THE LAW OF CLAIMS

IN

THE UNITED STATES.

THE MODE OF ADJUSTING CLAIMS AGAINST THE GOVERNMENT,

AND

THE PROCEDURE ADOPTED IN THEIR INVESTIGATION.

INTRODUCTORY.

THE OFFICERS AND TRIBUNALS HAVING JURISDICTION TO INVESTIGATE CLAIMS.

Claims against the United States are examined either by officers in the Departments of the Government, by the Court of Claims, the Commissioners of Claims, by committees of Congress, or by mixed commissions, under treaties.

Claims may be presented in either House of Congress, by petition or by bills introduced by members. These are generally referred to appropriate committees, and by these examined, and then a report is made to the House in which the claim was presented, and if in favor of the claim with a bill or joint resolution for an appropriation to make payment, which is considered and passed or rejected as other private bills. Sometimes the bill refers the examination of the claim to the Court of Claims or to the Commissioners of Claims.

The Court of Claims renders judgments subject to an appeal to the Supreme Court of the United States, in which final judgment is entered, and these judgments are regarded as conclusive and paid without examination by appropriations made by Congress.

The Commissioners of Claims examine certain classes of claims, and report their conclusions to the House of Representatives, where they are open to examination, and, subject to such supervision, are rejected or paid by appropriations.

The officers of the several Departments of the Government examine the ordinary claims for salaries and other expenses of the Government, when they are reported to the proper officers of the Treasury Department and paid out of appropriations made from time to time by Congress.

An examination of the statutes will show the jurisdiction exercised by the officers of the Departments, the Court of Claims, and the Commissioners of Claims, in the examination of claims, and the mode of procedure authorized by law.

It is not practicable to give all these in this connection, but sufficient will be presented as to each to show the general course of proceeding, with some of the acts of Congress relative to the Departments, and all relating to the Court of Claims and the Commissioners of Claims.

Mixed commissions, under treaties, exercise such jurisdiction and in such mode as the treaties provide, aided by such legislation of Congress as may be necessary, and their awards are paid by appropriations made by Congress.

THE LAW OF CLAIMS.

CHAPTER I.

OF WAR-REBELLION-THE CLASSES OF WAR-CLAIMS-GENERAL PRINCIPLES.

During the progress of the wars in which the United States have been engaged, many claims have been from time to time made against the Government, by citizens, corporations under national, or State, or foreign authority, and by aliens.46 Some of these may be properly arranged into classes, with a view to consider the questions of law which arise as to the liability of the Government to make compensation either under the Constitution, the laws of nations, common or statutory law. The expediency of providing compensation where no legal liability exists, involves questions which a powerful and just nation should be ever ready to consider.

45 For claims see American State Papers, class IX, vol. 1, "Claims."

Also Senate Mis. Doc. 43, 3d sess. 40th Cong., list of private claims brought before Senate from commencement of 14th to close of 39th Congress.

House list of private claims, vols. 1, 2, and 3, from 1st to 31st Congress, entitled "Digested Summary and Alphabetical List of Private Claims," &c. House Mis. Doc. 109, 42d Cong., 3d sess., digested summary private claims, presented to House of Reps. from 32d to 41st Congress inclusive. See an article on "Government Claims," 1 American (Boston) Law Review, 653, (July, 1867.)

46 Claims of aliens have frequently been made the subject of diplomatic arrangements. See report of Hon. R. S. Hale, November 30, 1873, to Secretary of State, of proceedings of commission under 12th article treaty of 8th May, 1871, between United States and Great Britain.

See" opinions of heads of Executive Departments and other papers relating to expatriation, naturalization, and change of allegiance," in House Ex. Doc. 1, part 1, 1st sess. 43d Congress, Report of Secretary of State on Foreign Relations, p. 1177, part 1, vol. 2. The act of July 27, 1868, (15 Stat., 243, sec. 2,) gave aliens a right to sue in the Court of Claims, when the government of such aliens gave a similar right to our citizens. In Fichera v. U. S., 9 Court Claims R., decided in 1873, Nott, J., said: "The only question presented by this case is whether, under the Italian law, an American citizen may maintain an action against the government of Italy. As we have before found, the perfected justice of the civil law made the government, in matters of ordinary obligation, subject to the suit of the citizen, in the ordinary tribunals of the country. We have found this right to be preserved under modern codes in Prussia, Hanover, and Bavaria, (Brown's Case, 5 C. Čls. R., p. 571;) in the republic of Switzerland, (Lobsiger's Case, id., p. 687;) in Holland, the Netherlands, the Hanseatic Provinces, and the Free City of Hamburg, (Brown's Case, 6 C. Cls. R., p. 193;) in France, (Dauphin's Case, id., p. 221;) in Spain, (Molina's Case, id., p. 269;) and in Belgium, (De Gives's Case, 7 C. Cls. R., p. 517.)

It was also shown in Brown's Case, (5 C. Cls. R., p. 571,) by a distinguished historical writer who was examined as a witness, Mr. Frederick Kapp, that this liability of a government under the civil law is not a device of modern civilization, but has been deemed inherent in the system, and has been so long established that, to use the phrase of the common law, the memory of man runneth not to the contrary. Therefore, it is to be expected that in Italy, the seat and fountain of the civil law, this same liability of government is to be found existing. The "Civil Code of the Kingdom of Italy" of 1866 recognizes, rather than establishes, the fundamental principle of liability; but it expressly provides (article 10) that, "in suits pending before the judicial authority between private persons and the public administration, the proceedings shall always take place formally at the regular session.

During the late rebellion, or civil war, property of immense value, of every kind, was taken, used, or destroyed, on sea and land, by rebel and Union civil authorities and military forces, without any compensation rendered. It is, of course, a duty of the Government to patiently and attentively hear every claimant for compensation or damages, and pass upon the merits of the claim in the light of reason and law.

Perhaps no classification can be made which would comprehend every It is also provided, by the third article of the same code, that "the alien is admitted to enjoy all the civil rights granted to citizens." These provisions establish the right of an Italian citizen to maintain his action in this court, within the meaning of the Act July 27, 1868, (15 Stat., p. 243, § 2,) which prohibits the subject of a foreign government from maintaining a suit for captured property, unls; "the right to prosecute claims against such government in its courts" is reciprocal and extends to citizens of the United States.

In England aliens have a remedy by "petition of right," regulated by act 23 and 24 Victoria, July 3, 1860. U. S. v. O'Keefe, 11 Wallace, 179; Carlisle v. U. S., 16 Wallace, 148. See Whiting's War Powers of the President, 51; The Venus, 8 Cranch; The Hoop, 1 Robinson, 196; The Amy Warwick, Sprague, J.

See Whiting's "War Claims," affixed to 43d ed. of "War Powers," p. 333, ed. of 1871 ; Perrin v. U. S., 4 Court Claims, 547.

The claims of aliens cannot properly be examined by a committee of Congress. This was so held in Report No. 498 of the Committee on War-Claims, first session Forty-third Congress, May 2, 1874. That case was as follows:

Charles Bombonnel represents, in a memorial referred to the committee, that he is and always has been a citizen of France, and resides in Dijon; that prior to the rebellion, and ever since, he owned certain real estate, with buildings thereon, at Carrollton, in the parish of Jefferson, Louisiana; that the military authorities of the United States took possession of these August 23, 1862, and that the said premises were thereafter used by the Union military authorities as a hospital, and for other purposes, to September 1, 1865; that the premises were damaged $1,600 by the occupancy, and that the use and occupation was worth $55 per month. He asks payment of $3,580 and interest. He alleges that he, by his agent, had leased the premises, and they were in the occupancy of his lessee when the military authorities required the tenant to vacate them in August, 1862. He also alleges that he has made repeated efforts to obtain justice through the military authorities, through the French legation at Washington, and through the Quartermaster-General, and has uniformly received the reply that there is no authority to settle the claim but Congress.

The right of a citizen of the United States to petition Congress is recognized in the first article of amendments of the Constitution, and it is declared this right shall not be abridged. The language of this amendment is that it shall be "the right of the people to petition," &c.

*

In Paschal's annotated Constitution, it is said the expression, "the people," here is used in the broad sense of the preamble, and a broader sense than "electors." (See Story, Const., sec. 1994-1995; discussions on 21st Rule of the House of Representatives in 1838 and 1846.) The preamble to the Constitution recites that "We, the people of the United States, * * do ordain this Constitution," &c.

The "people" who did ordain the Constitution, and to whom the right of petition is secured so that it cannot be abridged, were, and are, citizens of the United States. When such right is secured, it carries with it the duty of Congress to hear and consider the petition, for otherwise the right would be vox et præterea nihil.

But such right of petition is not thus secured to aliens. It is not a legislative duty to hear their petitions.

There is a department of government in which most questions of an international character may be considered, that which has charge of foreign affairs.

A foreign government may, on behalf of its citizens or subjects, treat with the Government of the United States in relation to claims of such citizens or subjects, but when this is done the United States can arrange to secure the claims of their citizens, or such other rights as international justice may require.

Congress cannot safely, and by piecemeal, surrender the advantages which may result from diplomatic arrangements.

This has been the general policy of the Government. Congress has not generally entertained the claims of aliens, and certainly should not unless on the request of the Secretary of State representing our foreign interests. In support of this the following is submitted:

"DEPARTMENT OF STATE, Washington, April 22, 1874. "SIR: In reply to your telegram stating that claims are presented by French citizens and other aliens through Congress, to the Committee on War-Claims, I have to remark

claim that has been or could be made. The liability of the Government for any class of claims growing out of the war of the rebellion depends somewhat upon the status of the so-called rebel States and the people thereof, their relations to the National Government, and the place where the right to demand compensation arose.

It is now determined, by the highest court, that the civil war began at least for some purposes and at some localities, as early as April, 1861.46a By the President's proclamations of April 15 and 19, 1861, an insurrection was declared to exist in certain States. Under, and it may be correct to say by virtue of, the act of Congress of July 13, 1861, the that such presentation is entirely inconsistent with usage, which requires that aliens must address this Government only through the diplomatic representatives of their own governments.

"This Department refuses to entertain applications or to receive claims from aliens, except through a responsible presentation by the regularly accredited representative of their government.

"I have also been under the impression that Congress refused to receive petitions or claims from aliens. Such I am advised was at one time the rule of the House of Representatives, and such is the rule at present in the Senate as I am informed. The propriety of the refusal to allow an alien to intrude his claims upon Congress cannot be questioned.

"I have the honor to be, sir, your obedient servant,

"Hon. WM. LAWRENCE, House of Representatives.”

"HAMILTON FISH.

But there are very many claims of French citizens growing out of the war of the rebellion, and it would be utterly impracticable for Congress to become a claims commission to pass on all these. Similar claims of subjects of Great Britain were submitted to a commission under the 12th article of the treaty of 8th May, 1871, and the report of its proceedings will be found in House Ex. Doc. 1, part 1, first session Fortythird Congress, with the papers relating to foreign relations.

For the acts relating to debts due by or to the United States see act of 3 March, 1797, chapter 20, volume 1, page 512; act of June 6, 1798, chapter 49, sections 1, 3, volume 1, pages 561, 562; act of 3 March, 1817, chapter 114, volume 3, page 399; *act of 19 February, 1833, chapter 33, volume 4, page 613; *act of 30 June, 1834, chapter 153, volume 4, page 726; *act of 18 January, 1837, chapter 5, volume 5, page 142; act of 14 October, 1837, chapter 5, volume 5, page 204; act of 7 July, 1838, chapter 177, volume 5, page 288; resolution of 31 May, 1838, number 4, volume 5, page 310; act of 3 March, 1839, chapter 93, section 1, volume 5, pages 537, 538; act of 27 February, 1841, chapter 13, volume 5, page 414; act of 23 August, 1842, chapter 185, volume 5, page 511; act of 3 March, 1843, chapter 103, volume 5, page 648; act of 15 June, 1844, chapter 73, section 2, volume 5, page 673; act of 29 July, 1846, chapter 66, volume 9, page 41; act of 6 August, 1846, chapter 90, section 19, volume 9, page 64; *act of 2 March, 1847, chapter 39, volume 9, page 154; act of 3 March, 1849, chapter 129,volume 9, page 414; act of 31 August, 1852, chapter 108, section 2, volume 10, pages 97,98; act of 26 February, 1853, chapter 81, sections 1, 7, volume 10, pages 170, 171; act of 1 March, 1862, chapter 35, volume 12, page 352; act of 17 March, 1862, chapter 45, section 1, volume 12, page 370; act of 17 July, 1862, chapter 205, volume 12, page 610; act of 3 March, 1863, chapter 76, section 10, volume 12, page 740; act of 3 March, 1863, chapter 78, section 5, volume 12, page 743; act of 25 June, 1864, chapter 150, volume 13, page 182; act of 4 July, 1864, chapter 240, sections 2, 3, volume 13, page 381; act of 28 July, 1866, chapter 297, section 8, volume 14, page 327; resolution of 18 June, 1866, number 50, volume 14, page 360; resolution of 28 July, 1866, number 99, volume 14, page 370; act of 21 February, 1867, chapter 57, volume 14, page 397; resolution of 2 March, 1867, number 46, volume 14, page 571; act of 20 April, 1871, chapter 21, section 27, volume 17, page 12.

46a The Prize Cases, (2 Black, p. 636.) The court held that war commenced with the President's proclamation of blockade, April 27, 1861. The dissenting judges held that it commenced with the act of Congress of July 13, 1861. (12 Stat., p. 257.) See proclamations of April 15, April 19, and April 27, 1861, (12 Stat., pp. 1258-1260;) Lawrence's Wheaton, second annotated ed., sup., 44; proclamation of July 1, 1862; act June 7, 1862. The treaty of Washington fixes the commencement April 13, 1861. (17 Stat., p. 867, sec. 12.) See the diplomatic correspondence with Great Britain, April and July, 1865, pp. 362, 365, 367, 388, 394, 397, 407, 421, 422, 423; proclamations May 10, 1865, (13 Stat., p. 757,) May 22, 1865, (13 Stat., p. 758.) See schedule of proclamations in appendix B to this report.

* Acts distinguished by a * have been heretofore repealed.