gress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence or judgment, which shall in like manner be final and decisive; the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned; provided, that every commissioner, before he sits in judgment, shall take an oath, to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question, according to the best of his judgment, without favor, affection, or hope. of reward." Provided, also, that no State shall be deprived of territory for the benefit of the United States.

All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdictions, as they may respect such lands and the State which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall, on the petition of either party to the Congress of the United States, be finally determined, as near as may be, in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States.

REPORT OF THE COMMITTEE ON DETAIL, PRESENTED BY MR. RUTLEDGE TO THE FEDERAL CONVENTION, August 6, 1787.*

ARTICLE IX.

Sect. 2. In all disputes and controversies now subsisting, or that may hereafter subsist between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers. Whenever the Legislature, or the Executive authority, or lawful Agent of any State, in controversy with another, shall by memorial to the Senate, state the matter in question, and apply for a hearing; notice of such memorial and application shall be given by order of the Senate, to the Legislature or the Executive authority of the other State in Controversy. The Senate shall also assign a day for the appearance of the parties, by their agents, before the House. The Agents shall be directed to appoint, by joint consent, commissioners or judges to constitute a Court for hearing and determining the matter in question. But if the Agents cannot agree, the Senate shall name three persons out of each of the several States; and from the list of such persons each party shall alternately strike out one, until the number shall be reduced to thirteen; and from that number not less than seven nor more than nine names, as the Senate shall direct, shall in their presence, be drawn out by lot; and the persons whose names shall be so drawn, or any five of them shall be commissioners or Judges to hear and finally determine the controversy; provided a majority of the Judges, who shall hear the cause, agree in the determination. If either party shall neglect to attend at the day assigned, without showing sufficient reasons for not attending, or being present shall refuse to strike, the Senate shall proceed to nominate three persons out of each State, and the Clerk of the Senate shall strike in behalf of the party absent or refusing. If any of the parties shall refuse to submit to the authority of such Court; or shall not appear to prosecute or

See M. Farrand, The Records of the Federal Convention of 1787, Vol. II, pp.

183-185.

defend their claim or cause, the Court shall nevertheless proceed to pronounce judgment. The judgment shall be final and conclusive. The proceedings shall be transmitted to the President of the Senate, and shall be lodged among the public records, for the security of the parties concerned. Every Commissioner shall, before he sit in judgment, take an oath, to be administered by one of the Judges of the Supreme or Superior Court of the Senate where the cause shall be tried, "well and truly to hear and determine the matter in question according to the best of his judgment, without favor, affection, or hope of reward."

Sect. 3. All controversies concerning lands claimed under different grants of two or more States, whose jurisdictions, as they respect such lands shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different States.

PROCEEDINGS OF THE FEDERAL CONVENTION, AUGUST 24, 1787.*

Sect: 2 & 3 of art: IX being taken up.

Mr. Rutledge said this provision (for deciding controversies between the States) was necessary under the Confederation, but will be rendered unnecessary by the National Judiciary now to be established, and moved to strike it out. Docr. Johnson 2ded. the Motion.

Mr. Sherman concurred: so did Mr. Dayton.

Mr. Williamson was for postponing instead of striking out, in order to consider whether this might not be a good provision, in cases where the Judiciary were interested or too closely connected with the parties

Mr. Ghorum had doubts as to striking out, The Judges might be connected with the States being parties - He was inclined to think the mode proposed in the clause would be more satisfactory than to refer such cases to the Judiciary

On the Question for postponing (the 2d and 3d Section, it passed in the negative)

N. H. ay. Masts. no. (Cont. no) N. J. no. Penna abst. Del. no. Md. no. Va no. N. C. (ay) S-C no. Geo. ay. [Ayes -3; noes-7; absent 1.]"

Mr. Wilson urged the striking out, the Judiciary being a better provision. On Question for striking out 2 & 3 Sections Art: IX

N. H. ay. Mas: ay. Ct. ay. N. Jay. Pa. abst. Delay. Md. ay. Va ay. N. C. no. S. C. ay- Geo. no. [Ayes-8; noes -2; absent-1.]

CONSTITUTION OF THE UNITED STATESS.

ARTICLE III.

SECTION 1.

The judicial power of the United States shall be vested in one Supreme Court. and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

Op. Cit., Vol. II, pp. 400-401.

Relating to disputes between states and over land questions modeled on procedure in Articles of Confederation.

7 Vote of Connecticut inserted, and that of North Carolina changed to conform to Journal.

SECTION 2.

1. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects.

CONVENTION FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES, ADOPTED AT THE HAGUE CONFERENCE OF 1889.

ARTICLE 20.

With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the Rules of Procedure inserted in the present Convention.

ARTICLE 23.

Within the three months following its ratification of the present Act, each Signatory Power shall select four persons at the most, of known competency in questions of international law, of the highest moral reputation, and disposed to accept the duties of Arbitrators.

The persons thus selected shall be inscribed, as Members of the Court, in a list which shall be notified by the Bureau to all the Signatory Powers.

Any alteration in the list of Arbitrators is brought by the Bureau to the knowledge of the Signatory Powers.

Two or more Powers may agree on the selection in common of one or more Members.

The same person can be selected by different Powers.

The Members of the Court are appointed for a term of six years. Their appointments can be renewed.

In case of the death or retirement of a Member of the Court, his place shall be filled in accordance with the method of his appointment.

ARTICLE 24.

When the Signatory Powers desire to have recourse to the Permanent Court for the settlement of a difference that has arisen between them, the Arbitrators called upon to form the competent Tribunal to decide this difference must be chosen from the general list of Members of the Court.

Failing the direct agreement of the parties on the composition of the Arbitration Tribunal, the following course shall be pursued:

Each party appoints two Arbitrators, and these together choose an Umpire. If the votes are equal, the choice of the Umpire, is intrusted to a third Power, selected by the parties by common accord.

If an agreement is not arrived at on this subject, each party selects a different Power, and the choice of the Umpire is made in concert by the Powers thus selected.

The Tribunal being thus composed, the parties notify to the Bureau their determination to have recourse to the Court and the names of the Arbitrators. The Tribunal of Arbitration assembles on the date fixed by the parties. The Members of the Court, in the discharge of their duties and out of their own country, enjoy diplomatic privileges and immunities.

THE FRENCH SPOLIATION CLAIMS

From time to time the cases known by the generic name of French Spoliation Claims come up for discussion in Congress and in the press and are often debated without any very definite conception of their origin or basis. It may seem strange that claims against the government whose inception is connected with the very beginning of our national existence should still be the subject of consideration as present demands against the government, both before the courts and in the legislative forum.

But dilatoriness in dealing with matters of private right between the citizen and the government seems to have become traditional. Not until 1885 was there any tribunal before which these claims could be prosecuted. Even under the Act of 1885, as will be seen hereafter, a decision of the court has not the legal effect of a final judg ment. Hence, it is that the liability of the government for the payment of these claims settled by unanimous judicial decision a quarter of a century ago is often reopened in Congress and the press and the subject threshed out anew, often in apparent ignorance of the laborious investigation long since made by the Court of Claims into the history and basis of these claims, and the result of that investigation as announced in a number of thorough and well-reasoned opinions.

The origin of these claims is closely intertwined with the stirring events of our struggle for independent national existence. At its darkest hour the astute diplomacy of Franklin and his colleagues convinced the generous and high-minded young King Louis XVI and his counsellors that it would be to the interest of France to enter into an alliance with us. Vergennes and the other ministers of the King clearly saw that we had a great future before us and decided that our friendship was of importance. This view led to our recognition as a government by France, first among all nations, and to the conclusion of two treaties with that country made together and constituting in

diplomatic effect one instrument, the first by many years of all tue treaties entered into by the United States.

By the 11th article of the "Treaty of Alliance between the United States of North America and His Most Christian Majesty, Concluded at Paris February 6, 1778, Ratified by Congress May 4, 1778," the following momentous guaranty was given by each party to the other: 1

Article XI. The two parties guarantee mutually from the present time and forever against all other powers, to wit:

The United States to His Most Christian Majesty, the present possessions of the Crown of France in America, as well as those which it may acquire by the future treaty of peace;

And His Most Christian Majesty guarantees on his part to the United States their liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions, and the additions or conquests that their confederation may obtain during the war, from any of the dominions now, or heretofore possessed by Great Britain in North America, conformable to the 5th and 6th articles above written, the whole as their possessions shall be fixed and assured to the said States, at the moment of the cessation of their present war with England.

The guaranty thus given by France to us was essential to our national existence. We were in the midst of a contest for independence a contest the issue of which was then very doubtful. The act of France in recognizing the separate national existence of revolted British colonies constituted in effect a declaration of war against Great Britain, and as such was fully acted upon by both nations.

The guaranty of our independence here made by France was carried out in the fullest manner. She supplied us with troops and munitions of war most fully and generously and made us large loans in money. Her aid was important, if not indispensable, to our success in gaining our independence.

Our next treaty with her, made in 1782, when the struggle had been practically decided in our favor, is entitled "Contract between His Most Christian Majesty, and the Thirteen United States of North America, relative to payment of loan," etc. It begins: 2

1 Public Treaties of the United States, 1875, pp. 202, 203.

2 Public Treaties of the United States, 1875, p. 214.