but are often accepted. Under the Bryan Peace treaties concluded with twenty states in 1914 and 1915, controversies not otherwise settled must be submitted to a joint commission before force is restored to. Similar provision is made in the League of Nations Covenant (Article XV).57

The controversy may be settled by the conclusion of a treaty which is of course binding on the United States. Many claims have been thus settled. The claims of the United States on account of spoliations by French vessels before 1800 and the claims of France for reparation on account of the alleged nonfulfillment of the alliance treaty of 1778 were balanced off by the treaty of 1801. Claims against France were liquidated by a treaty concluded in 1831. Treaties of peace usually liquidate prewar claims. This was true of the treaties of Guadaloupe Hidalgo and Paris. By article VII of the latter:

"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."

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Often such a treaty liquidation will involve an obligation of the Government to compensate its own citizens.5 This was true of the provision just stated, which was followed by the statement that:

"The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article."

Boundary questions have often been settled by treaty, as was the Maine Boundary by the Webster-Ashburton treaty of 1842 and the Oregon boundary by a treaty of 1846.

The power to settle claims against the government by agreement has sometimes been delegated to officers other than the Secretary of State. Thus an act of March 2, 1919, provided:

57 Canadian Boundary controversies must be submitted to a commission

by art. viii of the treaty of 1911, Charles, Treaties, p. 42. 58 Borchard, op. cit., p. 379; Moore, Digest, 6: 1025. 59 40 Stat., c. 94, sec. 3, Comp. Stat., 3115, 14/15c.

"The Secretary of War, through such agency as he may designate or establish, is empowered, upon such terms as he or it may determine to be in the interest of the United States, to make equitable and fair adjustments and agreements, upon the termination or in settlement or readjustment of agreements or arrangements entered into with any foreign government or governments or national thereof, prior to November twelfth, nineteen hundred and eighteen, for the furnishing to the American Expeditionary Forces or otherwise for war purposes of supplies, materials, facilities, services, or the use of property, etc."

147. By National Courts.

The interpretation and application to concrete circumstances of international law and treaty is not in essence a political or legislative act and undoubtedly the political organs may delegate power to make such interpretation to other organs. This power is essentially judicial in character and has often been delegated to the

courts.

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. 60 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

Congress has also established a Court of Claims from which appeal may be taken to the Supreme Court. Its jurisdiction ex

60 Moore, Digest, 7: 593–597.

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.

tends to claims presented by aliens whose governments will reciprocate, not founded on tort, or treaty.65 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 enjoy concurrent jurisdiction with the Court of Claims in claims not exceeding $10,000.68

67

Congress has often set up special courts or commissions to settle particular claims. 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.

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 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.

68 Ibid., sec. 24, par. 20.

69 U. S. v. Repentigny, 5 Wall. 211 (1866).

70 Supra, sec. 12.

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.73 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 71 Charles, Treaties, etc., p. 346.

72 Malloy, Treaties, p. 814.

73 Foster, Yale L. J., 11: 77; Moore, Digest 5: 211.

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such claims shall be pressed at all. Even if an arbitration of such claims results successfully for the United States the government 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 government 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 them 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 com

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.

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.

79 Comegys v. Vasse, 1 Pet. 193, 212; La Ninfa, 75 Fed. 513 (1896); Moore, Digest, 7:55.