troversy, it is submitted that a State cannot with reason pronounce void a contract with an alien, and simultaneously demand that a question as to its interpretation or performance be adjusted according to provisions derived from the agreement itself.1 Nor is it believed that by voluntary agreement with a foreign State a national can deprive his own country of any right to protect him which it may otherwise possess.2

Possibly a contract providing that nothing relating to the agreement shall be made the subject of international reclamation until after the exhaustion of local judicial remedies, may be looked upon as declaratory of a sound principle of procedure applicable to the case of a purely contractual wrong where no denial of justice is apparent. Such an adjustment expresses no attempt to oust a foreign State of its right of interposition if the contracing sovereign fails to perform its acknowledged duty of jurisdiction. Such an agreement could not, however, prevent the State of the contracting citizen from including any claim arising from the contract, even though not based upon a denial of justice, within the scope of the operation of a claims convention. Notwithstanding some divergence of views, the weight of judicial opinion sanctioned by the decision in the case of the Orinoco Steamship Company before the Tribunal assembled at the Hague, under the convention between the United States and Venezuela, of February 13, 1909, appears with reason to regard an agreement to arbitrate as a renunciation of any clause in the contract restricting or forbidding diplomatic reclamation.3

1 Opinion of Little, American Commissioner, in case of Day and Garrison, executors, No. 38, American-Venezuelan Commission, Convention of Dec. 5, 1885, Moore, Arbitrations, IV, 3564; Moore, Dig., VI, 301; Mr. Blaine, Secy. of State, to Mr. Loring, Minister to Portugal, Nov. 30, 1889, Moore, Arbitrations, II, 1870, Moore, Dig., VI, 297; Case of North and South American Construction Company v. Chile, No. 7, American-Chilean Commission, Convention of Aug. 7, 1892, Moore, Arbitrations, III, 2318, Moore, Dig., VI, 302; Mr. Root, Secy. of State, to Mr. Russell, American Minister, Feb. 28, 1907, For. Rel. 1908, 774, 784-785, 796.

2 Mr. Bayard, Secy. of State, to Mr. Buck, Minister to Peru, No. 188, Feb. 15, 1888, MS. Inst. Peru, XVII, 323, Moore, Dig., VI, 294; Same to Mr. Hall, Minister to Central America, March 27, 1888, For. Rel. 1888, I, 134137, Moore, Dig., VI, 295; Mr. Adee, Acting Secy. of State, to Mr. Partridge, Minister to Venezuela, July 26, 1893, For. Rel. 1893, 734, Moore, Dig., VI, 299. See, also, dissenting opinion of Little, American Commissioner ia Case of Henry Woodruff and that of Flannagan, Bradley & Co., No. 20 and No. 25, American-Venezuelan Commission, Dec. 5, 1885, Moore, Arbitrations, 3566, Moore, Dig., VI, 303; Ralston, Umpire, in the Martini Case, ItalianVenezuelan Commission, 1903, Ralston's Report, 840-841, Moore, Dig., VI, 308; Senate Doc. No. 413, 60 Cong., 1 Sess., 116.

J. B. Scott, Hague Court Reports, 228, Am. J., V, 230, 233. Concerning the decision in its relation to the Calvo clause, see W. C. Dennis, "The Orinoco Steamship Company Case before The Hague Tribunal ", id., V, 35, 50–51.

SCOPE OF AMERICAN CLAIMS CONVENTIONS [§ 306

(4)

§ 306. The Scope of Claims Conventions to Which the United States Has Been a Party.

The earliest agreements of the United States for the adjustment by arbitration of claims of American citizens did not embrace those arising from contracts with foreign governments. Art. VII of the Jay Treaty with Great Britain of November 19, 1794, provided for cases arising from the "irregular or illegal captures or condemnations of vessels and other property." Art. XXI of the treaty with Spain of October, 27, 1795, provided for the arbitration likewise of differences arising from losses sustained by American citizens in consequence of the taking of their vessels and cargoes by Spanish authorities during the war

1

Also opinion of Ralston, Umpire, in the Martini Case, Italian-Venezuelan Commission, 1903, Ralston's Report, 840-841; opinion of Plumley, Umpire, in Selwyn's Case, British-Venezuelan Commission, 1903, id., 322; Coro and La Vela Railway and Improvement Company Case, American-Venezuelan Commission, 1903, Morris' Report, 69; Virgilio del Genovese Case, before same Commission, id., 397, Ralston's Report, 174; opinion of Barge, Umpire, in Case of the Rudloffs, before same Commission, Morris' Report, 431, Ralston's Report, 182.

Compare opinions of Barge, Umpire, in the following cases before the American-Venezuelan Commission, 1903; Henry Woodruff, Ralston's Report, 151, 158; Orinoco Steamship Company, id., 83, 90-91; Geo. Turnbull, id., 200, 239.

For an excellent discussion of the foregoing and other decisions, see Moore, Dig., VI, 301-309; also Ralston, Arbitral Law, 34-44.

Malloy's Treaties, I, 596. The instructions of Mr. Randolph, Secy. of State, to Mr. Jay, show that the United States sought merely a means of redress respecting claims arising from acts deemed to have been internationally illegal because committed by British authorities pursuant to certain Orders in Council of 1793, in disregard of what were believed to have been the rights of the United States as a neutral during the war between France and England. Communication of May 6, 1794, Am. State Pap., For. Rel. I, 472; see, also, Mr. Jay's representation to Lord Grenville, July 30, 1794, id., 481; and the reply thereto of the latter, Aug. 1, 1794, id. It may be observed that the Article agreed upon contained the interesting provision that adjustment by arbitration should embrace "all such cases, where adequate compensation cannot, for whatever reason, be now actually obtained, had, and received by the said merchants and others, in the ordinary course of justice." In his report to the Secretary of State of Nov. 19, 1794, accompanying the treaty, Mr. Jay declared that it was "very much to be regretted that a more summary method than the one indicated in the seventh Article could not have been devised and agreed upon for settling the capture cases." Id., I, 503. Concerning the arbitration pursuant to this Article, see Moore, Arbitrations, I, 299-349.

See, also, Art. VI of the Jay Treaty, with reference to the provision made for the adjustment of claims of British subjects arising from the "operation of various lawful impediments since the peace", interfering with the recovery and lessening of the value of debts contracted with American citizens. Malloy's Treaties, I. 594. Concerning the failure of the arbitration, and the final adjustment pursuant to the Convention of Jan. 8, 1802, see Moore, Arbitrations, I, 271-298.

between France and Spain. The claims convention with Spain of August 11, 1802, provided for the adjustment of claims arising from the "excesses committed during the late war by individuals, of either nation, contrary to the law of nations or the treaty existing between the two countries."2 By Art. IX of the treaty with Spain of February 22, 1819, known as the Florida Treaty, there was a mutual renunciation of claims, embracing those mentioned in the Convention of 1802, as well as others based upon alleged denials of justice, and including also claims in which interposition had been solicited by aggrieved citizens of either State, and a demand for redress duly preferred upon the other subsequent to the date of the convention of 1802.3 The United States undertook by Art. XI to make satisfaction to its own citizens for their claims so renounced to the amount of $5,000,000. The commission established for the purpose of passing upon the validity and amount of American claims, regarded those of contractual origin within the scope of its jurisdiction. Art. I of the claims convention with Mexico of April 11, 1839, provided for the arbitration of "all claims of citizens of the United States upon the Mexican Government", wherein the interposition of the United States had been solicited prior to the signature of the convention.5 The Mexican claims commission established under the Act of Congress of March 3, 1849, to pass upon claims of American

Malloy's Treaties, II, 1648. Concerning the Arbitration, see Moore, Arbitrations, II, 991-1005.

Mr. Pickering, Secy. of State, in instructions of Oct. 22, 1799, to the American plenipotentiaries to France, sought the adjustment by arbitration of pending claims embracing all those "for sums due to American citizens, by contracts with the French Government or its agents." Am. State Pap., For. Rel. II, 301, 303. By the Convention of April 30, 1803, For Payment of Sums Due by France to Citizens of the United States, arrangement was made for the payment of debts due by France before Sept. 30, 1800, to citizens of the United States. Malloy's Treaties, I, 513. Relative to this Convention, see J. C. B. Davis, "Notes", Treaty Vol. (1776–1887) 1306-1308.

2 Malloy's Treaties, II, 1650. Concerning the failure of this convention and its annulment by Art. X of the treaty between the United States and Spain, of Feb. 22, 1819, see J. C. B. Davis, "Notes", Treaty Vol. (1776–1887) 1384-1385.

3 Malloy's Treaties, II, 1654.

See treatment of the claim of R. W. Meade, following the interpretation placed upon the treaty by Mr. J. Q. Adams, Secy. of State, Moore, Arbitrations, V, 4502-4504.

The Mexican Claims Commission, under Act of Congress of March 3, 1849, relied upon the position respecting contractual claims taken by the Commission under the Florida treaty. Id., 1279.

5 Malloy's Treaties, I, 1101. The provision of Art. I was apparently broader than that of the preamble of the Convention which referred to the desire of the contracting parties to terminate discussions respecting claims "arising from injuries to the persons and property of citizens of the United States."

1

SCOPE OF AMERICAN CLAIMS CONVENTIONS [§ 306

citizens against Mexico (which, pursuant to the Treaty of Guadalupe-Hidalgo, the United States itself undertook to pay to the amount of three and a quarter millions of dollars), was to be guided by the principles of an unratified convention of November 20, 1843. Art. I of the latter embraced "all claims" of citizens of the United States. This commission, as well as that under the convention of 1839, assumed jurisdiction over contractual claims, awarding indemnities in cases where no denial of justice was apparent. The members of both commissions were evidently of opinion that in view of the jurisdiction conferred upon them, the right of a claimant to an award was not necessarily dependent upon proof that any internationally illegal act had been committed by the Mexican Government.2

Art. I of the claims convention with Great Britain of February 8, 1853, provided for the arbitration of "all claims on the part of corporations, companies or private individuals", who were citizens or subjects respectively of the contracting States, and which had been presented to either Government for its interposition with the other after the Treaty of Ghent. No case based upon a contract was submitted for adjudication. In one case of a quasi-contractual nature, compensation was awarded. Art. I of the claims convention with New Granada (now Colombia) of September 10, 1857,5 and likewise Art. I of that with Ecuador of November 25, 1862,6 embraced "all claims on the part of corporations, companies or individuals, citizens of the United States.” Claimants obtained favorable awards in contractual claims from both commissions. Art. I of the claims convention with Peru of

19 Stat. 393. For the text of the treaty of Guadalupe-Hidalgo of Feb. 2, 1848, see Malloy's Treaties, I, 1107. Concerning the work of the Commission, see Moore, Arbitrations, II, 1249-1286

2

Among the cases decided by the Commission under the Convention of April 11, 1839, see that of the Hermon, Moore, Arbitrations, IV. 3425; also that of Dr. Geo. Hunter, id., 3426. Among the cases decided by the Commission under the Act of Cong. of March 3, 1849, see that of Wm. S. Parrott, id, 3429; that of Cox and Elkins, id., 3430; case of Wm. S. Underhill, id., 3433

Malloy's Treaties, I, 665. Concerning the work of the Commission established pursuant to the treaty, see Moore, Arbitrations, I, 391-425.

4 Case of Hudson's Bay Co., No. 37, "for supplies furnished American volunteers raised in Oregon on the breaking out of hostilities with the Indians and expenditures incurred in the rescue of captives from the Indians prior to the organization of the Territorial Government." Moore, Arbitrations, I, 423 and IV, 3458.

5 Malloy's Treaties, I, 319. Concerning the work of the Commission established pursuant to this convention, and that of the Commission under the Convention with Colombia of Feb. 10, 1864, id., I, 321, to complete the unfinished work of the former, see Moore, Arbitrations, II, 1361-1420.

Malloy's Treaties, I, 432. Concerning the work of the Commission established pursuant to this convention, see Moore, Arbitrations, II, 1569-1577. 7 The American-New Granadian Commission allowed R. W. Gibbs $6952.60

January 12, 1863, referred to "all claims of citizens" (subject to certain limitations) of either State against the government of the other. According to Art. III the commissioners were to be guided by "principles of justice and equity," as well as those of international law and treaty stipulations. In one case arising from contract and exhibiting no sign of a denial of justice, an indemnity was allowed.2

Art. I of the claims convention with Costa Rica, of July 2, 1860, provided for the adjustment by arbitration of "all claims of citizens of the United States upon the Government of Costa Rica arising from injuries to their persons or damages to their property under any form whatsoever, through the action of the authorities" of that Republic. It is understood that the commission established pursuant to the convention allowed compensation in cases of contractual origin.1

Art. I of the claims conventions with Venezuela, of April 25, 1866,5 and with Peru of December 4, 1868,6 followed the broader language of the earlier conventions with New Granada and Ecuador; and both were similarly construed as embracing contractual claims.7

Art. I of the claims convention with Mexico, of July 4, 1868, provided for the arbitration of "claims on the part of corporations, companies, or private individuals, citizens" of either State “arising from injuries to their persons or property by authorities" on a Colombian bond or instrument. Report of the American Commissioner, Moore Arbitrations, II 1384, 1385. The American-Ecuadorean Commission awarded compensation to Abraham Johnson for balance due on shoes sold to the de facto government of General Franco in 1860. Report of Mr Hassaurck, American Commissioner, id., 1575.

Malloy's Treaties, II, 1408. Concerning the work of the Commission established pursuant to the Convention, see Moore, Arbitrations, II, 1615–1638. 2 Case of Thomas R. Eldredge, Moore, Arbitrations, IV, 3460.

3 Malloy's Treaties, I, 346. Concerning the work of the Commission under this Convention, see Moore, Arbitrations, II, 1551-1568.

4 As authority for this statement reliance is placed upon the Brief of Mr. J. Hubley Ashton, American Agent, in the Case of the State Bank of Hartford, before the Mexican-American Commission, Convention of July 4, 1868, and mentioned by E. M. Borchard, in "International Contractual Claims and Their Settlement", 1913, note No. 42.

5 Malloy's Treaties, II, 1856. The same language was employed in Art. II of the Convention of Dec. 5, 1885, which superseded that of April 25, 1866. Id., II, 1860. Concerning the work of the commissions under these conventions, see Moore, Arbitrations, II, 1659-1692.

6 Malloy's Treaties, II, 1411. Concerning the work of the Commission under this Convention, see Moore, Arbitrations, II, 1639-1657.

7 See the Case of Thomas J. Clark before the American-Peruvian Commission, Convention of Dec. 4, 1868, Moore, Arbitrations, II, 1651-1652. Also Case of Jacob Idler, before the American-Venezuelan Commission, Convention of Dec. 5, 1885, superseding that of April 25, 1866, Moore, Arbitrations, IV, 3491.