XV. DAMAGES. REMOTE, NOT ALLOWABLE. § 247. By the Geneva tribunal the distinction between immediate and remote (or consequential) damages was maintained; the latter being held not to be properly chargeable. Infra, § 402a. See supra, §§ 150g, 235a. A party whose house was destroyed in Florida, so as to give him a claim for its loss, cannot receive, in addition, indemnity for extraordinary expenses incurred by him in taking up his residence in another place. 6 Op., 530, Cushing, 1854. "The duty of making compensation to individuals whose private property is sacrificed to the general welfare is inculcated by foreign jurists, as correlative to the sovereign right of alienating those things which are not included in the eminent domain, but this duty must have its limits. No Government can be supposed to be able, consistently with the welfare of the whole community, to assume the burden of losses produced by conquest, or the violent dismemberment of the State. Where, then, the cession of territory is the result of coercion and conquest, forming a case of imperious necessity beyond the power of the state to control, it does not impose any obligation upon the Government to indemnify those who may suffer a loss of property by the cession." Wheat., Int. Law, pt. iv, ch. iv, § 2. As to necessity, see supra, §§ 50, 223ff. General Halleck, after citing the above (1 Baker's Halleck, 256), says: "The history of the State of New York furnishes a strong illustration of this rule of public law. The people of the territory now composing the State of Vermont, separated from New York and erected that territory into a separate and independent State. Individual citizens whose property would be sacrificed by the event, claimed compensation of New York. The claim was rejected on the ground that the independence of Vermont was an act of force beyond the power of New York to control, and equivalent to a conquest of that territory." XVI. HOME GOVERNMENT'S LIABILITY FOR ABANDONING CLAIM. § 248. A Government which neglects properly to present the claim of one of its citizens to a foreign Government, in consequence of which such claim is lost, is not necessarily bound to make good the claim. "The argument of the abstract right is strong, but as the justice obtainable from foreign nations is at all times, and under every state of things, very imperfect, and as the only alternative in cases of denial of justice is the abandonment of the claim or war, a nation by abandoning the claim after exhausting every specific expedient for obtaining justice, neither partakes of the injustice done, nor makes itself responsible to the suf ferer; for war, even if it eventually obtains justice for that sufferer, secures it by the sufferings of thousands of others equally unmerited and which must ultimately remain unindemnified. And mere inability to obtain justice cannot incur the obligation it is unable to enforce.” 5 J. Q. Adams's Memoirs, 383. As to Department's control of case, see supra, § 220. The United States are not bound to make compensation to parties who have neglected to prosecute their cases in the courts having jurisdiction of their complaints. 5 Op. (Appendix), 692. Lincoln, 1803. MEADE'S CASE. The claim of Richard W. Meade, which was presented to the Government of the United States in 1821, and which was before Congress for a series of successive years, was originally against the Government of Spain, and was based on losses incurred by him in business dealings with the Government of Spain, prior to the signature of the treaty of February 22, 1819. By that treaty it was provided as a part equivalent for the cession of Florida, that the United States should renounce all claims of citizens of the United States upon the Spanish Government, "statements of which, soliciting the interposition of the Government of the United States, had been presented to the Department of State, or to the minister of the United States in Spain, since the date of the convention of 1802, and until the signature of the treaty." The United States assumed these debts, and agreed by the treaty to appropriate $5,000,000 to their payment. The treaty provided for a board of commissioners to "ascertain the full amount and validity of the claims thus assumed by the United States." The board so constituted was to convene at Washington, and within three years "to decide upon the amount and validity of all the claims" which were thus assumed. Mr. Meade's claims having been presented in due time to the Department of State, and also to the United States minister at Madrid, fell within the category of claims which could be presented to the commission. These claims, before the treaty was ratified, but after the signature by the negotiators of the contracting parties, were examined and audited by the Spanish Government, and an order made by that Government for their payment out of the royal treasury. Mr. Meade appeared before the commissioners who met at Washington, and maintained not only that his claims were among those protected by the treaty, but that he was "entitled to a substantive and full satisfaction, whatever may be the pro rata allowance to the general mass of the claimants." The commissioners had at first doubts as to whether they had jurisdiction of the case. They applied to the Secretary of State for advice; and on March 9, 1822, were informed by the Secretary, under the President's direction, that claims for contracts were not, in the contemplation of the Government intended to have been shut out from the purview of the treaty. Mr. Meade's claims falling in part under this head, they were all admitted for consideration by the commission, with the qualification that the certificate of assessment given by the Spanish Government, as above stated, was not admissible to prove them. Mr. Meade then applied to the Spanish Government for the original vouchers. This was refused on the ground that the rejection of the Spanish Government's certificate by the commission was not only a violation of the rule that Government certificates of records or of the results of records are internation ally admissible, but that such a rejection was an "insult" to Spain. The commission, however, in April, 1823, reaffirmed their rejection of the Spanish certificate, but advised a renewal of the call on Spain for the original documents. Negotiations with Spain for the surrender of the papers were again opened, and the Spanish Government consented at last to furnish them. But this was too late to enable the papers to be presented to the commission, which, on May 29, 1824, ten days before the expiration of its term, rejected Mr. Meade's claims for want of evidence. Mr. Meade forthwith applied to Congress for relief, asking that a special court be constituted for the trial of his claim. See Senate Doc. 409, 18th Cong. 2d sess., 5 Am. St. Pap. (For. Rel.), 752; House The points of international law on which Mr. Meade relied are stated at large in an opinion by Mr. Horace Binney, of December 28, 1821. From this opinion the following passage is taken: "It has been already stated that the case of Mr. Meade is not one which, by involving a national wrong, made the United States a party and gave her authority to make it the subject of negotiation and compromise. This may be the law in regard to public or national wrongs, among which are to be placed the claims enumerated in the first four clauses of the 9th article, but private property and a claim to redress for a private wrong are not subjects of national negotiation and compromise. If a nation surrenders or compromises these, she must do it either by virtue of her own sovereign power or by authority derived from the individual proprietor, and if no authority to compromise has been given by Mr. Meade, as I have endeavored to show, then the surrender is to be supported only by the sovereign power before spoken of. "The case of sovereign power lawfully applied to the transfer of private property or to the extinguishment of such a private claim as Mr. Meade's is without a doubt a case of national obligation to pay an equivalent to the private proprietor or creditor. Whether we refer to the doctrine of our own Constitution or to the principles of public law, the result is the same. "Private property shall not be taken for public use without just compensation.' This is the language of the fifth article of the amendments to the Constitution of the United States. The necessity of this article may be questioned, for it says no more than is implied as a fundamental restraint upon the public use of private property in the constitution of every civilized people, but it serves, at least, to give the sanction of an emphatic public assent to what otherwise might have been exposed to discussion; and it is a particular pledge of the national faith for the indemnity of every American citizen who may be in the predicament referred to. "The language of the most approved writers upon public law, in their remarks upon the exercise of the eminent domain, is to the same effect. "Grotius is clear to this point: 'But we must also observe this, that a king may, two ways, deprive his subjects of their rights, either by way of punishment or by virtue of his eminent domain. But if he do it the last way it must be for some public advantage, and then the subject ought to receive, if possible, a just compensation for the loss he suffers out of the common stock.' (Grot. War and Peace, 333, b. 2, ch. 14, § 7.) "The same writer elsewhere remarks: This, also, is often disputed, what right kings have to dispose of the goods of private men to procure a peace who have no other power over the goods of their subjects than as they are kings. I have already said that the state has an eminent right of property over the goods of the subjects, so that the state, or those that represent it, may make use of them, and even destroy and alienate them, not only upon an extreme necessity which allows to private persons a sort of right over men's goods, but for the public benefit, which ought to be preferred to any man's private interest, according to the intention, reasonably presumed, of those who first entered into civil society. To which we must add that the state is obliged to repair the damages sustained by any subject on that account out of the public stock; so that he himself, who hath sustained the loss, contribute if it be necessary, according to his quota, to the discharge of that public debt.' (Ibid., 697, b. 3, ch. 20, § 7.) 6 "The language of Puffendorf is as follows: What power the com monwealth hath to excuse the goods (condonare bona) of the private subject upon a pacification must be discovered from the nature of the transcendental propriety upon the force of which the goods and fortunes of private men, whatever title purchased or possessed by, may be given up whenever the necessities of the state and public interest require it. But with this consideration, that the state is obliged to make good such losses to the subject out of the public revenues, either immediately, or at least as soon as it may be able. But whether a particular subject's goods ought to be excused or taken from him must, in a monarchy, be determined by the prince, and the whole body of the subjects upon his command is obliged to make satisfaction to the person that has sustained losses upon the public account beyond his just proportion.' (Puff., b. 8, ch. 8, § 3 (4th ed.), Dr. Kennett's translation.) "He says, in another part of the same book: 'But, however, without dispute they that have lost or sacrificed their fortunes to the publie safety in such extremities ought to have a restitution or satisfaction made to them, as far as possible, by the whole community.' (Book 8, ch. 5, § 7: On the transcendental propriety, its origin and necessity.) "Vattel says: "If the nation disposes of the possessions of an individual, the alienation will be valid for the same reason; but justice demands that this individual be recompensed out of the public money.' (Book 1, ch. 22, § 244.) "And again: The necessity of making a peace authorizes the sov ereign to dispose of things even belonging to private persons, and the eminent domain gives him this right. But these cessions being made for the common advantage, the state is to indemnify the citizens who are sufferers by them.' (B. 4, ch. 2, § 12.) "This language, originally and always that of reason, has now be come the language of authority, to which no nation is superior; the consciences of all being bound by what is so universally just, and their conformity being required by the uniform practice of the civilized world. "If the United States have extingushed Mr. Meade's claims upon Spain by virtue of their own sovereign power, call it the exercise of eminent domain, or the taking of private property for public use, or by any other name, the conclusion is not to be resisted that they owe him a just satisfaction, that they are bound to repair his damages, to make good his losses, to make him restitution, to indemnify him, or make him whole. It would be in violation of the spirit as well as the letter of the rule to impose upon him anything less than indemnity and satisfaction; to re quire him to participate with others in the division of an inadequate sum, and to apply to his case a scale that may be well enough graduated for claims which, under all circumstances, are subject to national control, but is a wholly unfit measure of claims surrendered by virtue of eminent domain, and by that surrender become a public debt." 4 Am. St. Pap. (For. Rel.), 793. Mr. Meade's claim came, under an act of Congress, before the Court of Claims in the December term of 1866. From the proofs there submitted it appeared, in addition to the facts above stated, that on the trial before the junta Mr. Meade put in evidence and surrendered all his vouchers and evidences of indebtedness. These were canceled and filed in the finance department of Spain. The Cortes determined to provide for the payment of the decree. They were, however, informed by the Spanish secretary of foreign affairs and by the American minister at Madrid that if the treaty of 1819 were ratified and certain private grants in Florida were annulled, the United States would pay Meade's claim. They accordingly annulled the private grants; Spain ratified the treaty; the United States accepted the ratification and acquired thereby Florida, free from private grants. While the final acceptance of the treaty was under consideration, Mr. Meade notified the President and Senate that if provision was not made for the full and immediate payment of his claim, he preferred to remain a creditor of Spain, and objected to having his claims appropriated by the United States. No such provision was made, and he was sent, with other claimants, before a commission established under the treaty. The commissioners refused to recognize the Spanish decree, and required him to produce the original vouchers. The Government sustained the commissioners in their demand. Spain, however, refused to deliver them, and the commission expired. The United States paid to other claimants the $5,000,000 provided for by the treaty. Mr. Meade's claim was, therefore, lost by the refusal of the United States to recognize the Spanish decree, and of Spain to furnish the original vouchers. By the convention of 1834 (8 Stat. L., 460) the United States again released Spain from all claims of American citizens. On these facts the following conclusions were reached by the Court of Claims: "I. The Government may take private property for public use by the terms of a treaty, and may release the choses in action of American citizens to a foreign Government. "A debt due to an American citizen from a foreign Government is as much property as houses and lands, and when taken for public use is to be paid in the same manner. "A release by the United States to a foreign Government (in part consideration of a cession of territory) of an indebtedness to an American citizen, acknowledged to be valid, is a taking of private property for public use. But where a special mode of obtaining compensation is designated by statute or by treaty, or where the power of assessing or deciding is lodged in a special tribunal, the remedy designated can alone be pursued and no action therefor can be maintained in this court. |