Gambar halaman
PDF
ePub

On page 3 of his brief the counsel names four reasons why the claim of Perché is valid, and certainly, unless all these points affirmatively appear and are proven, the claim cannot be prosecuted here. But the counsel onits à fifth point, equally necessary and vital, and in terms required by the treaty. The acts must not only have been committed (1) by certain authorities, (2) within certain territory, (3) during certain periods, (4) to the barm of French citizens, but, also, the claims must be (5)“ presented” by (Article II) citizens of France, and be claims on the part of * * citizens of France." (Article I.)

The counsel lays much stress upon the rule by which the treaty should be construed, and seems to fear tbat valid and just claims may be defeated by some technical construction. No rule of construction need be sought where the terms of a treaty or statute are plain and free from ambiguity, as is the language conferring jurisdiction upon this Commission.

The first general maxim of interpretation is that it is not permitted to interpret what has no need of interpretation. (Vattel, book 2, chap. 17, sec. 263.) When the act or treaty is conceived in clear and precise terms; when they are clear, and lead to nothing absurd, there can be no reason to refuse the sense which they naturally present. This seems to be a case for the application of this maxim: “Where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature should be intended to mean what they have plainly ex' pressed, and consequently no room is left for construction."

(Supreme Court of the United States, in 2 Cranch, 358, 399; see also Phillimore, vol. II, page 84, sec. LXX et seq.)

What are the claiins and who are the claimants? There is no diffi. culty in finding in the treaty a clear answer to these questions. The claims are those " on the part of corporations, companies, or private individuals, citizens of France, upon the Government of the United States, arising out of acts committed against the persons or property of citizens of France” by certain authorities at certain times and places, i, e., the claims of citizens of France (now such citizens) for certain losses sustained by citizens of France (then such citizens). The claim must be now owned by a French citizen, and must be for a loss sustained by a French citizen. The language is not less clear in the French, viz: 6 Toutes les réclamations élevées par des corporations, des compagnies ou de simples particuliers citoyens français * * * fondées sur des actes cominis * * * au préjudice des personnes ou de la propriété de citoyens français,” &c. If there were any ambiguity in the phraseology of Article I it would be removed by Article II, which requires the Commission to decide all claims described in Article I, “presented to them by citizens of either country.” That is, claims against France presented by citizens of the United States, and claims against the United States presented by citizens of France. So, to recapitulate, the claims must be, (1) on the part of citizens of France, (2) for injuries to citizens of France, (3) presented by citizens of France.

The language is clear. If it were not, still the intention of the two nations is so apparent from the treaty that any other interpretation would be inadmissible.

3. AS TO INTENTION.

The intention of the parties to the treaty is to be gathered from the language of the treaty, and if there is no ambiguity in the language employed there can be no uncertainty as to the intention of the parties. In the case at bar there is no ambiguity. Manifestly it was the inten

[ocr errors]

tion of the parties to provide a means by which French citizens who bad suffered losses from the authorities of the United States of the character described by the treaty should be compensated therefor, and that American citizens who had suffered losses from the operations of the French authorities in the manner described in the treaty should also be compensated therefor; and it cannot be assumed that it was the intention of either party to the treaty to do that which manifestly it was incompetent for one of the parties to perform.

By the laws of France, quoted in the former brief submitted by the counsel of the United States, it is provided that the quality of a citizen of France may be lost by naturalization acquired in a foreign country. By the laws of the United States a citizen of a foreign country, by law. ful process, may become a citizen of the United States. It cannot be assumed that the French Government, ten years afterwards, intended to make any provision for a person who had thus voluntarily alienated himself from that Government and assumed allegiance and citizenship to and in another country; and the assumption that one Government has capacity to protect the rights of citizens of another country is offensive to national sovereignty. If the language were ambiguous, then the intention of the contracting parties should be sought and followed in its construction (4 Comstock, 140). This intention is to be gathered from the context, the preamble, and even the title of the act (Dukedom of Sussex, 8 London Jour., 795). The context has been considered, and is clear and unambiguous, and the intention there shown to legislato for citizens is repeated in the proclamation of the President of the United States, which begins: “Whereas a convention between the United States of America and the French Republic for the settlement of certain claims of citizens of either country against the other was concluded,” &c., and in the preamble of the treaty, "the United States of America and the French Republic, animated by the desire to settle and adjust amicably the claims made by the citizens of either country against the Government of the other,” &c.

The intention thus declared was carried out in Articles I and II, and jurisdiction was given to this Commission to decide claims against tho United States of citizens of France for injuries to citizens of France when presented by citizens of France.

4. AS TO REMEDY OR REDRESS.

When Perché dissolved his allegiance to France and accepted citizenship in the United States he was bound to know legally that thence forward the Government of France could furnish bim no protection wbatever, nor any means of redress for any injury he had sustained either from the United States or from the Government of any other country, and that thenceforward he must look to the United States solely for protection and redress for any grievances that he might have suffered, or loss that he might have sustained, whether at the bands of the United States or by the authorities of other Governments.

Even if the claimant be without redress for the injury alleged to have been sustained, and the assumption of counsel in that regard were true, it still seems to the undersigned that the point is not pertinent to the present inquiry. It is not believed that the counsel contends that it is within the province of this Commission to adjust differences between the Government of the United States and its citizens, even should it appear that the demands are just and redress is improperly withheld. Therefore the undersigned with deference submits that it is not now o

consequence whether Perché, a citizen of the United States, bas or bas not a remedy against the Government of his adoption for injuries which, as be alleges, that Government inflicted.

But the counsel is in error in assuming that there is no such tribunal. All claims for injuries to citizens by authorities of the Government may be investigated by Congress and paid by its direction. From time to time Congress has delegated its power of investigation and decision of claims against the Government to certain tribunals constituted by it to pass upon certain limited and clearly defined classes of these claims. Such is the “Court of Claims” and such was the “ Southern Claims Commission." Over all other claims not included within the classes over which these tribunals had jurisdiction Congress still retained and now retains its power, and to that tribunal Perché and any other claimant has a right to appeal. It is reported that some two thousand cases, claims of native as well as naturalized citizens, are now pending there, and committees, called committees on war claims, are appointed to investigate such claims and report upon them to Congress for its action. Every citizen of the United States, native or naturalized, has therefore a tribunal to which he can resort for redress.

The undersigned has been unable to find that Perché's case was pre. sented to the Southern Claims Commission, but he does find a general decision of that tribunal somewhat to the effect stated by the counsel for the French Republic, and which is contained in the report of December 11, 1871. (Forty-second Congress, secoud session, H. R. Mis. Doc. No. 16). The commissioners say:

Questions at once arose as to the extent of the jurisdiction conferred by the act of Congress. The words of the act couferring jurisdiction are as follows: the President is authorized to

appoint

commissioners, whose duty it shall be to receive, examine, and consider the justice and validity of such claims

of those citizens who remained loyal adherents to the canse and the Government of the United States during the war, for stores or supplies taken or furnished duriug the rebellion for the use of the Army of the United States in States proclaimed as in insurrection."

1. Who are citizens within the meaning of the act? * As this Commission is created by act of Congress, and its jurisdiction limited by the statute ; as it is only to examine and report to Congress, and has not the authority or functions of a court, its jurisdiction must be kept within the very terms of the statnte. The word “citizen," when used to express the relation of the individual to the Government, ordinarily means one owing paramount allegiance to the State.” It is used so in distinction from the word "inhabitant."

This ordinary ineaning should be given it as used in the statute. Deeming the act intended to apply to matters of municipal legislation, and vot to affect rights standing upon international law, we do not follow the decisions cited from the prize courts, which seem, in some cases, to extend its meaning. The context, “citizens who remained loyal adherents to the cause and Government of the United States," indicates that those persons are meant of whom

loyalty" could be required “during the war.” Loyalty during the war cannot reasonably be interpreted as meaning less than that relation from which the Government might have required military service. * Loyalty was not required of a foreigner. He was deemed to do his whole duty if he kept strictly neutral. " But neutrality during the war in a citizen of the United States was not loyalty.

So the claims of persons aliens during the war, but afterwards naturalized, were not allowed; not because they were not valid, not because the claimant was not recognized fully as a citizen of the United States, but because that particular tribunal had not been authorized by Congress to investigate that class of claims.

The undersigned does not contend that naturalization is retroactive, but that it effects a full, complete, and total chiange of allegiance, and that from the day of naturalization all right to the protection of the pative country is forfeited, and in its place the naturalized citizen obtains

[ocr errors]

#

*

the rights, the advantages, and also the disadvantages of citizenship in the country of his adoption.

In changing his allegiance he may fairly be presumed to have considered and estimated the advantages on the one hand and the disadvantages on the other; but whether he did so consider or not is not a question for this tribunal. It may properly be presumed also that, as an American citizen, if he ought to have redress for losses which he sustained while he was a French citizen, that the Government of the United States will deal with him as it has dealt with its own citizens wbo were loyal to its authority during the rebellion, and make him the proper compensation whenever his case shall be presented to the tribunals of the country having authority to act in his behalf. But whether this be 80 or not, the counsel for the United States submits most respectfully that the Government of the French Republic has not, by this treaty, undertaken to give him either an equitable or a legal remedy for the losses be sustained, and that if it had so undertaken its own jurisdiction was not adequate to the end in view.

At a meeting of the Commission held May 20, 1881, the counsel for the French Republic made the following argument:

It appears that the memorialist was a native citizen of France; that he suffered injury and damage during the war of secession at the hands of authorities of the United States; that as early as 1864 he claimed indemnity on account of said damages; that the claim was presented by him to the French consul at New Orleans, and that at a later date, to wit, in the year 1870, this memorialist became an American citizen. Joseph Napoleon Perché, as he is called here, is no other than the arch. bishop of New Orleaus; it was at the time he was promoted to the archbishoprie of New Orleans that, inasmuch as he was to be trustee for real estate belonging to the eburch, he became an American citizen. Such are the facts of the case as they appear from the papers before me.

The question comes up in this form: Since the right reverend archbishop was naturalized in the United States, this Commission has got to consider whether he has a right to present his claim, or whether bis right to ivdemnity has been forfeited by a subseqnent change of nationality.

The counsel for the United States says he has an undoubted right to present a claim, but not before this Commission. And here comes the first question to which I shall call the attention of the Commission: Is there, as is contended in the brief for the United States, a mode of redress left open to the archhishop of New Orleans Supposing that this Commission should exclude him on the ground that his citizenship has been changed, is there in the United States a court of law, or a court created by Congress, which has jurisdiction over his case? To this I answer no; and I shall now proceed to give the reasons in support of this answer.

In the Southern Claims Commission it was held that aliens residing in the United States bad no right to appear before that Commission and to recover damages for losses inflicted upon them, and the learned judges grounded their decision, as I understand it, on the very statute which bad created that court. They said that “that statute does not grant us jurisdiction of cases of this nature." Therefore, the alien who has remained veutral during the war cannot be compared to the citizen of the United States who was not only neutral, but loyal.

On the other hand, a decision was rendered by that same Commission in regard to aliens who were naturalized in the United States after the date of the injury suffered, and in rendering its decision the Commission said :

"We tbink Congress intended to reserve to itself the consideration of the rights of foreigners. We have, therefore, held that foreigners domiciled here are not citizens within the limits of the act. We have also held that where claimant was also alien when the claim accrned, his naturalization since the war does not remove his disability."

In other words, an alien naturalized in the United States subsequently to the time the claim accrued had po standing before the Southern Court of Claims. This doctrine bas been also asserted by the State Department of the United States, in the case of Emile Sauvé, a Frenchman who had resided in Mexico and wbo claimed to have suffered damages in that country. Sauvé came to the United States and was naturalized. After he had obtained his letters of naturalization he applied to the State Department for intervention on his behalf, on account of injuries suffered in Mexico while a citizen of Frauce. To this application the Hon. Hamilton Fish replied in

are

substance : “Your naturalization was only prospective. It could not act retroactively, and therefore I cannot interfere on your behalf for acts anterior to your naturalization by the United States."

Obviously, the case cannot be presented to the Court of Claims. But my colleague on the other side says, there is the Congress of the United States; and Congress may do something or other. To wbich I reply, that Congress has no jurisdiction over such cases ; and for this simple reason, that naturalization is prospective. And, therefore, if Congress enacted to-day a measure tending to indemnify these claimants, it would violate one of those principles which govern the matter of naturalization.

Again, it is said that Congress bas sovereign power, and that it may grant relief. Simple measures of relief seldoni pass Congress. I have a witness here who will testify for me. It is my colleague on the other side. He was a member of Congress, and I would like to ask him how many claius of aliens have ever been adjudicated by that body. However, I can answer for him: One in fifteen years. One, only one, a German case, and this was the result of long correspondence and protracted negotiation.

I come now to another branch of the case, which arises from the convention itself. It has been submitted already that Article I of the convention provided that "all claims on the part of corporations, companies, or private individuals, citizens of France, upon the Government of the Uvited States arising out of,” &c. The couvention speaks of all claims on the part of corporations, companies, or private individuals, citizens of France. These words should be construed as referring to those who were citizens at the time the claim accrued.

And now as to Article II, to which the brief on the part of the United States refers. It is merely by way of reference tbat the word citizen is mentioned. The governing article, the provision which controls all the others in regard to this subject matter and in regard to the status of claimants, is found in the words I bave just cited. It may be said tbat there are other articles in wbich the word citizen may bave been used, but it is not in such a way as to give us a construction of the words I have quoted; and the proof of it is this, that Article I, where these words are found, refers to claims " on the part of citizens,” &c.; while in Article II the words “on the part of citizens” bave been omitted. It is worded this way, "presented to them by the citizens." So in the article which defines the jurisdiction of this Commission, the words used

on the part of citizens,” and in the following provision, which most evidently refers to preceding article, the words are changed, and the paragraph reads, “presented to them by the citizens of either country.”

There is, however, another way of ascertaining the exact meaning of these words, and of explaining them. These words, "on the part of,” were borrowed from the treaty of Washington of May 8, 1871, between the United States and Great Britain. In a case pending before that Commission, where a somewhat analogous demurrer was interposed on behalf of the United States, in opposing it Her Britannic Majesty's counsel used the following language: “Why were the words on the part of used ! It seems to me that they must have been used ex industria to embrace claims other than those which conld be presented by British subjects, and that they should include all cases arising out of a violation of British rights by acts committed against the persons or property of those entitled to the protection of the British Crown in respect of such acts committed. And thereupon the demurrer was overruled by the Commission.” (See Henry Howard's Report, 329.) I submit that the convention between France and the United States contains the same expressions, and that here the decisions of the English Commission must be of great weight.

And now I come to the second division, I believe, of the brief of the counsel of the United States: “Has the Commission jurisdiction over these claims ?" And this leads to this further inquiry: What is jurisdiction, and what constitutes jnrisdiction in this case? We have stated in our brief that there were four requisites to give jurisdiction to this Commission. First, the acts complained of had to be conmitted by the United States; second, the acts had to be committed within the jurisdiction of the United States as it is defined in the treaty; third, the acts had to be committed during the period of time named in the treaty; fouri h, the acts complained of must have inflicted injnries on the person or property of a citizen of France. The brief on behalf of the United States contains, in answer to this, the following statement (page 1): “Jurisdiction is made up of iwo essential qualities, (1) jurisdiction of the person, and (2) jurisviction of the case; or, as the counsel for the French Republic terms it in the paragraph quotrd, jurisdiction of the claim. In all personal actions or causes involving personal rights, a court cannot proceed one step unless it has juri diction of the person, and they, having jurisdiction of the person, if it have also jurisdictiou of the case or claim, it may proceed to adjudge the rights of the party."

I claim that the jurisdiction of this Commission, as it is sought to be established by the counsel for the United States, would conflict with the best precedents. I will quote first froin a case decided by the Supreme Court of the United States. I select

« SebelumnyaLanjutkan »