Jurisdiction of the Court of Claims. should be Chief Justice, and its decisions were no longer to be advisory but to be judgements within the scope of its jurisdiction, although the Congress and the executive departments might refer claims to it to have the facts found, to be reported to the Congress and to the Departments, respectively. So much for the citizens of the United States. The claims of a foreign government were untouched, but by permitting a foreign claimant to sue the United States in the Court of Claims if the claimant's country allowed a foreigner to sue it in one of its courts, relief was given the departments and Congress from many claims which otherwise would have perplexed them, as in times past, and assured to suitors an impartial finding of fact and a judicial as well as a judicious application of the law. The Court of Claims, starting very modestly, and still inadequate, as it only allows suit within narrow lines, has grown in confidence; with such growth it has had its jurisdiction extended, so that its sphere of usefulness is much larger than it originally was. Its decisions are judgements, as are those of other courts, from which an appeal lies to the Supreme Court of the United States, reached by a procedure similar to although somewhat freer than that of other courts, and in every instance according to recognized and definite principles of law. In addition, it still acts in an advisory capacity to the Congress and to the departments. Its jurisdiction is thus defined by section 145 of the Act of March 3, 1911: Section 145. The Court of Claims shall have jurisdiction to hear and determine the following matters: First. All claims (except for pensions) founded upon the Constitution of the United States or any law of Congress, upon any regulation of an Executive Department, upon any contract, express or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States either in a court of law, equity, or admiralty if the United States were suable:... Second. All set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court: ... Third. The claim of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of loss by capture or otherwise, while in the line of his duty, of Government funds, vouchers, records, or papers in his charge, and for which such officer was and is held responsible.... Section 148. When any claim or matter is pending in any of the executive departments which involves controverted questions of fact or law, the head of such department may transmit the same, with the vouchers, papers, documents and proofs pertaining thereto, to the Court of Claims and the same shall be there proceeded in under such rules as the court may adopt. When the facts and conclusions of law shall have been found, the court shall report its findings to the department by which it was transmitted for its guidance and action: Provided, however, That if it shall have been transmitted with the consent of the claimant, or if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter it has jurisdiction to render judgment or decree thereon, it shall proceed to do so, in the latter case giving to either party such further opportunity for hearing as in its judgment justice shall require, and shall report its findings therein to the department by which the same was referred to said court. The Secretary of the Treasury may, upon the certificate of any auditor, or of the Comptroller of the Treasury, direct any claim or matter, of which, by reason of the subject matter or character, the said court might, under existing laws, take jurisdiction on the voluntary action of the claimant, to be transmitted, with all the vouchers, papers, documents, and proofs pertaining thereto, to the said court for trial and adjudication. . . . Section 151. Whenever any bill, except for a pension, is pending in either House of Congress providing for the payment of a claim against the United States, legal or equitable, or for a grant, gift, or bounty to any person, the House in which such bill is pending may, for the investigation and determination of facts, refer the same to the Court of Claims, which shall proceed with the same in accordance with such rules as it may adopt and report to such House the facts in the case and the amount, where the same can be liquidated, including any facts bearing upon the question whether there has been delay or laches in presenting such claim or applying for such grant, gift, or bounty, and any facts bearing upon the question whether the bar of any statute of limitation should be removed or which shall be claimed to excuse the claimant for not having resorted to any established legal remedy, together with such conclusions as shall be sufficient to inform Congress of the nature and character of the demand, either as a claim, legal or equitable, or as a gratuity against the United States, and the amount, if any, legally or equitably due from the United States to the claimant Provided, however, That if it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter, the subject matter of the bill is such that it has jurisdiction to render judgment or decree thereon, it shall proceed to do so, giving to either party such further opportunity for hearing as in its judgment justice shall require, and it shall report its proceedings therein to the House of Congress by which the same was referred to said court.1 The provisions of the act so far quoted refer to citizens of the United States or to branches of the Government, but foreigners are entitled to their day in court if they bring themselves within the following category: Section 155 Aliens who are citizens or subjects of any government which Aliens accords to citizens of the United States the right to prosecute claims against such may government in its courts, shall have the privilege of prosecuting claims against the prosecute United States in the Court of Claims, whereof such court, by reason of their subject matter and character, might take jurisdiction. We must not, however, claim for the United States leadership in the judicial settlement of claims against itself, because it appears to be the rule rather than the exception in civilized states generally, a fact pointed out, as long ago as 1870, by Mr. Justice Nott, late Chief Justice of the Court of Claims, in delivering the opinion of the court in the case of Brown v. United States (6 Court of Claims Reports, 171, 192): claims. nations. In the great arrogance of great ignorance, our popular orators and writers have Practice impressed upon the public mind the belief that in this republic of ours private rights of other receive unequalled protection from the government; and some have actually pointed to the establishment of this court as a sublime spectacle to be seen nowhere else on earth. The action of a former Congress, however, in requiring (Act, July 27, 1868, 15 Stat. L., p. 243) that aliens should not maintain certain suits here unless their own governments accord a corresponding right to citizens of the United States, has revealed the fact that the legal redress given to a citizen of the United States against the United States is less than he can have against almost any government in Christendom. The laws of other nations have been produced and proved in this court, and the mortifying fact is judicially established that the government of the United States holds itself, of nearly all governments, the least amenable to the law. Nevertheless, the fact that a nation, holding itself above the law in disputes with its citizens, should yield to public opinion, and subject itself to suit in the Court of Claims is of good augury, as other nations may perhaps be minded to follow its 1 United States Statutes at Large, 61st Congress, 1909+11, vol. 36, part 1, pp. 1136-8. Develop ment of practice in the Court. example in the international field as it has followed theirs in the domestic domain. And this Court of Claims, although its jurisdiction is restricted, nevertheless shows the advantage of a separate and distinct tribunal in which a nation can be sued. And within the first year of its labours its presiding judge, in the report of its labours to Congress, pointed out the advantages of judicial as distinct from political settlement for settlement by the legislature or by executive departments is political. In the course of the same report he outlined the sphere of its activities and the method of providing proper procedure, if only we are as intent upon making the judicial settlement of disputes against government a success as we have been intent upon making the judicial settlement between individuals a success. From this report a single passage may be quoted, but it is sufficient for present purposes: As to the business of the court, we are convinced that no one who has not had personal experience on the subject, can have any correct idea of its diversity, its intricacy, its perplexity, the exhausting labor necessary for its investigation, or the large sum of money it involves. Until the institution of this court, there had never been anything like a systematic inquiry into the modes of action by the Government through the executive departments, or the relation in regard to contracts and the liabilities arising therefrom which the Government bore to the citizens. It was inevitable, and it is astonishing that it should not have been sooner perceived, that among twenty-five millions of people, inhabiting the almost boundless territory comprehended by the Union, innumerable questions of the most difficult and delicate nature must have arisen, delays in the decision of which were alike discreditable to the moral sense of the people, and the public faith of the government, of which the people were the foundation. It has been often asserted and proved by the experience of the British Parliament, that legislative bodies are unfitted, by the pressure of great public interests, from careful judicial investigation into private rights. The consequence has been in our country that claims accumulated until their magnitude repressed all willingness to investigate them, and a state of things arose which made it hopeless almost to present a claim against the United States with any prospect of a decision. Such was the condition of affairs when we entered upon the discharge of our duties. Our field of action was entirely new. We had no precedents to guide us. It was necessary at once to adopt some system of rules for the transaction of business. The ordinary rules of practice in courts of law were obviously inapplicable. We were forced to adopt rules in advance of any experience upon the subject, conscious that we should be forced often to modify and sometimes to abrogate them. We found numerous cases involving questions entirely out of the path of ordinary legal investigation, requiring a degree of care and study rarely necessary in courts of justice. Cases of contracts, intricate in their details, imperfectly defined by the evidence, reducible with difficulty to any legal principles, and enormous in amount, met us at the threshold. Cases involving the proper construction of treaties, important questions of public law, and that most difficult and delicate of all questions, the responsibility of the United States to their citizens, were laid before us. The construction of acts of Congress, the legitimate powers of the executive departments, the duties and liabilities of Government officers, the constitutional powers of the general government, the duties of neutral nations, and questions arising out of a state of war, were all, directly or incidentally, to be inquired into. It cannot be presumed that, with a due regard to our own reputation or to our official oaths, we were disposed to pass lightly upon questions of such momentous importance. Our object has been to give each case such a degree of care and patient attention as would enable us to use it as a precedent in subsequent cases of a like character. Our desire has been, not to get rid of the cases, but to decide them; and in order to do that they must be carefully examined.1 1 17 Court of Claims Reports, 6, 7. The foreign offices of the world are full of grievances, are full of disputes, are full of cases against the members of the society of nations, and if a court of claims or if a court of the society existed, which could take jurisdiction of claims, not prosecuted by the individual but by the State, or if by the individual only with the consent of his government, this court would not suffer from lack of business. Indeed, as the late Baron Marschall von Bieberstein said at the Second Hague Peace Conference, speaking for the Imperial German Government, the court would be overwhelmed with business. 28. United States v. State of North Carolina. Notwithstanding Justice Nott's harsh statement that the United States, of nearly all governments, is the 'least amenable to the law', it is gratifying to note that, since the year 1870, in which the learned Justice broke a lance for judicial settlement, the United States has mended its ways. It not only continues to allow itself to be sued, but it has appeared more than once as plaintiff in the Supreme Court of the United States against more than one of the United States. If the appetite grows by what it feeds on, as the maxim says it does, Mr. Justice Nott would be able, in a few years, to hold up his government not as a warning but as a model to others in the matter of judicial settlement. First case of suit by the United The case of the United States v. North Carolina (136 U.S. 211), decided by the Supreme Court in 1890, is the first of a series in which the United States appeared in the Court of the States as a party litigant against one of them. The entire statement of the case, taken from the opinion of Mr. Justice Gray, speaking for the States against court, is adopted by the reporter as sufficient for the purpose of the professional, a State. and it is therefore amply sufficient for the more restricted purpose of the general reader. Therefore, in the language of the report: upon This was an action of debt, brought in this court, on November 5, 1889, by the An action United States against the State of North Carolina, upon one hundred and forty- of debt seven bonds under the seal of the State, signed by the Governor, and countersigned State by the Public Treasurer, for one thousand dollars each, payable in thirty years from bonds. date, with interest at the yearly rate of six per cent, alleged in the declaration to be payable half-yearly until payment of the principal. . . ... The declaration alleged that, at the dates when the bonds became payable, payment of the principal was demanded by the United States and refused by the State of North Carolina. The State of North Carolina pleaded payment of the principal sums of the bonds after they became payable, together with all interest accrued thereon to the days when they became payable. The United States moved for judgment, as by nil dicit, because the plea did not answer to so much of their demand as was for interest after the bonds became payable. The case was submitted to the decision of the court upon a case stated, signed by the Attorney General of the United States, and by the Attorney General of North Carolina, as follows: The parties to the above-entitled case stipulate that upon the issue joined the facts are that payment of the bonds was demanded and refused at the several times in the years 1884 and 1885 in the declaration alleged; but subsequently, No objec- juris- est due upon or about the 2d day of October, 1889, all coupons upon the bonds were paid, 'The parties submit to the court that, in case as matter of law the principal of said bonds did so bear interest after maturity, judgment is to be entered for the plaintiff for $41,280; but that if it did not so bear interest, judgment is to be entered for the defendant.'1 The question of jurisdiction, it will be observed, was waived, in so far as it could be, by the parties, inasmuch as North Carolina joined with the United States in submitting the case to the Court of the States; but the Supreme Court was not unmindful in the premises, and although the question of jurisdiction was not raised, and although it is not mentioned in the opinion of the Court, it was nevertheless considered by the judges, as appears from the following statement of Mr. Justice Harlan, who, in the case of United States v. Texas (143 U.S. 621, 642), decided in 1892, said: It is true that no question was made as to the jurisdiction of this court, and nothing was therefore said in the opinion upon that subject. But it did not escape the attention of the court, and the judgment would not have been rendered except upon the theory that this court has original jurisdiction of a suit by the United States against a State. The judges, therefore, had apparently debated the matter, although the question was not raised, remembering that there were no ordinary suitors before the court, and that the court, in justice to them as well as to itself and to the cause of judicial settlement, dared not take jurisdiction unless to do so were a duty cast upon them by the Constitution. But further observations upon this phase of the question would be out of place, as the question of jurisdiction was raised and elaborately considered in the case of United States v. Texas, presently to be considered. The only question-and it moved Is inter- within narrow compass-in the case of United States v. North Carolina was by agreement of the parties whether interest was due and payable after the maturity of the bonds. It being admitted by the plaintiff and defendant that interest was payable upon the coupons until the maturity of the bonds, or, as Mr. Justice Gray put it, the only question presented for our decision is whether, as a matter of law, the principal of the bonds bore interest after maturity, and according to our opinion upon this question, judgment is to be entered for the one party or the other'.2 on State bonds after maturity? If the law binding individuals should apply to the State without modification, the question could not be considered doubtful, but in public law the interests of States are more tenderly treated, and a procedure proper as between private persons is tested in order to see if it should apply in all its rigour to public persons, which we call States in the United States and Nations in the society of nations. It seems 1 United States v. State of North Carolina (136 U.S. 211, 212-15). Ibid. (136 U.S. 211, 216). |