1 Reference is made to Administrative Decision No. I for the definition of other terms used herein. [Printed in the Journal, vol. 18, pp. 175–176.]Google Scholar

2 This proposition was formulated by Vattel (Book II, Chapter VI, Section 71, translation of edition of 1758 published by the Carnegie Institution of Washington, 1916):

“... Whoever ill-treats a citizen indirectly injures the State, which must protect that citizen. The sovereign of the injured citizen must avenge the deed and, if possible, force the aggressor to give full satisfaction or punish him, since otherwise the citizen will not obtain the chief end of civil society, which is protection.”

3 See opinion of Barge, Umpire, American-Venezuelan Commission, in Orinoco Steamship Company case, Ralston's Venezuelan Arbitrations of 1903 (hereinafter cited as “Venezuelan Arbitrations 1903”), at pages 84–85.Google Scholar

4 See case of Phelps, Assignee, v. McDonald, cited in note 23 post, where under the convention of 1871 Great Britain espoused a claim against the United States and a substantial award was rendered against the United States on a claim which in point of origin was British but which, prior to the making of the convention and to the presentation of the claim and to the making of the award, had lost its British nationality and vested in the assignee in bankruptcy for the benefit of American creditors.

The rule contended for by the German Agent was invoked by Chile in challenging the right of the arbitrator to make an award in the well-known Alsop Case espoused by the United States. Chile's contention was summarily rejected by King George V of Great Britain as “Amiable Compositeur” in an award handed down July 5, 1911 (V American Journal of International Law 1085). The original partners of Alsop & Co. were all American nationals. But at the time this arbitral convention was entered into, when the claim was presented to the arbitrator, and when the award was made, all of the original partners were dead and the claim was being prosecuted by the United States on behalf of their heirs and creditors. It was made to appear that at least some of these heirs and creditors were citizens of Chile but the arbitrator treated the claim as a unit and as possessing complete American nationality and made the award accordingly.

In the Daniel (or Piton) Case (Venezuelan Arbitrations 1903, page 507; also Ralston and Doyle's Report of French-Venezuelan Mixed Claims Commission of 1902, page 462) under the French-Venezuelan Convention of 1902 an award was made against Venezuela to the Venezuelan heirs of a deceased Frenchman (as stated in the additional opinion of the French Commissioner in the Massiani Case at page 234 of the volume last cited), where it appeared that the claim possessed original French nationality and was espoused by France.

The Petit Case (No. 255, French and American Claims Commission of 1880, Boutwell's Report, page 84) was espoused by France against the United States and an award made in claimant's favor. It was made to appear that after Petit's property was wrongfully seized by the United States he became a naturalized citizen of the United States and so remained for a period of 13 years, when he was formally reinstated as a citizen of France.

The Estate of William E. Willet v. Venezuela (No. 21, United States and Venezuela Claims Commission, Convention of December 5, 1885, III Moore's International Arbitrations (hereinafter cited as “Moore's Arbitrations”) 2254 and IV ibid. 3743) involved a claim against the Government of Venezuela originally owned by Willet, an American citizen, which he held until his death. The claim was first presented to a commission by his widow as administratrix. The Government of Venezuela claimed that Mrs. Willet and her children were Venezuelan citizens and that as they were the beneficial owners of this claim the commission had no jurisdiction over it. An award was made in favor of the estate, the commission holding that the claim, being American in its origin, could be presented by the administratrix “whatever may have been her own personal status”. The fact that the beneficial owners of the claim were of Venezuelan nationality does not appear to have given the commission any concern.

5 Ralston, Umpire of the Italian-Venezuelan Mixed Claims Commission, in the Corvala Case (Venezuelan Arbitrations 1903, at page 809) reluctantly adopted the rule contended for here by the German Agent but protested that its effect was to “perpetrate an injustice” and added that “If the proposition now presented were one of first impression” the umpire would probably have reached a different conclusion.

Here it will be observed that the umpire was careful in dismissing the claims in question for want of jurisdiction of the commission over them to provide that the dismissal was “without prejudice to the rights of any of the claimants to claim against Venezuela before any court or commission which may have suitable jurisdiction, or to take such other action as they may be advised.” The rights continued to exist notwithstanding the lack of jurisdiction of the commission to enforce them.

In discussing this rule Borchard in his “Diplomatic Protection of Citizens Abroad” (1915) uses this language (section 285, at page 630, and section 310, at page 666):

“ . . . If it is the injury to the state in the person of its citizen which justifies diplomatic interposition, the mere fact that the claim subsequently by operation of law passes into the hands of alien heirs would not seem to modify the injury to the state. . . . ”

“ . . . It is not so clear in theory why a claim, which, having originally accrued in favor of a citizen, has passed into the hands of an alien, should necessarily forfeit the protection of its original government, especially where it passes not by voluntary assignment but by operation of law. If the state has been injured by the original wrong done to its citizen, the mere transfer of the claim hardly seems to purge the national injury to the state. . . . ”

6 Miliani Case (decided by umpire), Italian-Venezuelan Commission (Venezuelan Arbitrations 1903, pages 754–762), see additional opinion of Italian Commissioner Agnoli at page 758.Google Scholar See also opinion of Commissioner Agnoli in the Brignone Case (decided by umpire) at pages 710–712 ibid.; dissenting opinion of French Commissioner L. de Geofroy in the Wiltz Case as reported in III Moore's Arbitrations at pages 2250–2253.Google ScholarSee also contention of British agent in Stevenson Case, British-Venezuelan Commission, Venezuelan Arbitrations 1903, at page 439.Google Scholar

7 The Stevenson Case (British-Venezuelan Commission, Venezuelan Arbitrations 1903, at pages 451–455) is cited as one of the leading cases sustaining the rule invoked by the German Agent.Google Scholar It is clear from the opinion of Umpire Plumley that his decision denying jurisdiction of the commission to decide a portion of the claim espoused by Great Britain against Venezuela was controlled by the language of the protocol creating the commission (see pages 446 and 451). It is interesting to note that in that opinion two different periods were fixed for determining the nationality of a claim for jurisdictional purposes in addition to is original nationality, viz:

8 The decision of the Supreme Court of the United States in Burthe v. Denis (1890), 133 U. S.514, is cited by the German Commissioner.Google Scholar A claim, French in origin, was presented by France on behalf of the executor of the estate of a French national for the value of property damaged through occupation by the military authorities of the United States. Some of the heirs of the French national who had a beneficial interest in the claim were French citizens, others American citizens. Without undertaking to adjudicate the rights of the American heirs, the court held that the commission, under the express terms of the convention of January 15,1880, between the United States and France creating it, was without jurisdiction to consider their claims and make an award in their favor. This is made clear by the following excerpt from the opinion:

“... the express language of the Treaty here limits the jurisdiction of the Commission to claims by citizens of one country against the government of the other. It matters not by whom the claim may have been presented to the Commission. That body possessed no authority to consider any claims against the government of either the United States or of France, except as held, both at the time of their presentation and of judgment thereon, by citizens of the other country.”

The Wiltz Case (III Moore's Arbitrations 2243), also cited by the German Commissioner, also arose under the convention between the United States and France of January 15,1880. Here, as above pointed out, the express language of the convention limited the jurisdiction of the commission to claims possessing the nationality of the espousing nation at the time of their presentation and judgment thereon. The presiding commissioner in his opinion (page 2246) expressly states that “This is a question of jurisdiction. In deciding it we must be governed by the language and meaning of the convention.” After deciding that the real and beneficial ownership of the claims espoused by France must be in French citizens to give the commission jurisdiction, he added “This appears to us to be the plain meaning of the first and second articles of the convention. They do not, in our judgment, admit of any other construction.”

The third and only other case cited in this connection by the German Commissioner is that of the administratrix of the estate of Jean Prevot, which was also decided by the commission created under the convention of January 15, 1880, between the United States and France. As already noted, the express terms of this convention precluded the commission from rendering an award against the United States in a claim or any part of a claim espoused by France where the beneficial ownership was not in a French citizen. The commission therefore found that, while Jean Prevot had at the time of his death a valid claim against the United States for the sum of $2,425.15, Mrs. Bodemuller, one of the children of Prevot, was an American citizen, and as she would receive one-sixth of her father's estate and therefore had a one-sixth interest in this claim the commission deducted from the amount which it found was due Prevot by the United States at the time of his death one-sixth thereof and allowed the claim for the balance, $2,020.94. Thereupon Mrs. Bodemuller filed suit against the United States in the United States District Court for the Western District of Louisiana to recover $404.18, the amount which the commission found was due her but which it was without jurisdiction to award to her (Bodemuller v. United States (1889), 39 Federal Reporter 437). The district judge held that the court had jurisdiction but that the suit should have been brought by the administratrix of the succession of Prevot. Later such a suit was brought against the United States by the administratrix but was defeated on a plea of the statute of limitations (II Moore's Arbitrations 1152). This case expressly recognized the existence of the right of the American heir of the French citizen Prevot but denied the jurisdiction of the commission created under the convention of January 15, 1880, to declare that right.

9 Hargous v. Mexico, III Moore's Arbitrations 2327–2331, where Thornton, Umpire, under the convention of July 4, 1868, between the United States and Mexico held that the claim put forward by the United States was in origin a German claim; that it was not divested of the quality of German nationality by its transfer to an American citizen; that the claim constituted a valid indebtedness of the Mexican Government and that Germany (the nation injured through injury of her national) “might remonstrate against the refusal of the Mexican Government to pay the claim” but under the terms of the convention between the United States and Mexico creating the commission it was without jurisdiction to hear the claim.

Wm. Dudley Foulke, Administrator, v. Spain, No. 105, United States and Spanish Claims Commission of 1871, also reported in III Moore's Arbitrations 2334, where Baron Lederer, Umpire, held that under the terms of the convention constituting the commission a claim of a deceased Spanish citizen (Eduardo Cisneros) against Spain which had passed by succession to his American heir was not within the jurisdiction of the commission, notwithstanding Spain might be indebted to the claimant. The umpire while conceding the existence of the right held that the commission lacked jurisdiction to declare it. At the same time he held that if the father of the heir on whose behalf the administrator was asserting the claim had been a citizen of the United States instead of a Spanish subject and if he “by a last will had conferred his property on a Spanish subject, the claim of this Spanish subject, being an heir of a United States citizen, would have been within the jurisdiction of the American-Spanish commission.” This holding is significant, clearly indicating that the umpire found no obstacle in the form of any rule of international law which would prevent the United States from asserting against Spain a claim American in origin, even though by will or otherwise it had vested in a Spanish subject and was owned by a Spanish subject at the time of its espousal and presentation by the United States.

The Sandoval, Francisco and Clement Saracina, and Jarrero cases (III Moore's Arbitrations 2323–2325) all arose under the Treaty of Guadalupe Hidalgo between the United States and Mexico of February 2, 1848, and the Act of the Congress of the United States approved March 3, 1849, passed in pursuance of the provisions of Article XV of that treaty. The Board of Commissioners, constituted as provided by the treaty and act of Congress, held that under the express language of the treaty it was not sufficient in order to confer jurisdiction on the commission that the claim was American in its origin but that it must have been American-owned at the time the treaty was signed. These decisions were controlled by the express language of the treaty. The commission, however, took pains to say in the first three of these cases that “The treaty does not discharge the Mexican republic from claims of this character” and in the fourth case the commission held that “There can be no doubt of the validity of the claim against the Government of Mexico.” In all of these cases it is clear that the commission, while recognizing the continued existence of rights in the claimants with a corresponding obligation on the part of the Government of Mexico, simply held that these rights and obligations were not within the terms of the treaty.

10 See opinion of Ralston, Umpire of the Italian-Venezuelan Mixed Claims Commission, in the Corvala Case, Venezuelan Arbitrations 1903, at page 810.Google Scholar

The claim of the heirs of Massiani submitted to the French-Venezuelan Mixed Claims Commission of 1902 (Report of Ralston and Doyle, Senate Document No. 533, 59th Congress 1st Session, at pages 211 and 242, 243) was one in which the Government of Venezuela became indebted to Thomas Massiani, a citizen of France. After this indebtedness accrued Massiani died leaving a widow and children surviving him. Thereafter the claims convention of February 19, 1902, between France and Venezuela was entered into. The claim, which was French in origin, was put forward by France in behalf of the widow and children. It appeared that Thomas Massiani, the original claimant, had for years been domiciled in Venezuela. There he married a Venezuelan woman and there his children had been born. There death overtook him. There he was buried, and there his widow and children continued to reside. Umpire Plumley held that the widow and children were “under the terms of the protocol” nationals of Venezuela. In a headnote prepared by the umpire it was held:

“The indebtedness of Venezuela to the estate of Thomas Massiani may still remain, but the forum is certainly changed. The present forum is the one constituted for Venezuelans. This forum is the result of the selection of their paternal ancestor and their own selection after attaining majority.”

The umpire concludes his opinion thus:

“This claim is to be therefore entered dismissed for want of jurisdiction, but clearly and distinctly without prejudice to the rights of the claimants elsewhere, to whom is especially reserved every right which would have been theirs had this claim not been presented before this mixed commission.”

11 As was said by Mr.Story, Justice of the Supreme Court of the United States in Comegys v. Vasse (1828), 1 Peters 193, at page 216, in dealing with the nature of the claim of an American citizen against a foreign nation:Google Scholar

“... With reference to mere municipal law he may be without remedy; but with reference to principles of international law he has a right both to the justice of his own and the foreign sovereign. ...”

Again, the Supreme Court of the United States in Williams v. Heard (1891), 140 U. S.529, in holding that a claim of an American national against Great Britain was “property,” used this significant language (pages 540–541 and 545):Google Scholar

“... while the claimant was remediless with respect to any proceedings by which he might be abe to retrench his losses, nevertheless there was at all times a moral obligation on the part of the government to do justice to those who had suffered in property. . . . But the Act of Congress did not create the rights. They had existed at all times since the losses occurred. They were created by reason of losses having been suffered. . . . the claim must be regarded as growing out of the Act [of Congress] of 1882, because that Act furnished the remedy by which the rights of the claimant might be enforced. . . .”

See also note 23 post.

12 See Agreement between the United States and Germany signed at Berlin August 10, 1922, the preamble of which recites that

“The United States of America and Germany, being desirous of determining the amount to be paid by Germany in satisfaction of Germany's financial obligations under the Treaty concluded by the two Governments on August 25, 1921, which secures to the United States and its nationals rights specified under a resolution of the Congress of the United States of July 2, 1921, including rights under the Treaty of Versailles, have resolved to submit the questions for decision to a mixed commission,” etc.

13 Vattel, Book II, Chapter XVII, Section 263.Google Scholar

14 Decisions and Opinions, pages 1–3.Google Scholar[vol. 18, pp. 175–176 of the Journal.]Google Scholar

15 42 United States Statutes at Large 105; this joint resolution will hereafter be des-ignated “resolution of Congress.”

16 Article III of the Treaty of Berlin provides that “The present treaty shall be ratified in accordance with the constitutional forms of the high contracting parties and shall take effect immediately on the exchange of ratifications which shall take place as soon as possible at Berlin.” The proclamation of President Harding which bears date of November 14, 1921, recites that “the said treaty has been duly ratified on both parts, and the ratifications of the two countries were exchanged at Berlin on November 11, 1921.” See also subdivision 5 of Article II of the Treaty of Berlin in connection with Article 440 of the Treaty of Versailles.

17 This construction of the Treaty of Berlin has been expressly adopted by Germany in a formal declaration presented to this Commission by the German Agent on May 15, 1923, in which it was declared that “Germany is primarily liable with respect to all claims and debts coming within the jurisdiction of the Mixed Claims Commission under the Agreement of August 10, 1922.” Minutes of Commission, May 15, 1923.

Article I of the Agreement of August 10, 1922, establishing this Commission and defining its powers and jurisdiction, provides that

“The commission shall pass upon the following categories of claims which are more particularly defined in the Treaty of August 25, 1921, and in the Treaty of Versailles:

“ (1) Claims of American citizens, arising since July 31, 1914, in respect of damage to, or seizure of, their property, rights and interests, including any company or association in which they are interested, within German territory as it existed on August 1, 1914;

“ (2) Other claims for loss or damage to which the United States or its nationals have been subjected with respect to injuries to persons, or to property, rights and interests, including any company or association in which American nationals are interested since July 31, 1914, as a consequence of the war;

“ (3) Debts owing to American citizens by the German Government or by German nationals.”

See also paragraph (e), subdivision (2) of paragraph (h), and paragraph (i) of Article 297 and Article 243 of the Treaty of Versailles.

18 The quotation is from the resolution of the Senate of the United States of October 18, 1921, embodied in the ratification of the treaty by President Harding of October 21, 1921, and made a part of the treaty through the exchange of ratifications at Berlin on November 11, 1921.

19 A large proportion of the financial obligations fixed by paragraph 9 of Annex I to Section I of Part VIII of the Treaty of Versailles as carried by reference into the Treaty of Berlin did not arise under the rules of international law but are terms imposed by the victor as one of the conditions of peace.

20 Decisions and Opinions, page 76.Google Scholar[vol. 18, p. 614 of the JOURNAL.]Google Scholar

21 Article 232 of the Treaty of Versailles, which is read into and forms a part of the Treaty of Berlin, provides that Germany “will make compensation for all damage done to the civilian population of the” United States, etc.

The agreement of August 10, 1922, establishing this Commission and defining its powers and jurisdiction, provides that

“The commission shall pass upon the following categories of claims which are more particularly defined in the Treaty of August 25, 1921, and in the Treaty of Versailles:

“ (1) Claims of American citizens, arising since July 31, 1914, in respect of damage to, or seizure of, their property, rights and interests . . . ;

“ (2) Other claims for loss or damage to which the United States or its nationals have been subjected ...”

This language clearly indicates that the parties to the agreement construed the Treaty of Berlin as embracing only such private claims as are American in their origin.

22 See note 16 supra.

23 The case of Phelps, Assignee, v. McDonald et al. (1879), 99 U. S. (9 Otto) 298, was one in which McDonald, a British subject, had a valid claim against the Government of the United States for wrongful seizure of his property in 1865. McDonald became bankrupt in 1869, and the title to his claim passed to his American assignee in bankruptcy, who brought suit against him in a court of the United States and procured personal service on him. The Supreme Court of the United States held that the title to the claim passed to the assignee in bankruptcy and that he and not McDonald was entitled to receive payment from the United States. Mr. Justice Swayne in delivering the opinion of the Supreme Court of the United States said:

“... Nor is it material that the claim cannot be enforced by a suit under municipal law which authorizes such a proceeding. In most instances the payment of the simplest debt of the sovereign depends wholly upon his will and pleasure. The theory of the rule is that the government is always ready and willing to pay promptly whatever is due to the creditor. ... It is enough that the right exists when the transfer is made, no matter how remote or uncertain the time of payment. . . .

“If the thing be assigned, the right to collect the proceeds adheres to it, and travels with it whithersoever the property may go. They are inseparable. Vested rights ad rem and in re—possibilities coupled with an interest and claims growing out of property—pass to the assignee. The right to indemnity for the unjust capture or destruction of property, whether the wrongdoer be a government or an individual, is clearly within this category.”

See also note 11 supra.

24 Article I of the Treaty of Berlin provides that

“Germany undertakes to accord to the United States, and the United States shall have and enjoy, all the rights, privileges, indemnities, reparations or advantages specified in the aforesaid Joint Resolution of the Congress of the United States of July 2,1921, including all the rights and advantages stipulated for the benefit of the United States in the Treaty of Versailles which the United States shall fully enjoy,” etc.

25 See note 18 supra and the quotation from the resolution of the Senate of the United States of October 18, 1921.

26 See Alsop Case and Willet Case cited in note 4 supra.

27 It would seem that under the existing statute, enacted February 26, 1896 (29 United States Statutes at Large 28, 32), the duty devolves upon the Secretary of State in the first instance to dist ibute such fund as may be paid by Germany to the United States in satisfaction of the awards of this Commission, but in the event of a contest as to ownership to refer contesting parties to the municipal tribunals where the contest will be determined according to local jurisprudence.

See also Part of Opinion by the Hon. Joshua Reuben Clark, Jr., Solicitor for the Department of State, August 14, 1912, in re Distribution of Alsop Award, VII (1913) American Journal of International Law 382.

28 While the German Commissioner did not concur in Administrative Decision No. I, he and the German Government have nevertheless accepted it as the law of this case, binding both Governments.

29 Not until June 2, 1924 (43 Statutes at Large 253), were all non-citizen Indians born within its territorial limits made citizens of the United States.

30 Frelinghuysen v. United States ex rel. Key (1884), 110 U. S.63et seq.Google ScholarUnited Statesex rel. Boynton v. Blaine (1891), 139 U. S.306.Google Scholar

31 This distinction between lump-sum awards made in favor of the demanding government as such, in which the fund paid must be distributed by the nation receiving it, and awards made on specific claims put forward on behalf of designated claimants is clearly drawn in the case of the United States v. Weld (1888), 127 U. S. at pages 55–56.Google Scholar A case frequently cited in support of the contention that the fund paid belongs to the nation receiving it is that of The Great Western Insurance Company v. United States (1884), 19 Court of Claims Reports 206 et seq., where the court was dealing with the Geneva lump-sum award made in favor of the overnment of the United States as such without any attempt on the part of the arbitral tribunal to make an award in favor of any specified claim. But this case can have no weight as a precedent inasmuch as the Supreme Court of the United States held that the Court of Claims was without jurisdiction, and expressly declined to consider the capacity in which the United States acted in presenting claims on behalf of its nationals and its right to deal with and dispose of this fund when paid (112 U. S. 193).

32 The provision in the Act of February 26, 1896, 29 United States Statutes at Large 28, 32, reads as follows:

“Hereafter 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.

“The Secretary of State shall determine the amounts due claimants, respectively, from each of such trust funds, and certify the same to the Secretary of the Treasury, who shall, upon the presentation of the certificates of the Secretary of State, pay the amounts so found to be due.

“Each of the trust funds covered into the Treasury as aforesaid is hereby appropriated for the payment to the ascertained beneficiaries thereof of the certificates herein provided for.”

The Chairman of the Appropriations Committee of the House of Representatives in reporting this measure to the House said (Congressional Record, Volume 28, Part 2, page 1058;Google Scholar VII (1913) American Journal of International Law 420):Google Scholar

“ . . . The trust funds in the custody of the State Department have heretofore, by the officer having them in charge, been deposited where he pleased, deposited generally in banks. The Secretary of State has suggested, and the Committee on Expenditures in the State Department of the House of Representatives have presented to the Committee on Foreign Affairs, the draft of an amendment to the existing law. By it we have provided that these funds shall be deposited and covered into the Treasury and paid out on certificates of the Secretary of State; a reform which I think will meet the approval of every member of the House.”

33 See note 18 supra and the quotation from the resolution of the Senate of the United States of October 18, 1921.Google Scholar

34 See Decisions and Opinions, page 99.Google Scholar[Vol. 18, p. 633 of the Journal.]Google Scholar

35 Frelinghuysen v. United Statesex rel. Key (1884), 110 U. S. 63 et seq. United Statesex rel. Boynton v. Blaine (1891), 139 U. S.306.Google Scholar