This note of the French Ministry of Foreign Affairs was forwarded
to the Department of State which, in turn, communicated it to
the Department of Justice with a view to ascertaining whether
the property held by the Alien Property Bureau of that
Department could be released to French claimants, under the
reservations and observations set forth in the note of the
Ministry of Foreign Affairs.
Under date of November 3, 1938, the Department of State has
informed this Embassy92 that a reply has been received from the
Department of Justice reading in part as follows:
“If the French Ministry’s interpretation of the previous
notes of the Paris Embassy as contained in Sections 1
and 2 of the Ministry’s note means that natives of
Alsace and Lorraine and claimants in the situation of
Paul Giraud are not to be placed in a position less
favorable than other French nationals, we are in
agreement with them.
“In order to avoid possible future misapprehensions, the
Department thinks it proper to state clearly that in the
consideration and disposition of French claims, the
Attorney General as Alien Property Custodian will be
governed by and limited to the terms of the Trading with
the Enemy Act93 as amended and
other pertinent municipal legislation. While he is very
anxious to go as far as he can to permit the State
Department to reach an accord with the French Government
with respect to the matters involved in these
negotiations, he cannot go beyond the permission
contained in this Act. In this connection it is well to
bear in mind that absolutely identical treatment of
French and American claimants is not possible under the
[Page 556]
existing
law. Section 9 (g) of the Trading
with the Enemy Act as amended permits American heirs of
Germans to recover 100 per cent of the shares of these
American heirs in the estates of Germans in the hands of
the Alien Property Custodian, even though heirs having
some other nationality are entitled to only 80 per cent.
However, the rights of French and American claimants are
identical under Section 9 (n),
adopted in 1928, under which purchasers of securities
assigned alter seizure are entitled to 80 per cent
thereof.
“The additional claimants named by the Ministry of
Foreign Affairs as not having been included in the list
previously submitted to the Ministry, will receive the
full advantages of the proposed agreement upon the
filing of proper claims on their behalf with the
Attorney General if this has not already been done.
“Furthermore, there would appear to be no difficulty in
adopting the specification of the Ministry that in the
event that a claimant is unable to produce the original
documents to prove title, other proof shall be accepted.
In like manner, the Government of the United States may
adopt the proposal that the attestation of the competent
French authorities be accepted as proof of
nationality.
“Finally, the French Government now makes the following
suggestion:
“‘Finally, in order to facilitate the application
of the agreement, and to permit the Office of
Private Property and Interests to obtain the
execution of contracts which it concluded several
years ago with those interested, it appears
indispensable that, after proof of nationality and
rights of ownership, each of the two organizations
which have charge of the restitution of
sequestrated property shall receive the dossiers,
funds and securities belonging to their
nationals.’
“This suggestion has been the subject of careful
examination. It is not possible under the laws of the
United States to accede fully to the French Government’s
proposal. Under the Trading with the Enemy Act, the
President is permitted to order the return of property
or payment of the proceeds only to the person who was
the owner thereof at the time of seizure, or to his
legal representatives. Moreover, assignments or
transfers of claims against the Government of the United
States are void under the law.
“It must be observed, however, that the suggestion is
made only ‘in order to facilitate the application of the
agreement and permit the Office to obtain the execution
of the contracts which it concluded several years
previously’. It is accordingly believed that it will be
possible to satisfy the French suggestion in principle.
An examination of the terms of several of the contracts
of cession from the claimants to the Office of Private
Property and Interests, as already submitted by that
Office, discloses that they can be treated as powers of
attorney. Where the cessions are susceptible of that
interpretation, the Attorney General can recognize the
appropriate agency of the French Government as attorney
in fact for the claimant and will make payment to it as
such attorney. Should there be cases in which the
contract of cession is not susceptible of such
interpretation, it would appear that in virtue of the
contract the Office of Private Property and Interests
will be able to procure suitable powers of attorney.
[Page 557]
“As regards claims in which the claimants have not
entered into such contracts with the Office, and have
not or do not appoint the Office as their attorney in
fact, the Attorney General will be obliged to deal
directly with the claimants or their present attorneys
in fact.
“It might be observed to the French Government that in
some of the cases the claimants, before entering into
relations with the Office of Private Property and
Interests, had appointed private persons in the United
States as attorneys in fact. These attorneys have in
many instances expended money and time in obtaining
evidence and submitting it to the Alien Property Bureau.
While it is the claimant who is personally responsible
for these expenses and for the expected fees lost by
reason of any revocation by the claimant of the
attorney’s appointment and the appointment of the Office
as his representative, nevertheless it would appear that
the interests of these private attorneys should not be
prejudiced.
“It will be impossible to accept the proposal for an
exchange of ‘dossiers, funds and securities’ belonging
to the claimants. The suggestion is somewhat ambiguous
because it is not clear whether the suggestion means
that all dossiers, funds and securities shall be turned
over simultaneously and in a lump sum after proof of all
the claims is made, or whether these are to be turned
over as each individual case is decided. However, it
does seem that the suggestion is that we shall turn over
to the French Government as an administrative agency the
dossiers, funds and securities. The word ‘dossiers’ in
this connection seems to refer to our files. The law
does not permit the Department to surrender its files in
any event, and under the Trading with the Enemy Act the
only way in which funds and securities can be turned
over to the French Government is as attorney in fact for
the individual claimants, and then only as each case is
decided on its merits. In order that there should be no
unnecessary delay in payments, these claims would be
handled as expeditiously as possible, and payment in
each case where it is proper to be made would be
promptly forthcoming as soon as a determmation had been
reached therein.”
This Embassy is informed that, after careful examination, the
Department of State feels that the opinion of the Attorney
General as set forth above regarding the points brought forward
in the note received by the Embassy from the French Ministry of
Foreign Affairs on July 18, 1938, is reasonable, and one which
should remove any remaining doubts as to the conditions on which
the property held by the Alien Property Bureau will be released.
If the above opinion is acceptable to the French Government, as
my Government feels that it will be, the Secretary of State will
make the certification to the Attorney General required by
section 9 (e) of the Trading with the
Enemy Act as amended, as soon as the French Government notifies
my Government of its acceptance and of the date upon which the
arrangement comes into force.
