The whole subject of the necessity and value of giving this jurisdiction to some court has been fully considered by the learned and able Salary and expenses of R. S. Hale, agent and consul 20,000 00 2 commiss'ers +6, 000 56, 493 13 197, 179 81 6,083 23 1 commiss'er's exp's. Agt.& couns❜l †10,000 1 commiss'r. †10, 000 Secretary... $3,000 20, 117 87 Salary and expenses of James S. Legal services, witness fees, and Amount for which no vouchers have been rendered, and with which the parties stand charged.. Total amount expended Secretary of State, whose enlightened labors have added so much luster to our diplomatic history. His conclusions on this subject are submitted herewith.2 * Per annum. It Per diem. * In full for services and expenses. 2 They are as follows: $1,801 76 9, 193 74 22, 448 90 19, 938 69 June 30, 1870 $20, 981 03 28, 381 45 20, 212 20 $53, 383 09 43, 240 24 96, 623 33 96, 623 33 $3,000 †4,000 Commiss'ner +$4, 500 Secretary. †2, 500 2 translators ||1, 500 1 asa't mess. DEPARTMENT OF STATE, Washington, February 27, 1874. SIR: Referring to my previous letters respecting the "bill to establish a court of alien claims," I have now the honor to inclose a memorandum, showing the several amendments to the bill (H. R. 1739) which have been proposed or suggested by such gentlemen as I have had time to consult upon it; and the views of this Department in respect of their suggestions. I also take advantage of this opportunity to present for your consideration sundry reasons (1) why it is desirable that Congress should pass an act for disposing of "alien war-claims;" (2) why the provisions of the bill introduced by you, amended by such suggestions as are adopted by the Department of State, should be enacted; (3) why, should it be enacted, the results will be favorable to the United States; and (4) why we may hope that such results will be accepted by other interested powers. I.-Reasons why a law should be enacted for disposing of alien war-claims. During and after the late war many claims were presented by representatives of foreign powers, for injuries alleged to have been suffered by citizens or subjects of such powers, arising out of acts committed against their persons or property during the war. Especially were such claims presented on behalf of citizens or subjects of Great Britain, France, Germany, and Italy. No recognition has been made of any possible liability for the claims advanced by the representatives of France, Germany, or Italy. But by the treaty known as the treaty of Washington it was agreed that the British claims arising out of such acts committed between April 13, 1861, and April 9, 1865, should be submitted to arbitration. The result of this arbitration is thus described in the last annual message of the President: "It was awarded that the Government of the United States should pay to the government of Her Britannic Majesty, within twelve months from the date of the award, the sum of $1,929,819 in gold. The commission disallowed all other claims of British subjects against the United States. The amount of the claims presented by the British government, but disallowed or dismissed, is understood to be about $93,000,000.” These proceedings practically worked a preference of this class of British claims over all others It left unrecognized, and without means provided for adjudicating upon, first the claims of other governments, (as France, Germany, and Italy,) and, second, British claims later than April 9, 1865. It cannot be doubted that the United States rightfully exercised acts of war after the 9th of April, 1865. That was the date of Lee's surrender. A state of war continued after that time which rendered necessary many or all of the acts which are complained of, and those acts, when sifted, will probably prove to constitute as little foundation for claims against the United States as the acts committed within the date named in the treaty of Washington. The powers whose subjects have had their claims deferred to those of British sub It cannot be doubted that such a court would be a great agency for jects, as well as Great Britain herself, on behalf of British subjects whose claims arose after April 9, 1865, stand ready to ask us to decide upon the validity of their claims. What answer can the Department of State make to such a request? This bill proposes to furnish an answer. If passed, it will enable us to say, “It is true that British claimants between April, 1861, and April, 1865, had a commission to establish such claims as might be found valid. The United States had then no court in which such claims could be examined. Now, we offer to all such claimants a court of law, and invite them to submit their claims to judicial investigation. We thus avoid a number of simultaneous mixed commissions, with possible conflicting decisions, and we render substantial justice to all who shall prove substantial injuries." II.-Reasons for the provisions of the proposed act. In the intercourse of nations it is an admitted principle of comity that where the local courts afford a remedy, and where there is no reason to distr.ist the firmness and sense of equity of those courts, a claim will not be urged diplomatically until the local remedies shall be exhausted, unless good and satisfactory reasons can be shown for not pursuing the remedy to the highest court of appeal. The proposed bill aims to give such complete remedies to the foreign claimants, that substantially nothing will be left for diplomatic discussion. In order to secure such completeness, it has been thought essential to confer upon claimants the right of appeal, to the Supreme Court, from the court of alien claims, in case of adverse decisions. This has made it necessary to make the tenure of the judges "during good behavior." No other court is recognized by the Constitution as entitled to be "vested" with "the judicial power of the United States," in such a way as to confer upon the Supreme Court" appellate jurisdiction" from its decisions. In order, therefore, to secure the right of appeal, the bill proposes to create a permanent court. It has been suggested that jurisdiction should be conferred upon this court over claims of citizens of the United States as well as of aliens for torts committed by the United States. Should the House think best to so widen its jurisdiction, the Department of State would not feel disposed to question the wisdom of the act. It has also been suggested that jurisdiction over this class of cases might be conferred upon existing tribunals. If the jurisdiction should be conferred upon the United States district or circuit courts, it would greatly increase the expense to the United States, and would make it almost impossible for one person to supervise all the proceedings in defense. I need not say to so intelligent a lawyer as yourself how advantageous, how absolutely necessary, in fact, it will be to the United States to put their defense against these claims under one guidance. This advantage would be lost should claimants be allowed to sue in circuit or district courts. And, further, the crowded state of the calendars of those courts in the large towns, where probably most of the suits would be conducted, would prolong the proceedings beyond what would be desirable. It has also been suggested that the present Southern Claims Commission should be empowered to hear and determine upon this class of claims. But this commission is not a court from which appeals can be taken to the Supreme Court; and although greatly respected here, where its members are best known, it could not be expected to command abroad the weight and confidence which would induce foreign governments to accept its decisions as final. The Court of Claims has also been mentioned as a body justly entitled, by its high character for learning and for patient investigation, to be clothed with the power of deciding these claims. Although the Court of Claims is not so well known abroad as at home, and although foreign governments might, therefore, feel more disposed to question its decisions than would be just, yet this objection might, perhaps, be overlooked if the state of the calendar of that court promised an early settlement of these claims. But, unfortunately, such is not the case. I annex a statement of the condition of the calendar of that court, prepared by the examiner of claims of this Department, which shows that the court is already overburdened with business, and would not be able to perform the great additional labor of deciding these claims. There seems, therefore, to be no escape from the necessity of creating a court for the purpose and endowing it with the necessary powers. The proposed bill recognizes the fact that this court is to be the creature of a diplomatic necessity; that it is to take the place of diplomatic action; and that its results may be set up hereafter, diplomatically, as a bar against claims of foreign governments, advanced on behalf of their citizens or subjects. It therefore proposes to have the proceedings conducted with the knowledge of, and in some respects under, the supervision of the Secretary of State. In order to prevent purely speculative or fictitious claims from being advanced, it equires claimants to print, at their own expense, all documents and evidence put into he case by them; but, lest a bona-fide claimant should suffer from this necessity, it good in preserving a good understanding between nations and in securing the relations of peace. will, as amended, authorize such claimant to recover, with an award for his claim, the expenses he may have been put to for such printing. It guards against surprises on either side, by requiring claimants to furnish to the Government a full statement of the claim, with the names of all the witnesses relied upon to establish it, and by obliging the Government to set forth in its answer all the grounds of law and fact upon which it relies for its defense. It guards against perjury by provisions for the punishment of the perjurer, and for the disallowance of the claim sought to be maintained by such evidence. It provides for an appeal to the Supreme Court of the United States. And, in order that such appeal may not unreasonably prolong the term of the court below, it provides that such appeal shall be heard upon the original papers, including the arguments, and that final judgment shall be rendered in the Supreme Court without a remitter; and, in order that claimants may not be vexed by appeals that ought not to be taken, it requires the written assent of the Attorney-General to an appeal by the United States. It is believed that such a system would work out justice and give satisfaction to all concerned. III.—Reasons why a favorable result may be looked for. It may be assumed that the claims which it is proposed to adjust through the instrumentality of the proposed act are similar in all respects to those which were adjusted through the instrumentality of the British and American Mixed Claims Commission under the treaty of Washington. In view, also, of the intimate commercial and social relations between Great Britain and the United States which existed at the outbreak of the war, and of the magnitude of the British-American commerce as compared with the commerce of any other nation with the United States, it may be asumed that that commission passed upon a large majority of the claims of aliens growing out of the war. It may also be assumed that the rules of proof which it is proposed to adopt will deter persons from presenting purely speculative claims. Assuming these facts, let us examine the results of the American-British Mixed Commission. Four hundred and seventy-eight cases against the United States were pre sented and tried, and judgment entered within two years from the organization of the commission; of these, 259 included claims for property taken by the United States forces, 181 for property destroyed by the United States forces; 7 for property destroyed by the rebels, 100 for alleged unlawful arrests or imprisonments, 76 for unlawful captuie indemnation of vessels, 3 for unlawfully warning off vessels, and 34 for other matters. All the expenses of printing in these cases were borne by the two governments jointly-5 per cent. retained from the award being applied toward re-imbursing them. Under the proposed court, this expense will be much reduced, but no percentage is de ducted. The aggregate amount of the claims presented was about $96,000,000. The amount allowed was a little less than $2,000,000, the exact sum being, as already stated, $1,929,819. There is no reason to suppose that, in the cases which remain, there would be a larger proportion of valid claims. But whether the proportion would be greater or less, it is evident that the opportunities for a judicial examination into the facts and merits in each case would be greater in a court such as it is proposed to establish than in a mixed commission, composed of commissioners trained under different systems of law, and accustomed to different modes of investigating facts. IV. Reasons why the judgments of such a court would probably be accepted by other govern ments. It might be enough under this head to say that there is a probability, amounting almost to a certainty, that the judgments of the proposed court as revised by the Supreme Court will be in entire harmony with the recognized principles of international law, and will therefore not be questioned. I believe that such would be the case. The bill proposes to give the right of appeal to all who feel themselves aggrieved by the decision of the court below. No claimant who did not exercise that right could properly claim the assistance of his government in a diplomatic prosecution of his claim. And I am persuaded that such is the respect in which the Supreme Court is held throughout the civilized world, that no government would feel disposed to question its decision. It appears from the report of the Navy Department that the total number of vessels captured and sent to the courts for adjudication between the dates named in the treaty It is manifestly just that there should be some tribunal clothed with the power to hear the claims of aliens against our Government. The committee have concluded that the Court of Claims can properly be clothed with the jurisdiction of alien claims arising not only during the rebellion but at any time hereafter, and the foregoing bill proposes to give this jurisdiction. of Washington was eleven hundred and forty-nine; and that three hundred and fiftyfive vessels were burned, sunk, or otherwise injured. In the proceedings before the late British-American Mixed Commission, seventy-six memorials were filed, advancing claims against the United States for vessels and cargoes captured, detained, or warned away from blockaded ports. Awards against the United States were made in the case of eleven vessels. The injuries complained of in the cases of the Boyne and the Monmouth were received in consequence of being illegally warned off the coast. This was an injury for which our courts afforded no remedy; consequently the cases were never brought before our courts. The injuries in the case of the Tubal Cain and the Labuan were caused by an illegal detention in a port of the United States, for which, also, our laws afforded no remedy. deir The Madeira was a collision case, and was never before the Supreme Court. The York was burned on the coast of North Carolina, consequently no proceedings could be taken in rem against the vessel and cargo. The Circassian, the Hiawatha, the Science, the Sir William Peel, the Springbok, and the Volant were decided adversely to the United States, in whole or in part, after a hearing and decision in the Supreme Court. In the case of the Circassian there was a dissenting opinion by the late Mr. Justice Nelson. The mixed commission, by a majority vote, sustained the conclusions of the dissenting justice. In the case of the Hiawatha, there were dissenting opinions by Chief-Justice Taney and Justices Nelson, Catron, and Clifford. The mixed commission, by a majority vote, agreed in the results reached by the dissenting justices. The Science and the Peel were ordered by the Supreme Court to be restored, as not being subject to capture. The mixed commission, by a majority vote, decided that there was no probable cause to justify the seizure, and awarded damages in addition to restitution. In the cases of the Springbok and the Volant, the commission sustained the decision of the Supreme Court on all the main issues, but rendered in each a trifling award against the United States on collateral issues. Thus, out of 449 captures sent to the courts for adjudication, the adjudications have been shaken in but six cases-two of which decisions were rendered by a divided court, two of which were sustained by the mixed commission in principle, and reversed only on the question of fact as to the probable cause; and two of which were sustained in principle, and reversed only on unimportant collateral points. Such a record fully justifies the language used by the late Lord Palmerston, in the House of Commons, during the war: "We have no reason to mistrust the equity and independence of the tribunals of the United States, which have to try questions such as those now under discussion." It also authorizes the expression of a confident opinion that foreign powers, whose subjects or citizens may be claimants before the court which your bill proposes to establish, will acquiesce in the decisions which that court may make. I have the honor to be, sir, your obedient servant, HAMILTON FISH. Hon. WM. LAWRENCE, Chairman of Committee on War-Claims, House of Representatives. And see article in the (Boston) American Law Review, July, 1867, vol. 1, pp. 655– 657. At the first session of the Forty-third Congress a bill was introduced into the House by Mr. Lawrence, as follows: A BILL to establish a Court of Alien and War Claims. " Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, for the purpose of providing a tribunal to hear and determine the claims of citizens of the United States and aliens against the United States for compensation for alleged torts suffered through the acts of persons for whose doings it may be asserted that the United States should be held responsible, there shall be a The commissioners of claims have no jurisdiction over alien claims of any kind. The Court of Claims has no jurisdiction of torts. |