International Arbitrations, V, 4649-4650.

30 J. B. Moore, International Arbitrations, V, 4650. The commission on Spanish claims under the peace treaty of 1898 received power to certify questions of law to the United States Supreme Court. This power apparently was not used. Samuel B."' Crandall, "Principles of International Law Applied by the Spanish Treaty Claims Commission", this JOURNAL, Vol. 4 (1910), pp. 80&-822.

31 Note 17, supra.

32 Williams v. Heard, 140 U. S. 529 (1891); Butler v. Goreley, 146 U. S. 303 (1892).

33 J. B. Moore, International Arbitrations, V, 4650.

34 Ibid., V, 4512-3. This commission passed upon contract claims as well as injury claims, when validity of the contracts had been determined.

35 J. B. Moore, International Arbitrations, V, 4511.

36 John K. Kane, Notes on Some of the Questions decided by the Board of Commissioners under the Convention with France, of 4th July, 1831 (1836), p. 107.

37 MS. Report of the Commissioner, 1838.

38 See, for examples, the statutes for the Danish claims commission, the commission under the 1831 convention with France, and the Neapolitan and Peruvian claims commissions, respectively. By Art. I of the Peruvian convention, the distribution was to be "in the manner and according to the rules that shall be prescribed by the Government of the United States." The Act of Aug. 8, 1846, directed that adjudications be in accordance with "the principles of justice, equity, and the law of nations, and the stipulations of the convention." 9 Stat. 80.

39 MS. Opinions, III, 1174. The commission's report is printed in Sen. Ex. Doc. No. 34, 32nd Cong., 1st Sess.

40 See, for examples, decisions on the claims of Thomas Morison (Ops., 1,177), the Schooner Susan, J. W. Zacharie (Ops., I, 452), and Alexander J. Atocha (Ops., II, 604).

41 Rep. Com. No. 182 (Senate), 33rd Cong., 1st Sess. It had been charged that in the Gardner case, more than half a million dollars had been awarded upon a "mere assertion" of title. An account of the indictment of claimants in the mentioned cases, and of the civil action in which the United States recovered about $250,000 of the amount that had been paid on the Gardner claim, is in J. B. Moore, International Arbitrations, II, 1255 et seq.

42 J. B. Moore, International Arbitrations, II, 1263.

43 A history of these claims is in Paul Christopher Perrotta, The Claims of the United States Against the Kingdom of Naples (1926). The "principles" which the commissioners adopted are printed in Marjorie M. Whiteman, Damages in International Law (1937), II, 1222-1223. In these there is no mention, in terms, of international law. That law is apparently referred to in connection with "illegal capture and condemnation."

44 Note 25, supra.

45 Report from the Secretary of State with Accompanying Papers Relating to the Court of Commissioners of Alabama Claims (Report of John Davis, Clerk), Sen. Ex. Doc. No. 21, 44th Cong., 2nd Sess., p. 70.

46 House Ex. Doc. No. 75, 32nd Cong., 1st Sess., p. 3.

47 These were the Caldera claims. The place of the injury was allegedly within Chinese jurisdiction. The 1844 treaty of peace, amity and commerce with that country contained the following, in Art. XXVI: " . . . if the merchant-vessels of the United States, while within the waters over which the Chinese government exercises jurisdiction, be plundered by robbers or pirates, then the Chinese local authorities, civil and military, on receiving information thereof, will arrest the said robbers or pirates, and punish them according to law, and will cause all the property which can be recovered, to be placed in the hands of the nearest consul, or other officer of the United States, to be by him restored to the true owner. But if, by reason of the extent of territory and numerous population of China, it should, in any case, happen that the robbers cannot be apprehended, or the property only in part recovered, then the law will take its course in regard to the local authorities, but the Chinese government will not make indemnity for the goods lost." (4 Miller, Treaties, 568.) Mr. Roberts, with whose opinion the Minister agreed, did not find in this treaty a means of escape from public liability in these cases. As to the existence of Chinese authority in the district, he said: "If we regard the subject from a point of view under International Law we shall find that the Piratical state of Kulan was within the jurisdiction of China & the Chinese Government is responsible for its condition, although the piracy was not directly an Act of the Chinese Government or adopted by it in a direct manner." MS. Opinions, pp. 17-18.

48 Final Report of Jan. 13, 1860. Italics inserted.

49 List of Awards and Report of the Commissioner, 1838. The conclusion as to exhaustion of local remedies through appeal may be compared with what was done by the British Claims Commission under the Treaty of May 8, 1871. That international tribunal, while holding sufficient in several cases the reasons for non-appeal to American prize courts, carefully considered the reasons in each of these. J. B. Moore, International Arbitrations, III, 3157-3159.

50 In the claim of A. S. Wright, the Mexican Claims Commission said: "By the law of nations Mexico had an undoubted right not only to require the removal of American citizens who were found residing in her capital, after the commencement of War between the two countries, but also to confiscate their property found within her dominions. . . . By the Treaty of April 5, 1831, Mexico agreed to a restriction of this right. . . ." (MS. Opinions, I, 345).

51 See Haig Silvanie, Responsibility for Damage by Insurgent Governments (1939), p. 135.

52 Illustrated in the work of the commission under the 1831 convention with France. Commissioner Kane (Notes, cited in note 36 supra) admitted that this policy of the board was influenced by the fact that the fund was smaller than the amount of awards. The amount available was found to be 59.8671% of that allowed. See also, on the principal point, the report of Commissioner Henry on claims under the 1834 Spanish convention. J. B. Moore, International Arbitrations, V, 4542-4546. The Attorney General handling Peruvian claims thought it consonant with equity and justice to limit awards to actual losses. See Claims Nos. 11, 14, 24 and 26. In the first of these, the commissioner said that "This rule is uniformly adhered to by the Courts of law in the investigation of similar questions, and in my judgment it is entirely consistent with justice and equity, among the respective claimants to apply it in the adjudication of these claims." (Record of Proceedings, pp. 53-54.) The method of measuring death damages applied by the commission under the 1901/2 protocol with China seems similar to that used by the later (international) German-American Mixed Claims Commission. See, for examples, Awards Nos. 158, 162, 167, and Final Report of the Commissioners, pp. 10, 11. Despatches, China, Vol. 121 (1902).

53 From the manuscript opinion of Mr. Seawell, on the subject of hearsay evidence: " . . . according to the opinion I have formed of the functions of this Board, I have believed that it was not to be bound, either by the Convention of St. Petersburg, or of London, or Act of Congress, as to be confined in the admission of testimony, to the technical niceties, which prevail in the Courts of common law . . . this board is not constituted, as Courts of common law are . . . but is merely temporary,—to decide only the claims under the Imperial award, that it must be understood to have been the design of those who gave it existence, that the board was to decide according to the evidence which the transactions were susceptible of and to leave the commissioners at liberty to decide upon such facts and circumstances as satisfied their consciences, without being restricted by common law technicalities." Dissenting on a point, Mr. Cheves, of the same commission, said, on the subject of suppressed testimony and rules governing the commission: " . . . what is necessary in the Courts of the United States in cases in Equity or Chancery may depend, according to circumstances, on the laws and rules of practice of each of the Twenty four States of the Union. . . . Which of all these is to be our guide and how are we to ascertain what is prescribed by them? If the Chancery practice is to have the dignity of affiliation, we can hardly be allowed to prefer that of the English Courts to that of the Courts of the United States; and if we adopt the latter it presents us the Augean Stable of all the Courts of Chancery in all the States of the Union, to select from; or perhaps, we may be bound to embrace all, if witnesses should be found in all. They are all alike recommended to our adoption, unless some should be entitled to a preference by their superior wisdom or fitness, but who is to determine this point? None can be regarded at all as authority. ' The essential rules of evidence' belong to all Tribunals, as they do to 'all nations governed by reason,' but 'technical Rules may infinitely vary' . . . They do infinitely vary. . . ." (MS. Opinions, pp. 13-13.)

54 Passing upon the sufficiency of proof in the claim of Edmund I. Forestall and others for the seizure and confiscation of the Schooner Felix, the commissioners under Art. XIV and XV of the Treaty of Guadalupe-Hidalgo said: " . . . the Board does not feel restrained by the rules of evidence observed in courts of common law jurisdiction from considering the fact as proved here which it thus appears was proved to the satisfaction of the Court in Louisiana." (MS. Opinions, I, 119.)

55 Letter Book of the Commissioner, p. 63.

56 This was the commission referred to in note 54, supra. See MS. Opinions, II, 866, 870.

57 MS. Opinion in the Louisa C. Shaw claim, pp. 1-2.

58 Report cited in note 45, supra, pp. 100, 101.

69 Report of Dec. 30, 1835, to the Secretary of State.

60 The decision in the claim of Guilford D. Young (MS. Opinions, II, 697, 699) is illustrative.

61 Idem.

62 Claim of Thomas Powell, Escambia (MS. Opinions, I, 294-295).

63 Opinion on the claim of W. W. Robinet and Company. By the rules of the Court of Commissioners of Alabama Claims, if claimants were naturalized citizens, authenticated certificates of their naturalization were to be appended to their petitions. (Report cited in note 45, supra, p. 131.)

64 Opinion on the claim of George M. Ryder and his nationality.

65 Le droit des gens, Bk. 2, Ch. 8, Sec. 104.

66 Clarke v. Morey, 10 Johns. 68, 71 (1813): ". . . b y the law of nations, an alien who comes to a foreign country is entitled so long as he conducts himself peaceably, to continue to reside there, under the public protection. . . . And it has now become the sense and practice of nations, and may be regarded as the public law of Europe . . . that the subjects of the enemy . . . so long as they are permitted to remain in the country, are to be protected in their persons and property and to be allowed to sue, as well as to be sued."

67 Benjamin Worth v. United States, No. 91; Report cited in note 45, supra, p. 40. See also Nos. 92, 237, 246.

68 The claim of John Burns was apparently the only one of this kind before the court. Report cited in note 45, supra, p. 41.

79 Friedrich Albert Schreiber and Arnold Otto Meyer v. United States, No. 740. Report cited in note 45, supra, p. 111. In support of the ruling there is a quotation from Lord Chief Justice Cockburn's work on nationality.

70 10 & 11 Victoria, c. 83. Cf. Markwald v. Attorney General [1920] 1 Ch. 348.

71 J. B. Moore, International Arbitrations, V, 4672-4673. Part of the task of the second court was to define "high seas" and 72 Confederate cruisers" within the meaning of the statute. ™

72 J. B. Moore, International Arbitrations, V, 4585, 4587.

73 Ibid., V, 4629.

74 Ibid., V, 4595. The action of the Attorney General is there referred to as a "rule of necessity, not of law".

75 Ibid., V, 4614.

76 Colmesnil's Case, 7 Ops. Atty. Gen., 523.

77 Cf. Frederick S. Dunn, The Diplomatic Protection of Americans in Mexico (1933), p. 52, comparing the plan of the commission under Arts. 14 and 15 of the Treaty of Guadalupe- Hidalgo with that of the 1839 mixed commission and that projected under the unratified 1843 convention with Mexico.

78 Sen. Ex. Doc. No. 30, 49th Cong., 1st Sess. (Report of James O. Broadhead and Somerville P. Tuck); House Ex. Doc. No. 194, 49th Cong., 1st Sess. (Report of Somerville P. Tuck.)

79 Durward V. Sandifer, Evidence Before International Tribunals (1939), p. 334. A part of the development described in this useful volume has come since the work of the latest commission whose work has been considered in the foregoing pages.

80 See, for example, J. B. Moore, International Arbitrations, V, 4543-4544.

81 Notes cited in note 36, supra.

82 Report of Jan. 31, 1838.