of congress.24 It is expressly stated, however, that the jurisdiction does not extend to claims "growing out of or dependent upon treaty stipulations entered into with foreign nations or with Indian tribes.'25 As the court's jurisdiction is limited to the express terms of statute it does not extend to claims based on general international law. The court therefore could not aid in enforcing the national duty of reparation unless congress had first acted, except in so far as the obligation to pay contract debts may be considered a duty of international law.

(b) Diplomatic representation is the most frequent method of presenting demands for reparation. These must be presented to the Department of State and must come from a foreign government through its diplomatic representative in the United States.26 The Department of State will not listen to a claim presented by a foreign private person and congress will not consider any alien claims not coming through the Department of State.27 The action of the Department of State upon claims is entirely discretionary, and its recommendation to congress although generally followed has no controlling effect. Congress having acted, it would seem that the payment of claims becomes a purely administrative act and the foreign claimant can have recourse to the court of claims on the authority of this statute, or to an action of mandamus to compel payment by the Secretary of the Treasury or the Secretary of State.

(c) The conclusion of arbitration treaties and the determination to submit any particular claim to arbitration are political questions and beyond the power of municipal law to control. The United States has concluded a large number of special as well as general arbitration treaties.28 The former usually specify the procedure to be observed and the subjects to be submitted to the jurisdiction of the arbitral court.29 The latter provides that all

24 Act, Feb. 24, 1855, 10 Stat. 612; Rev. Stat. 1059. Judicial Code, Act, Mch. 3, 1911, 36 Stat. 1087, sec. 145, District courts now exercise a concurrent jurisdiction in these matters, Ibid., sec, 24.

25 Act, Mch. 3, 1863, 12 Stat. 765, sec. 9, Judicial Code, 1911, 36 Stat. 1087, sec. 153.

26U. S. vs. Diekelman, 92 U. S. 520, Moore's Digest, 6;607-609.

27Magoon's Reports 338; see also 43 Cong., ist Sess., Report No. 496, committee on war claims, May 2, 1874; Moore's Digest, 6;608.

28 Supra, p. 26, note 18.

29It has been held that decisions of an arbitral court beyond its competence as defined by treaty are void. See Comegys vs. Vasse, 1 Pet. 193; Trevall vs. Bache, 14 Pet. 95; Judson vs. Corcoran, 17 How. 612; Moore's Digest, 7:30-33.

questions of a class or all questions except those of a specified class shall be submitted to arbitration, yet although treaties are, by the constitution, the law of the land, cases do not come before arbitral tribunals automatically. The submission of any case is a political question, upon which the executive power of the government has discretion.

A claim having been submitted to arbitration and an award given, the matter is subject to enforcement by municipal law. It has been held that an arbitral decision is final and as binding on the courts as an act of congress.30 It would therefore seem that the payment of the award is purely administrative in character, and can be compelled by mandamus. This however is not true in cases in which the award has been for the United States, and its citizens claim payment. If it develops that fraud was practiced, the United States government can reopen the whole matter and refuse payment to its citizens.31 The arbitral decision is res judicata as between the governments, but not as between the government and its own subjects.

Although the submission of questions to arbitration even under general treaties is a political question and beyond the control of municipal law, the establishment of a mode of procedure by means of such treaties and of a permanent panel of judges as is provided by the Hague conventions undoubtedly affords an important sanction to the equitable fulfillment of duties of reparation. The establishment of a permanent court of arbitration with recognized jurisdiction, as was attempted and notably favored by the United States' delegation at the second Hague conference, would add an even more effective sanction of similar character.

REPARATION BY INFERIOR GOVERNMENTAL DIVISIONS, PUBLIC OFFI

CERS, AND PRIVATE PERSONS As has been stated, the national government of the United States is primarily responsible for all breaches of international law by itself or its citizens and reparation for such torts may always be expected from it. This does not, however, prevent the

. injured party seeking reparation from inferior governmental organs, officers, or individuals. We may therefore consider the mu

'

nicipal measures enforcing the duty of such persons to make reparation.

(1) The constitution permits the extension of the jurisdiction of federal courts to controversies “between a state or the citi. zens thereof, and foreign states, citizens or subjects,''32 but not

1932 to suits in law or equity commenced or prosecuted against one of the United States * * by citizens or subjects of any foreign state.”'33 The exemption does not extend to suits prosecuted by foreign states. It therefore seems that so far as the constitution is concerned, a foreign state could bring action for reparation against one of the commonwealths of the union in the federal courts although its subjects acting individually could not. The statutes, however, have not provided for such a jurisdiction; consequently there have been no such actions. Foreign states have always asserted that the government of the United States is the only authority recognized by them as responsible, and have refused to have direct recourse to state governments, even when the state has offered to make indemnity.34

Some states have established courts of claims in which they may be sued under limitations, 35 and a number of them have provided by law for the responsibility of cities and counties for property losses and lynchings. These methods of recovery are open

38

32 Constitution, art. 3, sec. 2, cl. 1.
33 Constitution, Amendment 11.

34 See case of French Privateers, 1811, in which the State of Georgia offered to make indemnity for injury to French seamen in Savannah. Moore's Digest, 6;809.

35Illinois Act, Mch. 23, 1819, Laws 1819, p. 184; Act, Jan. 3, 1829, Rev. Laws, 1832, p. 593, repealed Rev. Stat. 1845, p. 464, permitting the auditor of Public Accounts to be sued for the state. 111. Act, May 29, 1877, laws, 1877, p. 64, creating a commission of claims “to hear and determine all unadjudicated claims of all persons, against the state of Illinois" and submit them to the auditor of public accounts who is to lay them before the general assembly. Ill. Act, May 16, 1903, laws 1903, p. 140, creating a court of claims with a similar authority. See N. Y. Laws, 1870, c. 321; 1876, c.444; 1883, c.205; 1897, c.36; Mass. Rev. Laws, c.201. See Freund, Cases on Administrative Law, St. Paul, 1911, p. 363-367.

36 As examples, see Ill. Rev. Stat. 1913, c.38, sec. 256a-256g, p. 854, making a city or county liable for three-fourths damages for property losses caused by a mob of over twelve persons, with the proviso that such liability does not prevent recovery from individual perpetrators; c.28, sec. 256w, p. 857, creating a liability of $5000 upon counties and cities for lynchings, recoverable by the survivors of the person lynched.

to aliens or foreign sovereigns under the usual provisions opening courts to such persons.

(2) Recourse against private persons or officers of government may be had by either foreign individuals or sovereigns.37 Such suits may also be commenced in the name of a foreign state.38 Foreign states or persons bringing such suits have the advantage of the usual principles of law applicable to suits brought for the recovery of claims or damages by citizens.39 The foreigner in such a case has the additional advantage of an option in bringing his case in either the state or federal courts. By the constitution the jurisdiction of the federal courts may be extended to controversies “between a state or the citizens thereof, and foreign states, citizens or subjects," and statutes have provided for the exercise of this jurisdiction as to such suits against citizens. 40

The usual principles of liability of officers apply in suits brought by aliens as well as by citizens. In principle AngloAmerican law considers officers liable for wrongful acts, in which case they would be liable for torts violating international rights of foreign states or persons.". The tendency, however, is to relieve officers from such liability either by statute or judicial decision when they act in good faith, the state sometimes assuming the liability in such cases. The responsibility of private persons would be governed by the law of torts and contracts of the state where the action was brought, the same remedies generally being open to the alien as to a citizen.42

42See reference to this mode of indemnification in letter of Secretary of State Bayard, For, Rel. 1886, p. 158, in reference to Chinese Outrages at Rock Springs, Wyo., 1885, in which reference is also made to the right of aliens to remove cases to federal courts. Moore's Digest, 6;831-832.