try as may be involved. With respect to the case of Colonel MacMurdo, who is now represented by his widow, Katherine A. MacMurdo, his sole executrix and legatee, it is to be observed that by the terms of the concession the company which he was required to form was to include himself, and that his personal liability was not merged in that of the company. But in any case, the Portuguese company, being without remedy, and having now practically ceased to exist, the only recourse of those whose property has been confiscated is the intervention of the respective governments."

A protocol was signed at Berne July 13, 1891, between the United States, Great Britain and Portugal, by which they agreed to submit to a tribunal of arbitration the question of "the amount of the compensation due by the Portuguese government to the claimants of the other two countries, in consequence of the rescission of the concession of the Lourenco Marques railroad and the taking possession of that railroad by the Portuguese government." This tribunal made an award of damages, which the Portuguese government paid.31

§ 568. Policy of the United States. It is the policy of the United States to refuse to present a claim to a foreign government, founded on transactions in which the neutrality laws of the United States were violated.32 The Department of State will not entertain a claim against the United States, which the claimant has elected to present to Congress, as long as the claim is before Congress.33 A widow, a citizen of the United States, succeeded as an heir to the claim of her husband, an alien, against a foreign government, and when she sought, in her character as an American citizen, the good offices of the government. the Department of State granted her request. In doing so, it said that "while, in the opinion of the Department, a citizen of the United States is not entitled to invoke the assistance of this government in respect of a claim against another government acquired from a foreigner by marriage and assignment (by partnership arrange

31 2 Moore's International Arbitration, 1865-1889.

Mr. Bayard, Secretary of State, to Messrs. Morris and Fillette, July 28, 1888, 169 MS. Dom. Let. 263.

Mr. Fish, Secretary of State, to Mr. Schlözer, German Minister, Sept. 14, 1874, MS. Notes to German Leg. IX, 44.

ment or otherwise), yet it is believed that where such claim comes to the wife by succession upon the death of her husband, as in this case, the offices of this government should be extended to her.

734

§ 569. Naturalization has no retroactive effect.-Naturalization cannot be allowed to have a retroactive effect, so as to induce the government to intercede in a claimant's behalf.35 The government does not undertake, by adopting an alien as a citizen, the patronage of a claim which he may have against another government. "To admit that he can charge it with this burden," said Mr. Fish, Secretary of State, "would allow him to call upon a dozen governments in succession, to each of which he might transfer his allegiance, to urge his claim. Under such a rule the government supposed to be indebted could never know when the discussion of a claim would cease. All governments are, therefore, interested in resisting such pretensions." 36 On another occasion Mr. Fish stated that "it would be a monstrous doctrine, which this government would not tolerate for a moment, that a citizen of the United States, who might deem himself injured by the authorities of the United States or of any state, could, by transferring his allegiance to another power, confer upon these powers the right to inquire into the legality of the proceedings by which he may have been injured while a citi

§ 570. Assignability of right.-The United States will not "recognize an assignment of a claim against a foreign country made by a citizen or subject of that country to a citizen of this for the purpose of invoking diplomatic aid in the recovery thereof. Still less will it undertake to aid in the recovery of claims against subjects of foreign countries which originally accrued in favor of their fellow-subjects and have been assigned by the lat

4 Mr. Hill, Assistant Secretary of State, to Messrs. Coudert Brothers, June 9, 1900, 245 MS. Dom. Let. 484.

Mr. Marcy, Secretary of State,

to Mr. Ujhazi, Aug. 26, 1856, 45 MS. Dom. Let. 468.

36 89 MS. Dom. Let. 348, May 16, 1871.

37 To Mr. Bachiller, April 8, 1874, MS. Dom. Let. 43.

ter to American citizens.'' 38 Mr. Evarts, while Secretary of State, forcibly expressed the position of the government by declaring: "An assignment of a claim by a foreigner, or another government to a citizen of the United States, even if such claim be founded in' tort, is not conceived to impose on this government any obligation to interfere in behalf of such citizen, in respect of the government against which the complaint is made. This rule, however, is especially applicable in matters of contract between a foreigner and another government, or where a citizen of the United States becomes the assignee of the contract." 39

§ 571. Assignment of award.—Where an award has been made by the Commissioners of Alabama Claims under the treaty of 1871 between the United States and Great Britain, it constitutes a part of the estate of the person in whose favor it is made, and will pass to his assignee in bankruptcy. Such an assignee is authorized to take vested rights in rem and in re possibilities coupled with an interest in claims arising out of property.40 Mr. Justice Lamar, in speaking of these claims, said: "Was the claim in this case 'property' in any sense of the term? We think it was. Who can doubt but that the right to prosecute this claim before the Court of Commissioners of Alabama Claims would have survived to their legal representatives had the original claimants been dead at the passage of the act of 1882. If so, the money recovered would have been distributable as assets of the estate. While, as already stated, there were no means of compelling Congress to distribute the fund received in virtue of the Geneva award, and while the claimant was remediless with respect to any proceedings by which he might be able to retrench his losses, nevertheless there was at all times a moral obligation on the part of the government to do justice to those who had suffered in property. As we have shown from the history of the proceedings leading up to the organization of the tribunal at Geneva, these war premiums of insurance were recognized by the government of the United States as valid claims, for which satisfaction should be guaranteed. There was thus at all times a possibility

38 Mr. Gresham, Secretary of State, to Mr. McDonald, Minister to Persia, Nov. 11, 1893; For. Rel. 1894, 485.

39 To Mr. Hodgskin, Oct. 25, 1877, 120 MS. Dom. Let. 238.

40 Williams v. Heard, 140 U. S. 529, 11 Sup. Ct. Rep. 885, 35 L. ed. 550.

that the government would see that they were paid. There was a possibility of their being at some time valuable. They were rights growing out of property-rights, it is true, that were not enforceable until after the passage of the act of Congress, for the distribution of the fund. But the act of Congress did not create the rights. They had existed at all times since the losses occurred. They were created by reason of losses having been suffered. All that the act of Congress did was to provide a remedy for the enforcement of that right.” 41

§ 572. Claim of bankrupt.-A claim of a bankrupt against a foreign government will be transferred to his assignee in bankruptcy, but if the claim is vaguely described in the schedule of assets, and denominated worthless, it will not, on a general sale of his accounts, notes and judgments, pass to a purchaser, who acts for the benefit of the bankrupt with money supplied by the latter, where merely a nominal sum was paid, and the claim had a large value.42

44

43

§ 573. Resort to local remedies. It is a rule universally admitted that the regular course of justice will not be interfered. with until the foreigner claiming to have been injured shall have proceeded to the court of last resort having jurisdiction; and unless the injured party thus prosecutes his case, the government of the United States is not obligated to make compensation. In a case where one state of the Union sought to recover from another state on bonds and coupons, in a suit brought by the state as assignee, Mr. Chief Justice Waite quoted with approval the language of Sir Robert Phillmore: "As a general rule, the proposition of Martens seems to be correct, that the foreigner can only claim to be put on the same footing as the native creditor of the state. The chief justice himself said: "There is no principle of international law which makes it the duty of one nation to assume the collection of the claims against

745

another nation, if the citizens themselves have ample means of redress without the intervention of their government. 46 Where

a tort had been committed on an American citizen by a mob in Cuba, Mr. McLane stated that while a government was obligated to protect its citizens and to see that where justice is denied to them by a foreign nation, that their injuries are redressed, “yet this obligation always presupposes a resort, in the first instance. to the ordinary means of defense or reparation which are af forded by the laws of the country in which their rights are infringed, to which laws they have voluntarily subjected themselves by entering within the sphere of their operation, and by which they must consent to abide. It would be an unreasonable and oppressive burden upon the intercourse between nations, that they should be compelled to investigate and determine, in the first instance, every personal offense committed by the citizens of the one against the other.'' 47

$ 574. Courts of South American Republics.-Complaints have frequently been made that the courts of the South American republics were inefficient, and that justice could not be secured in them at all or only after great delay. But Mr. Seward said: "We must, however, continue to repose confidence in their independence and integrity, or we must take the broad ground that those states are like those of oriental semi-civilized countries outside the pale within which the law of nations, as generally accepted by Christendom, is understood to govern. The people who go to these regions and encounter great risks in the hope of great rewards must be regarded as taking all the circumstances into consideration, and cannot, with reason, ask their government to complain that they stand on a common footing with native subjects in respect to the alleged wants of an able. prompt, and conscientious judiciary. We cannot undertake to supervise the arrangements of the whole world for litigation, because American citizens voluntarily expose themselves to be concerned in their deficiencies."' 48

46 New Hampshire v. Louisiana, 108 U. S. 76, 2 Sup. Ct. Rep. 176, 27 L. ed. 662.

47 To Mr. B. J. Shain, May 28, 1834, 26 MS. Dom. Let. 263.

4 To Mr. Burton, Minister to Colombia, April 27, 1866; No. 137, Dip. Cor. 1866, III, 522, 523.