Mr. Commissioner Frazer’s dissenting opinion
in the cases of Mrs. Sherman, No. 359, and
Mrs. Brain, No. 447. (See p. 62, ante.)
This is an international court, and the parties litigant before it are nations, not individuals.
But the treaty limits the jurisdiction of this tribunal. Not all matters of difference between the two governments have been submitted to the award of this commission, but only certain “claims on the part of” their respective citizens or subjects, against the other government. The correspondence which led to the treaty clearly shows that this means “claims of” the citizens or subjects of either government, against the other government. (Sir Edward Thornton to Secretary Fish, February 1, 1871, and Mr. Fish’s reply of February 3, 1871. See Protocol I.)
There must, then, be an individual who has a claim, and a British or American nationality, else we cannot take jurisdiction.
When the party whose person or property has suffered injury is dead, how are we to ascertain who then has such claim? The international law is silent, giving no answer to this question. It is a matter regulated by municipal law, and the law of the domicile of the deceased must be referred to to ascertain who takes the rights which he had while in life; that is to say, to ascertain who is the individual “citizen or subject” in whose behalf a claim exists after the death of the original claimant. If by the municipal law of the domicile of the deceased nobody is entitled, then by this treaty we cannot make an allowance; for we can only do that where there is an individual, British or American, who has a claim. We have no authority to create a claimant. The treaty might have provided for such cases, but it did not. It might have provided that proper damages should be awarded against our government in favor of the other, for the wrong to the nation, without reference to any question of the right of an individual to such damages, leaving the government in [Page 241] whose favor the award should be made to determine, as it might see fit, what individual if any should be benefited thereby.
The treaty of the United States with New Granada, and that with Mexico, referred to in the argument, were of this character.
Where the personal injury was to one domiciled either in the United States or Great Britain and now dead, there can be no citizen or subject entitled to make claim; because, by the laws of both countries, the right to damages is extinguished by the death of the person injured.