Mr. VORYS. Was the treaty of 1923 the treaty under which you say this agreement was worked out? Mr. FITZHUGH. Yes. Mr. VORYS. Was that ratified by the Senate? Mr FITZHUGH. Yes. Mr. VORYS. Then you claim that treaty is the law of the land and requires this payment by our Government? Is that correct? Mr. FITZHUGH. Yes. That is my theory. Mr. VORYS. Then why do we need any legislation? Mr. FITZHUGH. We need legislation because we need an express authorization for an appropriation of money out of the Federal Treasury, which must be made by legislation. Mr. VORYS. This is not an appropriation. Mr. FITZHUGH. No; it is an authorization. Mr. VORYS. If you are correct in your statement, then, we do not need any authorization. Mr. FITZHUGH. I suppose Congress could go right ahead and appropriate it without first passing an authorization bill. But I understand it is the policy of Congress in all matters like this first to pass an appropriation; isn't that it? Mr. JOHNSON. That is the general policy. Mr. FITZHUGH. That is the general policy as I understand it. Mr. ALLEN. Is there really any difference between the problem we are faced with this morning and that which faces the Congress on many other occasions, passing an appropriation bill to—— Mr. BLOOM. An authorization. Mr. ALLEN (continuing). To back up an authorization? That treaty of 1923, as I understand it, was an authorization. We are being called upon today to back up something that we authorized back in 1923; is that not correct? That is the understanding I gather here, so far as the justice of this is concerned, and what I glean from the facts. Mr. BLOOM. You mean the original act was an appropriation? Mr. ALLEN. NO. It was an authorization really. It set up the machinery which was bound to be followed by an act of this kind. We have divested our nationals of their independent individual rights and it seems to me that we are duty bound as a Government, if I understand this thing correctly. Mr. FITZHUGH. I think you are unquestionably right about that. Now, it is just a question of how Congress is going to handle it; that is all. The treaty makes no specific declaration, but the inference flows from it that it created a governmental obligation. Now, as I said a moment ago, I suppose Congress could have just made an appropriation as it did in 1846. Congress did do just that very thing and made an appropriation of $320,000 to pay two installments which were then in default on an award that had been made in favor of American citizens against Mexico under a treaty. I suppose it could have done that in this case. But the policy now, in late years, as I understand, has always been not to make an appropriation directly unless there is an authorization either in the same bill or in a prior bill. Mr. ALLEN. We have plenty of precedent for this sort of thing? 162241-39-5 Mr. FITZHUGH. I think there is a flatfooted precedent in the act I just cited. And another one-I can't see the difference to save my life-between the proposal in this bill and the proposal of the socalled American War Claim Act of March 10, 1928, which appropriated $50,000,000 and made another $50,000,000 available if necessary as an advance, the bill states on its face just like this one does, as an advance to pay awards in favor of American citizens by the Mixed Claims Commission on claims against Germany until they are paid by Germany. Mr. VORYS. You say now in 1934 the treaty expired and the agreement under the treaty expired? Mr. FITZHUGH. 1934? No. Mr. VORYS. That it was extended. Mr. FITZHUGH. The treaty had previously been extended three times. Mr. VORYS. Yes. Mr. FITZHUGH. And then again on April 24, 1934, another extension was made in the form of what was called a protocol and that protocol was for 22 years from that date and it expired on the 31st day of October 1937. Mr. VORYS. What do you mean when you say the agreement has expired of April 24, 1934, and then it was agreed that the Government should be negotiating another treaty? Mr. FITZHUGH. Oh, that is the Special Claims Commission you are talking about there. Mr. BLOOM. That is not in this bill. Mr. FITZHUGH. That is the Special Claims Commission. Mr. JOHNSON. Mr. Chairman, the practical situation of this matter is this, isn't it, Judge Fitzhugh, that these claims have been approved by a commission set up by this Government, set up by this Government and Mexico, under a treaty, and they have been approved many years. That commission has finished its work-expired, I mean, not finished its work-expired by operation of law and out of existence now for 2 or 3 years. Unless legislation of this kind is passed they will never get a dime on their claims. Ι Mr. FITZHUGH. That is right. And let me add this. Everyone of those awards is a judgment on the merits of the claim. The legality of the claim and everything has been adjudicated. That adjudication, under the terms of the treaty, is final. The treaty says both Governments bound themselves to give full force and effect to the award that is made. Mr. JOHNSON. There is no appeal. Mr. FITZHUGH. There is no appeal from it. And that award cannot be taken into consideration in any future negotiations with reference to any other kind of settlement. There is an established and adjudicated right from which there is no appeal. And under that adjudicated right the claimant is left in the position of having had his property taken from him with no person or remedy that he can look to except the United States. He has no lawful right to make any other or different kind of settlement of it and unless he gets his money this way he is simply lost. Mr. BLOOM. Are there any further questions? Mr. CORBETT. Does this bill establish anything in the way of a precedent for the United States Government paying the damages which are caused by other nations to our nationals? Mr. FITZHUGH. None whatsoever. Mr. CORBETT. I recognize from your explanation here that there cannot be much done except to pay this, but I certainly would like to go on record as never being in favor of this thing happening again. Mr. FITZHUGH. First, let me call your attention to this, Mr. Corbett. In the first place, we say there is precedent already established by congressional act for doing the very thing this bill proposes to do in the act of 1846 appropriating $320,000 in an identical situation. Mr. JOHNSON. And that is with Mexico. Mr. FITZHUGH. That is an award against Mexico. Another thing is that under the treaty as interpreted by our State Department the Government is obligated to do this. That cannot be a precedent for doing something for somebody else when the Government is merely carrying out its obligation. Mr. CORBETT. I agree with you that in this case only you are right. Yet it seems to me, and I would like to be corrected if I am wrong, we are simply paying here damage claims which were properly levied against the Mexican Government. Mr. FITZHUGH. All the claims levied against the Mexican Government, which the United States agreed to pay in return for Mexico likewise settling with its own citizens and get everything settled up. Mr. CORBETT. As it was, the offset would be to our detriment. Mr. FITZHUGH. Not at that time. Oh, no. May I just speak out of my own personal knowledge. I made a personal attempt, I will say, I was trying to collect two claims at the time the treaties were being negotiated, to adjudicate two claims against the Mexican Government directly with the Mexican Government. One is the one I have the award on and another one was a kindred one, kindred to it, for $86,000. I had all reasonable assurance of getting a satisfactory settlement out of the Mexican Government. But when this treaty was signed they took the position, "We don't have to settle with you. We settle only with the United States through the Commission when it passes on it and says we are liable." Now, what was the result. When I put those claims before the Commission, one of them for the one I have the award in was allowed. The Commission turned the other one down on a pure technicality. I think the Commission was right. I did not want to file the claim because of that fact. We were lacking a block of evidence to prove our case which was in the possession of the Mexican Government. I could not sufficiently identify the evidence so as to make a demand on the Mexican Government to produce it. Consequently, each one of the three Commissioners in their opinion said that is the reason they decided against it. The Mexican Government was about to pay me for that claim, before this convention was signed. But after the convention was signed because of a technical rule controlling the Commission, and controlling it correctly, the claim was turned down. At that time it was the understanding, it was broadcast all over the country, that now we Americans would get our money. We would not have Mexico to deal with any more. There is Mr. McDonald. Mr. McDonald was connected a long time as assistant agent of the United States before the Commission. Am I speaking facts, Mr. McDonald? Mr. McDONALD. You are. Mr. FITZHUGH. That is the way it was published all over the country. That was the method by which the United States was composing its citizens and making them harmonious to get them to drop their hostility toward Mexico. It was a step by which they were going to get their money. As Senator Pittman said, the United States assumed the entire responsibility for collecting these claims from Mexico and took them out of the citizens' hands for that purpose. Mr. JOHNSON. Mr. Chairman, in reply to the question of Mr. Corbett, I want to read this last paragraph of the report that was made. I think I made this report before, showing the foundation on which we based the liability of the Government to pay these claims. Since our Government took over the claims of our citizens for adjudication before the Commission and for settlement with Mexico, and thereby deprived the citizen of all right to make any settlement thereof otherwise, or to have any further control over it; and since this was done under an agreement which contemplated that our Government would pay the awards in favor of our citizens; and since there is now no machinery for deciding the remaining undecided claims, the committee is of the opinion that awards heretofore made on claims filed should now be paid as proposed in this bill. Mr. KEE. Judge, may I ask you a question again as to the amount of the Mexican claims decided in favor of Mexican claimants? Mr. FITZHUGH. About $431,000, approximately. Mr. KEE. Well, the United States Government has taken a credit for that? Mr. FITZHUGH. Yes. It has recognized that that is an indebtedness. Mr. KEE. We are certainly obligated to that amount. Mr. FITZHUGH. That just illustrates the truth of the position I am taking. Suppose the awards had been just the reverse? Mr. KEE. Or equal. Mr. FITZHUGH. Or equal. Mr. KEE. Yes. Mr. FITZHUGH. There would be no question of the United States paying its citizens then, would there? When this treaty was entered into it was not known which was going to owe the larger amount of money. It could not be. Consequently the obligations of the treaty are absolutely to the effect that each Government was going to pay its own citizens and everything would be balanced. That was the way they looked at it. They did not sign the treaty with any other idea because they did not know anything about what that amount was going to be. Mr. CORBETT. One point I wanted to clear up, I appreciate what Mr. Johnson explained, but I recognize in this particular instance there is nothing we can do but pay. I understand that. But what I want to know and what I would like to have your opinion on is whether or not it is not a pretty bad arrangement. Mr. FITZHUGH. A precedent? Mr. CORBETT. Yes. Mr. FITZHUGH. Sir? Mr. CORBETT. Yes. Mr. FITZHUGH. It is a duty we are talking of. Mr. JOHNSON. Mr. Corbett did not hear the precedents in detail which you mentioned before. Mr. BLOOM. Senator Sheppard explained that also, Mr. Corbett. Mr. FITZHUGH. I was going to repeat that. Here is the situation. It is different in the case of a treaty. Any treaty grows out of a special and particular situation which the very treaty covers—a peculiar and particular situation. Now, the Government enters into. such obligations by that treaty as the Government thinks are necessary to settle that particular situation. Now carrying out the obligations that the Government makes in order to settle a particular and special situation certainly cannot be any precedent binding the Government to take over obligations with reference to other situations that are entirely different. Mr. BLOOM. The Government establishes it. Mr. FITZHUGH. The Government takes care of its own obligations as each case arises according to what that case is. There is no question of precedent in a treaty. But there is a precedent for the Government to discharge the obligations of a treaty, the obligations created when the treaty was entered into. Every treaty stands on its own bottom. And this scarecrow about a precedent is nothing in the world but a manufactured scarecrow, according to my view of it. Mr. CORBETT. I think I have read perhaps 50 percent of all the Mexican claims discussed that there have been since the Civil War. I do not recall a single instance, if I read them properly, that they did not have trouble with these problems. Now, if we are going to get into a habit, simply because Mexico does not live up to the obligations of its own Government to pay these damage claims, for us to pay them, it is a pretty unwholesome situation. Mr. FITZHUGH. You see how each treaty has taken care of itself. Let me just review. The treaty of April 11, 1839, in the provisions for payment of the awards it specified that the Mexican Government would issue a customs certificate to each person in whose favor an award was made. The next treaty with Mexico was in 1843. That was the first treaty in which claims of Mexicans against the United States and Americans against Mexico was entered into. That treaty provided for the payment of claims by each Government to its citizens. Now, this treaty is just like that one in substance only it omits that specific provision. But it must have been expected that each Government would do that, just as the State Department has held. Under Secretary of State Cotton wrote here, November 7, 1929, and after quoting the settlement provision-by offsetting awards-he said: It will be noted from the foregoing that it is contemplated that each Government shall settle with its own citizens with respect to award made in their favor by the Commission. That is the view of the State Department. Last year when the Foreign Affairs Committee of the Senate was hearing bill, S. 3104, which was the same as this bill, it had two legal representatives of the State Department before it. I believe they were before this committee also. And they agreed that is the correct interpretation of the treaty. So the treaty has always been interpreted by the Government as meaning that. And likewise each |