tially judicial in character and has often been delegated to the courts. 60 Certain claims virtually against the government may be decided by prize courts. Such courts may decree restitution of captured vessels, compensation if the vessel has been requisitioned or destroyed, or damages if the capture has been illegal. Damages are in theory awarded against the officer making the capture, but in fact such awards are usually paid by the government. Federal District Courts have been given exclusive jurisdiction in prize matters with appeal to the Supreme Court. They are free to apply international law and treaty and hold it their duty to do so except as expressly modified by act of Congress.62 Both neutral and enemy persons are entitled to present claims in such courts.63 It has been held that prize courts may be constituted by Congress alone. Courts set up under authority of the President in occupied territory cannot exercise prize jurisdiction.64 61 Congress has also established a Court of Claims from which appeal may be taken to the Supreme Court. Its jurisdiction extends to claims presented by aliens whose governments will reciprocate, not founded on tort, or treaty.5 The decisions of this court or of the Supreme Court, if appeal is taken, are considered final and Congress always appropriates therefor. The Court of Claims may also consider any claim presented to it by Congress and make a report thereon, which however is not binding. Under the Tucker Act of 1887 and subsequent amendments the Federal District Courts 60 Moore, Digest, 7: 593-597. 66 67 61 Judicial Code of 1911, sec. 24, par. 3; sec. 250, par. 2. 62 The Nereide, 9 Cranch 388; The Paquette Habana, 175 U. S. 677, supra, sec. 106. 63 The claimant in the Paquette Habana, supra, was an enemy subject. See British case, The Mowe, L. J. (1915), p. 57, Am. Jl. Int. Law, 9: 547. 64 Jecker v. Montgomery, 13 How. 498. 65 Judicial Code of 1911, secs. 136, 145, 153, 155; 36 Stat. 1135, Willoughby, op. cit., p. 982. 66 U. S. v. New York, 160 U. S. 615; In re Sanborn, 148 U. S. 226; Willoughby, p. 1275. 67 Judicial Code of 1911, sec. 151. enjoy concurrent jurisdiction with the Court of Claims in claims not exceeding $10,000.68 Congress has often set up special courts or commissions to settle claims of individuals. Of this character may be mentioned commissions to liquidate the claims settled by the treaty with Spain of 1819, claims settled by the Alabama Arbitration of 1871, and claims settled by the Spanish treaty of 1898. Sometimes special jurisdiction is conferred to settle particular claims. So the Court of Claims was given jurisdiction to settle the French Spoliation claims, the courts were given jurisdiction to settle various specified types of claims arising out of the Civil War, and by an act of 1860 the federal courts were given jurisdiction to settle the claim of one Repentigny to a tract of land in Michigan founded on an ancient French grant. The act expressly provided in this case that the decision should be based on "(1) the law of nations, (2) the laws of the country from which the title was derived, (3) the principles of justice, and (4) the stipulations of treaties.' 148. By International Courts. 70 National courts are bound by national law if expressed in unmistakable form, and may not be free to apply international law and treaty. All international claims, whether decided upon by national courts or not, if not satisfactorily settled, may be presented to the President through the Department of State. As we have seen they may then be settled by political negotiation and agreement or submission to a political body such as a council of conciliation. However, the department may submit them to arbitration or an international court and under the provisions of certain treaties it is bound to so submit certain types of controversies. By a treaty with various American states adopted at the Fourth International American Congress in 1910: 71 "The High Contracting Parties agree to submit to arbitration all claims for pecuniary loss or damage which may be presented by their respective citizens and which cannot be amicably adjusted through diplomatic channels, when said claims are of sufficient importance to warrant the expense of arbitration." "The decision shall be rendered in accordance with the principles of international law." By the II Hague Convention of 1907 armed force cannot be used for the recovery of contract debts between governments unless an offer of arbitration has been refused, and by a large number of treaties concluded in 1908 for five years, most of which have since been renewed, the United States has agreed to submit to arbitration "Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two contracting parties and which it may not have been possible to settle by diplomacy" and which "do not affect the vital interests, the independence, or the honor of the two Contracting States, and do not concern the interests of third parties." 72 The League of Nations Covenant (Art. XIII) recommends the submission of specified types of cases to arbitration or to the proposed International Court of Justice but does not require it. In making such submissions, if no general treaty exists, a special treaty to which the Senate has consented is necessary for the submission to arbitration of national claims or claims by foreign states or individuals against the United States." Claims of American citizens against foreign states may be submitted on the basis of a compromis under authority of the President or Secretary of State, since it is within the discretion of these officials to decide whether such claims shall be pressed at all. Even if an arbitration of such United States the government claims results successfully for the may withhold the money from the individual claimant if it discovers fraud. Thus claimants in the L'Abra and Wyle claims against Mexico were unable to compel the Secretary of State by mandamus to turn over to them the money paid by Mexico to the United States as a result of the arbitration.75 The United States govern 72 Malloy, Treaties, p. 814. 73 Foster, Yale L. J., 11: 77; Moore, Digest 5: 211. 74 J. B. Moore, Pol. Sci. Quar., 20: 403; Willoughby, op. cit., p. 475; Moore, Digest, 5: 211. 75 L'Abra Silver Mining Co. v. U. S., 175 U. S. 423 (1899); Foster, The Practice of Diplomacy, 374-377. ment had discovered fraud after the arbitration and ultimately returned the money to Mexico. Where a general arbitration treaty exists, the better authorities hold that the President may submit claims falling within it on his own authority, unless the general treaty requires otherwise. The Senate however has taken a different view.76 Arbitration awards are considered final and obligatory and have practically always been met by the United States." In the few cases where they have not, the United States has contended that the arbitration court exceeded or abused its powers.78 Unless such exception is taken at once by the political organs, the courts hold arbitration awards authorized by treaty the supreme law of the land." Although often recommended, no international court of justice was established until 1921. The International Prize Court to be set up by the XII Hague Convention of 1907 never came into being. Such a court, authorized by Article XIV of the League of Nations Covenant, was established by action of the Second Assembly of the League, September, 1921, on the basis of a code prepared by a commission of jurists in 1920 and approved with modifications by the council and by the First Assembly and ratified at that time by 29 members of the League.80 An international court of claims before 76 Willoughby, op. cit., p. 475, supra, sec. 62, infra, sec. 163. The AngloAmerican claims treaty of 1910, differing from those of 1853 and 1871, requires that each schedule of claims under the treaty be approved by the Senate as a special treaty (Charles, Treaties, p. 50, and Sir Cecil Hurst in British Year Book of International Law, 2: 193). 77 I Hague Conventions, 1907, pp. 81-83. 78 Moore, Digest, 7: 59-62; Darby, International Tribunals, 1904, p. 785, No. 46. 79 Comegys v. Vasse, 1 Pet. 193, 212; La Ninfa, 75 Fed. 513 (1896); Moore, Digest, 7: 55. 80 For draft plan of organization by Root et al. see Am. J. Int. Law, Supp., 14: 371 (Oct., 1920), and for code as adopted see A League of Nations, 4: 281 et seq. 13 additional states had signed but not ratified the code in September 1921 and 13 states had accepted the clause providing for compulsory jurisdiction, ibid., 278, 291. which private individuals might bring cases against governments has also been suggested. With reference to such a court Borchard says: 81 "The divorce of pecuniary claims from political considerations a union, which now not only results in inexact justice, but often gross injustice, and the submission of such claims to the determination of an independent tribunal, must make a universal appeal to man's sentiment for justice." C. Power to Perform National Obligations. 149. Appropriations. A decision having been made as to what action is required in order to meet the obligation, it becomes the duty of organs empowered thereto by the Constitution to perform those acts. Under the power to raise taxes for the general welfare, Congress undoubtedly has power to make appropriations for this purpose. Where Congress itself has decided that the obligation is due it will of course make the appropriation. Where a decision by a national court acting within its jurisdiction or an international arbitration court has been given, appropriations have been made as a matter of course. Where the Department of State has admitted the validity of a claim Congress has generally made the appropriation. Thus on January 30, 1896, Secretary of State Olney, after discussion with the Italian Ambassador with reference to the lynching of three Italian citizens in Colorado, reported to the President: "The facts are without dispute and no comment or argument can add to the force of their appeal to the generous consideration of Congress." 82 President Cleveland said in his message to Congress of February 3, 1896: 8 83 "Without discussing the question of the liability of the United States for these results, either by reason of treaty obligations or under the general rules of international law, I venture to urge upon the Congress the propriety of making from the public Treasury prompt and reasonable pecuniary provision for those injured and for the families of those who were killed." 81 Borchard, op. cit., p. 864. See also pp. 328, 373, 443. |