quires that its decisions shall be made in conformity with justice, without defining what is meant by that term. We are clearly of the opinion, that in no sense in which the term is used, would it be just for us to make an award which would require the levying of a tax on the whole present population of Venezuela to pay a claim which originated before nearly all of the oldest of them were born, and which is presented at a time when it is impossible to say whether it is well founded or not, the delay being without excuse or justification, and we accordingly reject the claim and dismiss the petition.

There are no papers in this case except the following: 1. A letter from the claimant to the Hon. W. H. Seward, dated the Albany County Lunatic Asylum, February 27, 1868.

2. A certificate of the intention of the claimant to become a citizen of the United States, which said intention was declared on the 6th day of February, 1824, and is certified to under date of the 26th of February, 1868.

3. A certificate of the naturalization of the claimant on the 28th of February, 1868.

4. An affidavit which purports to have been made by the claimant on October 9, 1867, before one P. W. Murphy, who signs himself commissioner of deeds for the city of Albany, but without any further authentication of his official character.

The ground of the claim is that Mr. O'Dwyer, by his prompt advice tendered to General Paez at a critical moment in the battle of Carabobo, saved the fortunes of the day, and enabled Venezuela to establish her independence. This is the kind of deed that usually calls for a monument or some other testimonial of national gratitude; but as mere dispensers of justice we must disallow the claim and dismiss the petition.

The expediente sets forth in substance

That in 1812 Alexander Scott, a citizen of the United States, residing in Washington, having been appointed a political agent by President Madison to proceed to Venezuela, then at war with Spain for independence, to look after the commercial and other interests of the United States in that quarter, delayed his departure from some time in March till late in May, in order to secure the aid of his country toward relieving the distress and suffering of the people of Caracas and vicinity, caused by the then recent disastrous earthquake in that part of South America; that he "obtained its consent and authority for purchasing and transporting fifty thousand dollars' worth of provisions "to the city of Caracas for the relief and sustenance of the suffering inhabitants;" that the provisions (which arrived in June and July) were gratefully received by Venezuela "with many flattering demonstrations of respect and gratitude toward " Mr. Scott; that owing to heavy personal expenses incurred during and in consequence of this service (which continued

till January, 1813) he was reduced from affluence to straitened circumstances. He died in 1839. Elizabeth B. Scott, his widow, who had accompanied him and shared the labor and privations of the undertaking, in 1855 sent her memorial, embodying these statements substantially, to the Venezuelan government, through the American legation at Caracas, asking, to use her own language, "at the hands of a highminded and honorable country such a return of reciprocal' kindness as they may think fit to bestow in view of the sacrifices made."

No sum was named either of the expenses or losses in- ' curred, or of indemnity desired. Afterwards letters from time to time were forwarded in her behalf through said legation to that government, in one of which $25,000 were suggested as a proper sum to be paid for the services rendered. The letters, while depicting in strong colors the great benefits to Venezuela of Mr. Scott's mission, and the needs of the petitioner, claimed as a consequence from his sacrifices for that country, disclose no new material fact.

This claim was presented to the former commission by the American minister at Caracas May 14, 1868. That was the first time the United States government or its agency took or was asked to take cognizance of it further than to forward matter as above stated.

To "this claim," Venezuela by her counsel demurs "upon the ground that it is based entirely on the supposed right to an exercise of gratitude by Venezuela; and does not allege any breach of contract or wrong cognizable by a tribu nal of justice—this without admitting the claim of special gratitude."

As we understand it, a "claim" within the meaning of the treaty implies a right on the one hand and an obligation on the other. It has reference to some alleged wrongful conduct of the government upon which it is made. That conduct may

have been active or passive; the government may have done what it ought not to have done, or refused or neglected to do what it ought to have done in respect to the subject-matter of the claim. And injury or damage must be alleged to have resulted from that conduct to the claimant under circumstances giving him the right under the treaty through his own government to demand, and imposing on the delinquent government the obligation to allow, indemnity therefor.

This claim is not of that character. No wrongful conduct is or can be imputed to Venezuela in respect to its subjectmatter. All she did was thankfully to receive a gift of provisions sent by the government of the United States to her people in distress. The claim, if otherwise good on the face of the papers, would be obnoxious to an objection for delay in presentation for reasons stated in No. 36. The demurrer will be sustained and the case dismissed.

It may be worth while to add a few facts about this case obtained from the public records. Having been commissioned in 1811 to go to Venezuela as agent for the Government of the United States, Mr. Scott started in March, 1812, and got as far as Baltimore, where he found there were no vessels going to Venezuela because of the then recent embargo. While thus detained in Baltimore, Congress passed the act of May 8, 1812, "for the relief of citizens of Venezuela," authorizing the President to purchase $50,000 worth of provisions and "to tender the same in the name of the Government of the United States to that of Venezuela for the relief of the citizens who have suffered by the late earthquake." He was directed by President Madison to proceed to that country in one of the vessels carrying the provisions and aid in their distribution. He was paid by the United States, as its agent, for his services, including $700 paid him while detained in Baltimore, $4,115, and thereafter employed in its service.

This claim is based upon three causes of complaint against the Venezuelan government:

1. For refusal to pay balance of salary due him as "Musical Director" of the bands of music of Caracas, in 1863, $700.

2. For alleged unlawful arrest and incarceration" in a dirty, filthy prison, for several hours," in Caracas, for failure to have his bands of music ready to play on one hour's notice "at an ecclesiastical procession," in 1863, $20,000.

3. For non-fulfilment of a contract between himself and the Secretary of State in the Department of War and Navy whereby he was "to take charge and control of the military bands of music at Caracas," &c. The contract was made, as alleged, in 1863, and its breach occurred in 1864. He claims, as of 1868, $33,600, interest and all, $24,000 of which, he says, would have been "actual profits." There is no evidence that the claimant was ever a citizen of the United States, save the declaration in his petition "that he is (February 5, 1868-time of verification) a citizen of the United States of America." It does appear, however, that, during the years 1863, 1864, and afterwards, he was a subject of His Majesty the King of Italy. If he ever took steps to become a citizen of the United States, it was, perhaps, for the purpose of claiming under the treaty of 1866.

Has the claimant then, not having been a citizen of the United States at the time of the occurrences complained of, a standing here? The question is a jurisdictional one. The