SIXTY-FIRST CONGRESS. The Sixty-first Congress saw the introduction of still a new mode of procedure. This time the omnibus claims bill originated in the Senate. By Senate Report No. 603, of Mr. Burnham, from the Committee on Claims, that committee, April 28, 1910, reported a bill for the payment of a number of classes of claims allowed by the Court of Claims, saying: The committee has allowed all valid French spoliation claims certified to Congress by the Court of Claims under the provisions of the act of January 20, 1885, since the omnibus claims bill of the Fifty-eighth Congress was reported, except assigned claims and the claims of incorporated insurance companies. By the terms of the act above referred to, no claims filed subsequent to January 20, 1887, can be entertained by the court. The committee is informed upon good authority that a very large proportion of such as are now pending in the court will be dismissed for want of proof. Only one valid claim has been certified since January 1, 1910. The amount of French spoliation claims included in this bill was $842,688.53. No action having been taken upon it at the session at which it was reported, President Taft in his annual message of December 6, 1910, thus pointedly called the attention of Congress to its delay in making provision for payment: I invite the attention of Congress to the great number of claims which, at the instance of Congress, have been considered by the Court of Claims and decided to be valid claims against the Government. The delay that occurs in the payment of the money due under the claims injures the reputation of the Government as an honest debtor, and I earnestly recommend that those claims which come to Congress with the judgment and approval of the Court of Claims should be promptly paid. Just a fortnight after the date of this message the Senate passed the bill (December 20, 1910). The House laid the Senate bill on the table, and sent its own omnibus claims bill to the Senate. This bill being reported by the House Committee on War Claims, contained appropriations only for the payment of that class of cases. It was referred to the Senate Committee on Claims, and there remained without being reported until that Congress expired by constitutional limitation, March 3, 1911. SIXTY-SECOND CONGRESS. The recommendation made to the last Congress having failed of effect, President Taft, at the opening of the first regular session of the present Congress, the Sixty-second, thus returned to the subject in his message of December 21, 1911. In my last message, I recommended to Congress that it authorize the payment of the findings or judgments of the Court of Claims in the matter of the French spoliation cases. There has been no appropriation to pay these judgments since 1905. The findings and award were obtained after a very bitter fight, the Government succeeding in about 75 per cent of the cases. The amount of the awards ought, as a matter of good faith on the part of the Government, to be paid. The failure of bills of this kind to become laws in the preceding Congress when reported in a manner different from that established by legislative precedent, apparently determined both Houses to re turn to the old plan. In accordance therewith, an omnibus claims bill was reported to the House by the Committee on War Claims, January 31, 1912,1 containing nothing but war claims, strictly socalled. It was passed by the House February 17, 1912. After three months' consideration by the Senate Committee on Claims, it was reported May 20, 1912.2 In that report the committee stated: Your committee having considered the proposed amendment, presented by the Senator from Massachusetts [Mr. Lodge], to incorporate into the bill what are known as French spoliation claims, decided that it is inexpedient to do so. There is an irreconcilable difference of opinion among the members of the committee in regard to the merit of the spoliation claims, and it is their opinion that they should be considered separately upon their merits. A summary of the findings made by the Court of Claims in each case of French spoliation included in the amendment proposed by Mr. Lodge is presented by your committee in a separate part of this report for the convenience of the Senate in passing upon the questions raised by that amendment (p. 17). The committee, while not laying down any general principles on a subject upon which its membership was divided, devotes a large portion of its report (pp. 237-435) to a review of the findings of the Court of Claims in each individual case. Without making any specific recommendations, these comments, by segregating what is styled the "actual property loss," imply that even if the claims are to be allowed at all, all items going beyond the bare value of vessel and cargo when they left their destination on the voyage upon which they were captured ought to be eliminated and the allowance confined to the initial value of the vessel and cargo at the home port in the United States. This view would exclude premiums of insurance paid and freight for the voyage which were allowed by the Court of Claims wherever applicable, as well as profits for the voyage and interest, neither of which have ever been allowed by the Court of Claims. A minority report signed by five members of the committee accompanied the majority report. This minority report, while making no specific reference to French spoliation claims, is based upon principles which apply with full force to those cases as well as to others specifically referred to by the minority. The following remarks from the minority report forcibly state the view of the dissenting members in favor of following the precedent set by the enactment of previous claims bills.3 Previous Congresses have paid exactly such claims as these, without question as to their justice. While it is true that one Congress can not bind another Congress, yet it is equally true that the United States Government is an entity-a political unit-and that the Government, acting by Congress, can take such a position that succeeding Congresses must rest under the highest moral duty of consummating some act commenced by a preceding Congress. Because a claim was referred to the Court of Claims by a previous Congress, under the necessarily implied understanding that it will be paid if proven, the present Congress is not in good morals absolved from the duty of carrying into effect that understanding. It should be borne in mind also that a very large proportion of the claims contained in the pending bill as passed by the House of Representatives were contained in bills which passed the Senate in the Sixtieth and Sixty-first Congresses, and therefore bear the approval incident to twice passing the Senate 1 H. Rept. No. 288, 62d Cong., 2d sess. 2 S. Rept. No. 770, 62d Cong., 2d sess. and of passing the House of Representatives in the Sixty-first Congress and again in the pending bill. It would assuredly seem that some effect and weight should be given, in reason, to this previous action by both Houses of Congress. One of the well-recognized rules of law applied in the courts is that of stare decisis, and while it can not be said that this precise doctrine has application to matters coming before Congress, it has been usual to accord weight to precedents furnished by previous congressional action. One of the cardinal principles of law applied in the courts is that of stare decisis. It is largely upon that principle that stability of the law is founded. While it can not be said that precisely that rule is applicable to matters coming before Congress, it is nevertheless a fact that parliamentary law in its general sense, and as followed in the Houses of Congress, is made up in part of express rules and also in large part of precedents and rulings. While it is unquestionably within the power of either House of Congress to disregard every precedent upon any point or subject of legislation, heretofore some weight has been accorded to precedents established by repeated enactments along a certain line. So far as precedents have been set by enactment of what are termed "omnibus claims bills," the proposed amendment of the House bill as it comes from the committee is opposed to the precedents so established. If considered as a bill for payment of all favorable findings of the Court of Claims, regardless of class or kind of claims, then no discrimination should be made either in favor of any one class of claims or against any class. This broad view should be taken that when a claim has been tried in the Court of Claims, the tribunal established by Congress for this very duty, and when that court has made a report of the proven facts which report shows that the claim is a just claim upon the United States, then that claim should in honor be paid. While Congress reserves to itself the right to pay or not to pay any claim, and might arbitrarily refuse to pay even a claim in favor of which a judgment has been rendered under the general jurisdiction of the Court of Claims, the findings of that court must either be taken as correct or they must be cast aside, and in the latter event the sooner the Court of Claims is abolished the better. It is not believed that the very body which established the Court of Claims should discredit that court or its judicial action. The principles here so forcibly stated are believed to be entirely just, and of course apply in full force to these French spoliation claims equally with claims arising out of the Civil War, which were those specifically referred to by the minority in making its remarks. ALLOWANCES BY INTERNATIONAL TRIBUNALS. The policy of reducing or scaling down allowances made by a duly authorized judicial tribunal would be a new one to our jurisprudence or legislative practice. Questions of details and amounts of allowances are supposed to be subjects appropriate for the consideration of a court after argument by counsel. The statement of President Taft, above quoted from his message of December 21, 1911, that "the findings and awards were obtained after a very bitter fight, the Government succeeding in about 75 per cent of the cases, is a very conservative one, fully supported by repeated annual reports of the Attorney General. If Congress is to review the details of the allowances made by the Court of Claims, then, in justice, the heavy disallowances made by that court should be reviewed also with the object of ascertaining whether they, too, are not erroneous. Were such a review once entered upon, it would result in demonstrating that the Court of Claims in acting upon these cases has granted a far less liberal measure of relief than has ever been given by any previous tribunal, domestic or international, acting upon claims of a similar character in our history. Some of these details of allowances by previous courts and commissions have been given under the heads of value, premium of insurance, freight, etc., in the July number of the American Journal of International Law, pages 629-634, ante, pages 19-25. Necessary limitations of space forbid extended quotation from the decisions of these tribunals. Some references, however, will show the reader the spirit in which such courts and commissions have treated claims of this character. 1 The Jay treaty of 1794 with Great Britain 1 provided in its seventh article (pp. 273, 274) for an examination of claims of American merchants for illegal captures and condemnations of their vessels and cargoes by the British under much the same circumstances as those connected with the claims for spoliations committed by the French, now under consideration. The British commissioner in that tribunal took the position "that to reimburse the claimants the original cost of their property and all the expenses they have actually incurred, together with interest on the whole amount would be a just and adequate compensation." This view, however, failed to meet the approval of the majority of that commission. William Pinkney, the American commissioner, said: The majority were of opinion that the claimants were entitled not only to the value of their merchandise but to the net profits which would have been made of it at the port of destination if the voyage had not been interrupted. His learned and brilliant opinion, giving the reasons for this conclusion of the majority of the board, will be found in the Life of William Pinkney, by Henry Wheaton, New York, 1826, pages 259 264. The character of the allowances actually made by this commission under the treaty of 1794 is thus stated in a report made long afterwards on a different, though analogous, class of cases: Reference was made to several cases before the commission under the treaty of 1794, in which it was said that the commissioners, as indemnity for captures held to have been unlawfully made, allowed not merely the value of cargoes, but net profits which would have been received if the cargoes had reached their port of destination and which, in some cases, amounted to nearly 100 per cent.2 The commission under the Florida treaty of 1819 with Spain, in its final report of its proceedings to the Secretary of State, said: In adjusting the amount of the claims allowed, the commission has adopted these principles. Regarding the fund provided by the treaty as designed to indemnify claimants for actual losses sustained, and not to realize profits which might or might not have been made, the board has generally taken up the voyage at its commencement, and allowed the value of the vessel and cargo at that time. To the value of the vessel, two-thirds of a fair freight for the passage in which the loss occurred has been added. A fair premium of insurance for the risk of such a passage has been also added to each of these insurable subjects. And the costs and expenses, incurred in defraying their rights, have been allowed to all claimants who have paid such, and have offered any evidence from which 1 Public Treaties of the United States, 1875, pp. 269-282. 2 Report of Her Majesty's Agent of the Proceedings and Awards of the Mixed Commission on British and American Claims, Established Under the Treaty of 1871, pp. 106, 107. 3 Moore's International Arbitrations, vol. 5, p. 4516. the sums so paid might be inferred. Such has been the general mode of estimating the quantum of loss to be indemnified in most of the cases where the loss has been total. Reference has been made 1 to the decisions of the commissions on the French indemnity of 1831, under the Van Ness convention of 1837-38, and on the distribution of the Danish indemnity, as well as of the Court of Commissioners of Alabama claims, and of Sir Edward Thornton, umpire under the treaty of 1868 between the United States and Mexico. In addition to the Alabama claims constituting grievances on our side against Great Britain, British citizens had their claims against us. These arose from the seizure of British vessels with their cargoes by our Navy during the Civil War on the charge either of attempting to break the blockade of the southern coast or of carrying contraband to the Confederates. These vessels were libeled in our admiralty courts. Some were condemned, others released, though generally without damages for detention or loss of freight. A mixed commission was provided for by the treaty of 1871 for the settlement of all miscellaneous claims of citizens of either country against the other. Before this mixed commission claims were preferred on behalf of the British owners of vessels and cargoes thus seized and condemned, or even where they were released, for the damages attending the detention. Several decisions even of the Supreme Court of the United States were reexamined, and in effect reversed by this commission. Notably was this done in the case of the Circassian, where the Supreme Court condemned the vessel with her cargo as lawful príze, on the charge of breach of blockade. The commission under the treaty of Washington held this judgment unjustifiable, and made awards amounting to $20,540 for freight, $133,296 to the underwriters on the cargo, and $71,428 to the owner of a mortgage on the vessel, which mortgage became incapable of being enforced by the capture of the vessel.3 In the case of the Sir William Peel, the Supreme Court held that the vessel was not guilty of either carrying contraband or breaking the blockade. Inasmuch, however, as the court held that there was probable cause for the capture, although the vessel and cargo were restored to their owners in full, it was without costs or expenses. The mixed commission allowed the owners of this vessel and cargo the enormous sum of $272,920 for these merely incidental damages, the items of claim being stated to be "detention of the vessel," "interest on this sum," ""interest on the insured value of the cargo," and "10 per cent on insured value of cargo for loss of profit." The same principle was applied to claims made by American citizens and pressed by our State Department against the British Government arising out of captures made at sea by vessels of the British Navy during the Boer War. The claimants were owners of portions of the cargoes on these vessels. The vessels themselves were British, and were charged with trading with the enemy in violation of the laws of Great Britain. 1 American Journal of International Law, July, 1912, pp. 629–634; ante, pp. 19–25. 22 Wall., 135. 3 Report of Her Majesty's Agent of Proceedings and Awards of Mixed Commission on British and American Claims, London, 1874, pp. 124-133. 45 Wall., 517. |