judiciary. In view of the special regard enjoyed by the courts in the West, this parallel development in China is not unnatural. The record of the courts in dealing with German, Russian and other cases has been satisfactory, considering all the circumstances. And the judicial system has functioned as a single organization throughout practically all China, as the mass of appeals entertained by the Supreme Court testifies, in spite of tuchunism. Moreover, not all tuchuns are as bad as some. But regarding them all as rascals, they have no importance in the matter now under consideration, since if they wished to play mah jong with a foreigner's property they would not be deterred by his consuls. Their eyes would be upon his country's gunboats.

Considering these factors, and apart from the political influences urging such a step, it is submitted that there is good ground for the relinquishment of extraterritorial jurisdiction. Not only that, but for going the whole way and making no hard conditions. With such a civilization as the Chinese to assure the elaboration of regular legal principles, with such a problem of adaptation as will have to be met, it would seem to be essential that as early as possible the development of Chinese jurisprudence and of practical rules for its application should be allowed unlimited scope. On the other hand, in view of the comparative growth of republican institutions in China, of the complexity of the newly-adopted Western business methods and of the inexperience and scarcity of judicial timber, it would seem that China would be making a mistake if she failed to employ in her courts eminent legal minds from Western countries, such as might be appointed by her, having no relationship to a foreign government and simply serving as highly qualified advisers without authority other than that which the government might think it advisable to confer. Such a mistake it seems unlikely, from the utterances of her statesmen, that China will make.

Finally, it may well be asked, what is the real issue in the matter of the relinquishment of extraterritorial rights. Is it the apprehension of foreigners that they will be mulcted by Chinese judges and refused the execution of judgments by officials? Is it mistrust of Chinese law and the fear of Chinese prisons? Or is it the vision of losing a very much larger body of privileges which have indeed developed as parasites upon extraterritoriality but which are not essential parts of it, viz., the special position occupied by foreigners in the occupation and government of settlements and concessions, the freedom from taxation, etc.? The question of the relinquishment of extraterritoriality is entitled to be considered on its own merits, unclouded by considerations of a non-juridical character.

OPINIONS OF THE MIXED CLAIMS COMMISSION,
UNITED STATES AND GERMANY

BY EDWIN M. BORCHARD

Professor of Law, Yale University

(PART II)

The Mixed Claims Commission, United States and Germany, is nearing the completion of its labors. It has considered about 12,000 claims, of which about 7,000 have been entirely disallowed. The claims as originally instituted amounted to some $1,480,000,000, including the government claim for reimbursement of Rhine Army costs, a claim not pressed. The awards to American citizens and corporations will amount, it is estimated, to about $125,000,000 principal and about $50,000,000 interest (to January, 1926), a total of about $175,000,000; the government's claims for subrogation as an insurer on maritime losses, for lost Shipping Board vessels, and in the Veterans' Bureau, will amount, with interest, to about $60,000,000. Considering that the treaty under which these awards were made established rules of liability and damages widely exceeding the rules of international law, the ratio between awards and claims is probably not far in excess of the average, which is comparatively small. It may also be said that the commission, dealing with 12,000 claims in approximately three years, has established a record for speedy adjudications never before achieved. A critique of the decisions and opinions of the commission down to January, 1925, was essayed in an editorial comment published in this JOURNAL, Volume XIX, p. 133. The present article will undertake to consider the decisions and opinions rendered during 1925. These practically conclude the decisive judicial work of the commission.

The principal opinions and rules of decision were rendered before 1925; those rendered in 1925 involved mostly minor jurisdictional questions and certain supplementary decisions, including the liability of Germany for loss of profits. From the point of view of international law and the law of claims, these questions are important and deserve some extended analysis.

The "Opinions dealing with claims of American nationals for damages growing out of the deaths of aliens "2 involve several claims of American dependents of British nationals, killed in the Lusitania disaster. The question was whether such American citizens had an independent standing before the commission as entitled claimants, and whether such claims were American in

1 Borchard, Diplomatic Protection of Citizens Abroad, pp. 857-858.

* Opinions, p. 195; this Journal, Vol. 19, p. 630. These opinions are now published by the Mixed Claims Commission in a consolidated edition, with the same page numbering as the individual opinions.

origin, within the meaning of earlier decisions. In its Opinion in the Lusitania Cases, page 19, the commission, by Umpire Parker, had held that

In death cases the right of action is for the loss sustained by the claimants, not by the estate. The basis of damage is, not the physical or mental suffering of deceased or his loss or the loss to his estate, but the losses resulting to claimants from his death.

The question then was, who were properly the claimants thus designated. In the Life Insurance Cases3 it had been held that insurance companies, though sustaining damage through the premature death of the insured, were too remotely affected to be entitled claimants, and were not "surviving dependents," who alone were protected by the treaty. In the present cases, dependents of the deceased sued for loss of support and mental suffering. The Umpire, Judge Parker, held that inasmuch as, under the categories of liability established in the Treaties of Versailles and Berlin, Germany was obligated to pay for damages suffered by the nationals of the Allied and Associated Powers resulting from the deaths of civilians caused by war, Germany was liable to compensate American dependents for the loss sustained by them through the death of a British subject. Their claims were held to be original, not derivative, to have arisen at the moment of the alien's death, and to have been instituted on their behalf by the United States for the "economic loss" sustained by the United States in their persons.

The decision gives rise to grave doubts, in matters of principle. While it is true that surviving dependents have a right of action, especially preserved to them in the Treaty of Versailles, it is a question whether international law does not imply the condition that the decedent must have had the nationality of the claimant country. Both precedent and theory sustain the belief that citizenship of the decedent in the claimant country is always required as a condition of an international claim. Where heirs have been admitted to the jurisdiction of international claims commissions, doubts have arisen whether the heirs as well as the decedent must have the nationality of the claimant country, some commissions dispensing with this necessity in the case of the heir but not in the case of the decedent. To be sure, practically none of these cases were actions for wrongful death of the decedent, but involved inherited claims. Yet it is not believed that this modifies the principle. In these Lusitania cases, the Department of State appears to have entertained considerable doubt whether it could press claims of American dependents arising out of the wrongful deaths of aliens. Theory justifies the doubt. When a state espouses the claim of its citizen, it is not merely p. 593.

'Opinions, p. 103; this JOURNAL, Vol. 19,

Borchard, op. cit., sec. 284.

5

Ibid. sec. 285, and particularly Umpire Ralston's remarks in Corvaia (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 782, 809.

In the report of the Secretary of State to the Senate, March 2, 1921, the Secretary suggested that "these cases do not possess the element of continuous American nationality."

prosecuting for its "economic loss," but for the loss of prestige and moral injury it has sustained and would sustain if it permitted its citizens to be injured without redress. Diplomatic protection is the sanction which insures a standard of treatment commensurate with international law. If states permitted their citizens to be killed abroad promiscuously or without redress by other states or their officials, the "injured" state would soon lose prestige and its citizens that security which diplomatic protection is designed to afford. Rules of municipal law as to the survivorship of causes of action are likely here to confuse rather than aid. It has not heretofore been deemed a cause of international complaint, if national dependents sustain injury through the killing of an alien. Other nationals may also sustain "economic loss" through such wrongful act, and if dependents, why not creditors, partners, and even insurers? Indeed, a state might thus have to pay damages to foreign countries for injuries inflicted upon its own citizens. Surely this could not be good law. The reason for the rule that the killed or injured person must be a citizen of the claimant state is that the prestige of only one state has been deemed impaired by a wrongful assault, and that is the national state of the killed or injured person. As that state alone could have interposed to prevent the injury, how can another state, whose citizen merely suffers a resultant pecuniary loss, claim damages for an "original" wrong? The question then arises whether the Treaties of Versailles and Berlin change these rules, which I respectfully venture to believe are rules of international law in this matter. Clauses 2 and 3 of Annex I following Article 244 of the Treaty of Versailles deal with "damage . . . to civilian victims . . . and to the surviving dependents of such victims." Does this mean "surviving dependents," regardless of the nationality of victims or dependents? Does it establish new rules of substantive liability or rules governing the measure of damages? Injuries to the person or property are to be redressed. Is the dependent's "economic loss" an injury to his "property"? The question is not answered by the opinion. But the Umpire evidently believed that the fact that the treaty gave [American] "surviving dependents" a right of action, made the nationality of the decedent immaterial. I regret my inability to reach the same conclusion, notwithstanding the fact that the defendant country might thus escape liability where decedent and surviving dependent have different nationalities. Claims commissions are tribunals of very limited jurisdiction, limited notably by the requirements of nationality; and even considerations of abstract justice cannot, it is believed, enlarge a jurisdiction limited by treaty and international law. Before the Repara

tion Commission, each nation adopted its own rules for measuring the damages due to wrongful deaths, but it is believed that they were interested only when the deceased was a national. The measure of damages varied considerably and might well include, as did the rules of the Mixed Claims Commission sitting in Washington, the loss of support and mental suffering of the surviving dependents, especially as the beneficiaries of

any award were the surviving dependents. Although Great Britain rejected the claims of American citizens, surviving dependents of deceased British subjects, and although the Mixed Claims Commission rejected the claims of British dependents of deceased American citizens, this is hardly believed to sustain a rule that American citizens may claim for their "economic loss" due to a wrongful act committed against an alien. The death of one person might thus cause numerous international claims. It is not believed that the Treaty of Versailles in this respect purported to or did change the ordinary rules of international law.

In the case of Maud Thompson de Gennes, Docket No. 2262,7 the claimant was born in the United States and, in 1904, married an American citizen, who was lost on the Lusitania in 1915. In 1917, she married a French citizen and thus became French. The American Commissioner appears to have believed that because the claimant in 1915 notified her claim to the Department of State, and because the negotiations conducted between the German and American Governments led up to an admission of liability by Germany in 1916, therefore this claim had been "espoused" by the United States and retained its American character, regardless of the nationality of the claimant. This professed distinction between the nationality of a claim and of the claimant was not sustained by the Umpire, who held that the inter-governmental negotiations had no reference to any specific claim, that these negotiations were merged in the Treaty of Berlin which alone established the bases of liability, that in fact the claim had not been formally "espoused" and, more specifically, that the claim had, by the claimant's marriage in 1917 to a Frenchman, lost its American nationality prior to November 11, 1921, and thus the continuity as an American claim which was essential to its admissibility.

8

The claim of Mary Barchard Williams presented the following facts. The claimant, a native American, married in 1909 a British subject, who was lost on the Lusitania in 1915. At the time, she resided and was domiciled in the United States and had uninterruptedly thereafter resided in the United States. Under section 3 of the Act of March 2, 1907, American women marrying foreigners and who thereby lose their American citizenship, may resume their American citizenship on the termination of the marriage if, residing in the United States, they continue to reside therein. It was thus contended that on the instant of the death of her British husband she, residing in the United States, resumed her American citizenship and, as a dependent survivor, was vested at that instant with the right to make claim. The German Commissioner argued that she had, at the time of her husband's death, a privilege of election whether she would remain a British subject or resume her American citizenship and that some interval must elapse before her election can be established; hence that the claim could not be said to have "Opinions, p. 213; this JOURNAL, Vol. 19, p. 803. Opinions, p. 221; this JOURNAL, Vol. 19, p. 806.