United States fifteen and a half million dollars for damages caused to American commerce by the depredation of

act of June 5, 1882, 22 Stat. 98, c. 195, 're-establishing the Court of Commissioners of Alabama Clains and for the distribution of unappropriated moneys of the Geneva Award,' is not a claim growing out of the treaty of Washington within the sense of the word 'treaty,' as used in Rev. Stat. sec. 1066.

"The payment of the expenses of the Geneva Arbitration has not been charged by Congress upon the fund received under the award made there."

In regard to the question of whether these claims grew out of a treaty or not the opinion, after referring to the case of Alling vs. United States 114 U. S. 562, MILLER J., which was based on a claim paid by Mexico pursuant to a treaty in which it was held that the court did not have jurisdiction, says (p. 56):

"The reason of the ruling by this court in that decision is plain. The claim there in controversy was expressly recognized as a specific claim by the commission organized under the provisions of the treaty with Mexico, and was, therefore, dependent upon the treaty, and grew directly out of it.

"In this case the reverse is true. The treaty of Washington did not recognize this claim as a specific claim. The award of $15,500,000 directed to be paid by Great Britain, was to the United States as a nation. The text of the treaty itself speaks of the 'claims on the part of the United States,' and in article 7 the gross sum was to be paid by Great Britain to the United States.' It is not necessary to discuss whether, in the absence of any action by Congress as to the distribution of this fund, there could have been any legal or equitable right in a person or corporation to any portion of it. The fact that the Congress of the United States undertook to dispose of this fund, and to administer upon it, in accordance with its own conceptions of justice and equality, precludes, at least for the purposes of this decision, judicial inquiry into such questions. The claimants had to rely upon the justice of the government, in some of its departments, for compensation in satisfaction of their respective claims; and this compensation, the various acts of Congress, heretofore mentioned, provided. The claimant in this case does not seek to recover upon any supposed obligation created by the treaty of Washington, but upon the specific appropriation made in the act of June 2, 1886. It is under this act that a means of satisfaction of this claim was provided. The claim may, therefore, be said to be 'founded upon a law of Congress,' within the meaning of sec. 1059, Rev. Stat., and therefore clearly one, of which the Court of Claims could take jurisdiction.

"It may be said, in opposition to this view of the case, that had there been no treaty of Washington, there would have been no fund of $15,500,000 to distribute, the act of June 5, 1882, would never have been passed, and therefore, that the treaty is the basis of all the subsequent legislation, and consequently the basis of this claim; in other

Confederate cruisers which had either been built or sheltered in British harbors.

words, that therefore, this claim is 'dependent upon and grows out of' the treaty of Washington.

"We are of opinion, however, that such a dependency upon or growing out of, is too remote to come within the meaning of sec. 1066, Rev. Stat. In our view of the case, the statute contemplates a direct and proximate connection between the treaty and the claim, in order to bring such claim within the class excluded from the jurisdiction of the Court of Claims by sec. 1066, Rev. Stat. In order to make the claim one arising out of a treaty within the meaning of sec. 1066, Rev. Stat. the right itself, which the petition makes to be the foundation of the claim, must have its origin-derive its life and existence-from some treaty stipulation. This ruling is analogous to that of the ancient and universal rule relating to damages in common-law actions; namely, that a wrongdoer shall be held responsible only for the proximate, and not for the remote, consequences of his action.

"This disposition of this question renders it unnecessary to consider whether sec. 1066 has been repealed by the subsequent act of Congress, approved March 3, 1887, (supra,) since, if there has been such repeal, it is admitted, on all hands, that the Court of Claims would have jurisdiction of the case.

"On the merits of the case, we think there can be no doubt that the accounting officers of the Treasury Department were in error in charg ing to, and deducting from, the fund the expenses of the Tribunal of Arbitration at Geneva. The payment of those expenses had already been provided for by Congress by the act of December 21, 1871, 17 Stat. 24, and was never chargeable to this fund.

"In the language of the court below: Section five of the act of June 2, 1886, (supra), fixes the amount of the fund and specifies exactly what shall be deducted from it, and provides that the balance shall be distributed to the judgment creditors. The item thus deducted was not among those thus specified.

"We are of the opinion that the claimants are entitled to their share of the amount thus improperly deducted, and the decision of the Court of Claims is therefore affirmed."

Bachman vs. Lawson, U. S. Supreme Ct. 1884, 109 U. S. 659, GRAY, J. After the treaty of Washington of 1871 with Great Britain, Congress passed an act, June 23, 1874, directing that the court should allow, out of the amount awarded on any claim proved against the fund paid by Great Britain after the Alabama award, reasonable compensation to the counsellor and attorney for the claimant, and issue a warrant therefor, and that all other liens or assignments for services should be void.

The court held that an agreement made prior to the passage of the act was not affected by the act, and that the plaintiff was entitled to recover twenty-five per cent of an award made for damages by reason of the capture made by the Florida, pursuant to a written agreement. During the course of the argument the question was raised whether

Some of the cases cited3 involved the status of claims of British subjects against the United States decided by the Mixed Commission established under the same treaty.

or not the treaty of Washington had extinguished the claim against Great Britain and constituted the plaintiff's right of recovery solely a claim against the United States.

The court held, however, (p. 663) that: "The claim of the defendants was one for which compensation was justly due to them from Great Britain; was demanded by the United States from Great Britain as a matter of right; as such was awarded to be paid and was paid by Great Britain to the United States, in accordance with the provisions of the treaty between the two nations, and with the determination of the Tribunal of Arbitration created by that treaty; and was paid by the United States to the defendants, out of the money received from Great Britain, pursuant to the directions of the act of Congress, and to the decision of the Court of Commissioners established by that act. The defendants were the original owners of the claim, and the money was granted and paid by the United States to them as such. The money so demanded and received by the United States from Great Britain, and paid by the United States to the defendants, was money collected on the claim described in the agreement. Comegys vs. Vasse, 1 Pet. 193; Phelps vs. McDonald, 99 U. S. 298; Leonard vs. Nye, 125 Mass. 455."

Williams vs. Heard, U. S. Sup. Ct. 1891, 140 U. S. 529, LAMAR, J. This was a controversy over an award made by the Court of Commissioners of the Alabama claims in which the court followed Comegys vs. Vasse, 1 Pet. 193. Previous cases on this point are discussed and the point decided is stated in the syllabus as follows:

"When the judgment of a state court is against an assignee in bankruptcy in an action between him and the bankrupt, where the question at issue is whether the matter in controversy passed by the assignment, this court has jurisdiction in error to review the judgment.

"The sum awarded by the Tribunal of Arbitration at Geneva, when paid, constituted a national fund, in which no individual claimant had any rights, legal or equitable, and which Congress could distribute as it pleased.

"The decision and awards of the Court of Commissioners of Alabama Claims, under the statutes of the United States, were conclusive as to the amount to be paid upon each claim adjudged to be valid, but not as to the party entitled to receive it.

"A claim decided by that court to be a valid claim against the United States is property which passes to the assignee of a bankrupt under an assignment made prior to the decision.

"Comegys vs. Vasse, 1 Pet. 193, again affirmed and applied, and United States vs. Weld, 127 U. S. 51, distinguished.”

3 Phelps vs. McDonald, U. S. Sup. Ct. 1878, 99 U. S. 298, SWAYNE, J. McDonald was a British subject who had been adjudged a bankrupt in 1868. He had a claim against the United States which, under the treaty of Washington of 1871, was referred to what was known as the Mixed

Notwithstanding the fact that these claims are property rights, on numerous instances claims of citizens have been

Commission; an award was made in his favor. The plaintiff was his assignee in bankruptcy and claimed the award.

In the opinion all of the principal cases are discussed including Comegys vs. Vasse, 1 Peters, 193; Erwin vs. United States, 97 U. S. 392, Clarke vs. Clarke, 17 Howard, 315; Milnor vs. Metz, 16 Peters, 221; United States vs. O'Keefe, 11 Wallace, 178; Carlisle vs. United States, 16 Wallace, 147; and after reviewing Judge Story's opinion in the Comeyys case the court says (pp. 303–304):

"It is needless for us in this case to go over the same field of discussion. A few remarks, however, grounded chiefly upon that authority will not be out of place. It will be observed that the claim against Spain, and the claim against the United States, here in question, rested upon the same foundation, and that each was surrounded by like cir

cumstances.

"There is no element of a donation in the payment ultimately made in such cases. Nations, no more than individuals, make gifts of money to foreign strangers. 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 but a short time since our government could be sued, and it can be done now only under the special circumstances defined by the statute. It is enough that the right exists when the transfer is made, no matter how remote or uncertain the time of payment. The latter does not affect the former. Nor has an adverse decision any final effect. If the demand be just, and recog nized as valid by the law of nations, the claimant, or his government; if the latter choose to do so, may still press it upon the attention of the alien government.

"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 wrong-doer be a government or an individual, is clearly within this category. Erwin vs. United States, 97 United States, 392. The register's deed in this case bears date February 12, 1869. The title then became vested in the appellant. Thereupon he stood in the place of McDonald, and was clothed with all the rights which had belonged to the bankrupt before he became such. On the 25th of September, 1873, within less than five years after the assignment, an award was made by the mixed commission sitting under the treaty between the United States and Great Britain for the payment of $187,190 in satisfaction of the claim.

“In the light of these considerations, it would be sheer fatuity to

absolutely destroyed, so far as they existed against the foreign government, by the action of the Executive in making

deny the substantial character and value of the claim at the time of the transfer of the register's deed."

It was also held in this case that the sale of certain accounts, notes, judgments, etc., under an order of the district court did not divest the assignee of title.

It was also contended in this case that the suit was properly brought against the British government, and the United States court had no jurisdiction of the case. The court did not entertain that view of the

case.

The question as to whether or not the commission had jurisdiction to decide to whom the fund belonged and that its award to McDonald was final, was also disposed of by holding that such commission decided, generally, only as to the validity of a claim and the amount to be paid.

In regard to these two points the court says (pp. 306-308):

"This objection assumes facts which have no existence. The British government is in nowise, either in form or substance, a party to the record, and no final or coercive judicial action is sought except with respect to McDonald and White. In the progress of the case below George W. Riggs was appointed receiver, with authority to collect the fund. Of course, he could do nothing without the voluntary concurrence of the just and eminent British agent, who was in possession. By consent of parties the fund was delivered to the receiver, and in the final decree brought here for review he was directed to pay it over to the appellees, less certain charges and expenses incurred in procuring the award, and he was thereupon to be discharged from his office. We have heard no objection from any quarter to the placing of the fund in the hands of the receiver. Certainly none has been suggested in behalf of the sovereignty whose rights are said to have been invaded.

"But suppose, as has been suggested, that the money were in the British exchequer, at the seat of the home government, still the court below acquired jurisdiction of the parties and of the cause, and had an important duty to perform.

"Such commissions as that which made the award here in question usually decide only as to the validity of the claim and the amount to be paid. It is rarely, if ever, within their jurisdiction to decide upon the ownership of the claim. They have no means of compelling the attendance of parties or witnesses, no rules of pleading or procedure applicable to such a case, and the foreign element in the tribunal, at least cannot be supposed to have any knowledge of the law according to which the question is to be determined. The validity of the claim depends upon the law of nations; its ownership upon the local jurisprudence where the transfer is alleged to have been made.

"Hence, Comegys vs. Vasse, Clark vs. Clark, supra, and other like cases have arisen, involving conflicting claims to the fund awarded and nothing else.