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There were two principal objects in preparing the following pages: first, to show that the whole business of examining claims by committees of Congress should be abandoned, and appropriate tribunals created for that purpose, having judicial powers, with all the machinery now exercised by the commissioners of claims for ascertaining the truth; and, second, to state some principles of law which seemed necessary to secure justice for honest claimants and to protect the Government against demands which find no sanction in sound precedent or public law.
Some of the reasons in favor of withdrawing from Congress the consideration of claims were presented in a speech in the House of Representatives June 3, 1874, (Congressional Record, vol. 2, part 5, (vol. 6,) p. 4511,) and still more appear in the following pages.
Since that time the writer has found a valuable discussion of the subject at the second session of the Thirtieth Congress, which is well worthy of attentive perusal. (Globe, vol. 20, pp. 38, 139, 141, 159, 163, 172, 178, 188, 198, 203, 302, 303, 307, 378, 492, 513.)
A report made at the same Congress on the same subject is also very instructive. (See House Report 411, vol. 2, first session 29th Congress; House Report 493, vol. 3, first session 30th Congress; House Report 937, vol. 4, second session 27th Congress; House Report 295, vol. 1, first session 28th Congress; House Report 412, vol. 2, first session 30th Congress; House Report 10, vol. 1, first session 39th Congress.)
Some of the earlier debates in Congress are equally deserving attention. (Annals of Congress, 14th Congress, second session, 1816–17, pp. 245, 299, 382, 126, 462, 1028, 1035, 1010, 1051, 1211.)
Some of the reforms which are believed to be just, salutary, and desirable are indicated in the following pages.
The vast increase of population and business in the United States is such that it is believed there should be a tribunal of claims, the members of which should be selected from the best talent of the country, and have a tenure of office like that of the judges of the courts, with power to make awards to be reported to Congress for payment. Their opinions on questions of law should be subject to revision by the Supreme Court. This tribunal should have all the powers now exercised by the commissioners of claims, and their conclusions of law and fact on every claim should be printed.
Their awards, when not taken to the Supreme Court for review, should be final.
Either this tribunal or a bureau of claims in the Department of Justice would seem to be necessary to secure the rights of honest claimants and protection to the Government.
The following pages were not designed as a full statement of the law of claims or the procedure applicable to them. The right to relief and a mode of procedure to attain it in the many classes of claims which have hitherto appealed to Congress, because in many, if not most of them, there was no other tribunal having jurisdiction, should be recog. nized, and provision made by law for securing justice to every claimant having a meritorious claim.
The future cannot fail to give rise to claims which will always require a tribunal such as is suggested.
The Court of Claims has a jurisdiction well defined, and its continued existence is a necessity.
Its jurisdiction may be properly enlarged.
That portion of the following pages which relates to the law of claims in the United States is a revision and enlargement of House Report No. 262, made by the Committee on War-Claims March 26, 1874, at the first session of the Forty-third Congress.
That report was reprinted entire in “ The Forum Law Review " for April, 1874, pp. 213-291, then published at Baltimore, (now New York,) and the substance of it in an elementary form was published in the (Philadelphia) American Law Register for May, June, and July, 1874, and February, 1875, (vols. 13 and 14, N. S.
The secretary of legation of the Japanese embassy procured copies of the report and forwarded to the international-law adviser of the Japanese government, who was formerly a citizen of the United States.
Many claims were presented to and urged upon that government, growing out of a rebellion there. It is believed the revised work now presented may be found useful as furnishing a reference to authorities on some questions of international and constitutional law.
There are some references in the following pages to the justice and necessity of fixing a limitation on thepresentation of claims, not only in the courts, but in the Departments of Government, and in all tribunals having jurisdiction of them. (See pp. 13, 18, 238, 242, 318, 324.)
This is more fully discussed in sundry reports made to the House of Representatives during the Forty-third Congress by the Committee on War-Claims, to which reference can be had ; and the reports of other committees in this and preceding Congresses doubtless present the sub ject in a more forcible light.
The experience of all time has shown the necessity for applying a limitation on the prosecution of actions in courts. The common law raises a presumption of the payment of claims after a given time. (House Rep. Com. War-Claims No. 784, 1 sess. 43 Cong., p. 17.)
There is greater necessity for applying a limitation in favor of the Government in many, if not most cases, than between individual citizens.
The officers of Government who may be cognizant of facts necessary to protect it from unjust claims are too frequently changed, and thus go out of position where duty or interest so strongly requires them to watch its interests, or where opportunity may exist for doing so. It is even possible for some, by employment or otherwise, to become adversely interested.
Even officers do not always exercise the same vigilance for the public interest that private citizens do for theirs. These and other considerations no less weighty render this subject worthy of consideration. (See Index, “ Fraudulent Claims.")
In the examination of war-claims, there is one important principle of law which is liable to be overlooked—that which relates to the measure of damages. War generally furnishes the occasion for demanding exorbitant prices for property sold to, or used by, the Government. The presence of an army often makes such demands for some kinds of property, that holders of it take advantage of the situation to extort enormous prices. When the Government takes property in time of war, under circumstances which require "just compensation" to be made, the meas ure of damages is not the fictitious prices so often asked, but only “ a fair price, without regard to the enhanced value resulting from the presence of” an army. (See post 236-House Rep. No. 497,1 sess. 43d Cong., Com. War-Claims; House Rep. No. 748, 1 sess. 43d Cong. ; Halleck Int. Law 460, sec. 17.) During the rebellion, on the theater of war, in localities alternately occupied by the contending armies, property was so insecure that it could be scarcely said to have any real value.
A practice has grown up, to some extent, which is often injurious to claimants and prejudicial to the Government. Officers in the Departments, and even the courts, when rejecting claims upon the ground that no law authorizes payment, sometimes take occasion to say that a remedy may be sought in Congress. (House Rep. No. 673, part 2, 1 sess. 43d Cong., Com. War-Claims; 8 Wallace, 275.)
It is no part of the duty of these officers, or courts, to advise claimants as to the means by which they may obtain relief in opposition to the established law, nor is it within the sphere of their appropriate duties to make recommendations to Congress. The Constitution devolves on the President the duty of recommending to Congress such measures as justice and the public interest require.
Congress can with no more propriety disregard law, settled on correct principle, than courts, or officers in the Departments. Unauthor