Frelinghuysen v. United States

in accordance with the terms of that convention. The following are the facts as recited by the court, and on which the opinion is based.

On the fourth of July, 1868, a convention between the United States and the republic of Mexico, providing for the adjustment of the claims of citizens of either country against the other, was concluded, and, on the first of February, 1869, proclaimed by the president of the United States, by and with the advice and consent of the senate. By this convention (article 1)

'all claims on the part of corporations, companies, or private individuals, citizens of the United States, upon the government of the Mexican republic, arising from injuries to their persons or property by authorities of the Mexican republic, and all claims on the part of corporations, companies, or private individuals, citizens of the Mexican republic, upon the government of the United States, arising from injuries to their persons or property by authorities of the United States, which may have been presented to either government for its interposition with the other since the signature of the treaty of Guadalupe Hidalgo, * * * and which remain unsettled, as well as any other such claims which may be presented within' a specified time, were to 'be referred to two commissioners, one to be appointed by the president of the United Stat s, by and with the advice and consent of the senate, and one by the president of the Mexican republic.' Provision was then mado for the appointment of an umpire. Articles 2, 4, and 5, are as follows:

Art. 2. 'The commissioners shall then conjointly proceed to     the investigation and decision of the claims which shall be      presented to their notice, * * * but upon such evidence or      information only as shall be furnished by or on behalf of      their respective governments. They shall be bound to receive     and peruse all written documents or statements which may be      presented to them by or on behalf of their respective      governments in support of or in answer to any claim, and to      hear, if required, one person on each side, on behalf of each      government, on each and every separate claim. Should they     fail to agree in opinion upon any individual claim, they      shall call to their assistance the umpire; * * * and such      umpire, after having examined the evidence adduced for an      against the claim, and after having heard, if required, one      person on each side as aforesaid, and consulted with the      commissioners, shall decide thereupon finally, and without      appeal. * * * It shall be competent for each government to     name one person to attend the commissioners as agent on its      behalf, to present and support claims on its behalf, and to      answer swer claims made upon it, and to represent it generally in all matters connected with      the investigation and decisions thereof. The president of the     United States * * * and the president of the Mexican republic      hereby solemnly and sincerely engage to consider the decision      of the commissioners conjointly, or of the umpire, as the      case may be, as absolutely final and conclusive upon each      claim decided upon by them or him respectively, and to give      full effect to such decision without any objection, evasion,      or delay whatsoever. * * *

Art. 4. 'When decisions shall have been made by the     commissioners and the arbiter in every case which shall have      been laid before them, the total amount awarded in all the      cases decided in favor of the citizens of the one party shall      be deducted from the total amount awarded to the citizens of      the other party, and the balance, to the amount of $300,000,      shall be paid at the city of Mexico or at the city of      Washington, * * * within twelve months from the close of the      commission, to the government in favor of whose citizens the      greater amount may have been awarded, without interest. * * *     The residue of the said balance shall be paid in annual      installments to an amount not exceeding $300,000 * * * in any      one year until the whole shall have been paid.

Art. 5. 'The high contracting parties agree to consider the     result of the proceedings of this commission as a full,      perfect, and final settlement of every claim upon either      government arising out of any transaction of a date prior to      the exchange of the ratifications of the present convention;      and further engage that every such claim, whether or not the      same may have been presented to the notice of, made,      preferred, or laid before, the said commission, shall, from      and after the conclusion of the proceedings of the said      commission, be considered and treated as finally settled,      barred, and thenceforth inadmissible.' 15 St. 679.

Under this convention, commissioners were appointed, who entered on the performance of their duties. Benjamin Weil and the La Abra Silver Mining Company, citizens of the United States, presented to their government certain claims against Mexico. These claims were referred to the commissioners, and finally resulted in an award, on the first of October, 1875, in favor of Weil and against Mexico for $489,810.68, and on the twenty-seventh of December, 1875, in favor of La Abra Silver Mining Company for $683,041.32. On the adjustment of balances under the provisions of article 4 of the convention it was found that the awards against Mexico exceeded largely those against the United States, and the government of Mexico has promptly and in good faith met its annual payments, though it seems from the beginning to have desired a re-examination of the Weil and La Abra claims.

On the eighteenth of June, 1878, congress passed an act, (chapter 262, 20 St. p. 144,) sections 1 and 5 of which are as follows:

Section 1. 'That the secretary of state be, and he is hereby,     authorized and required to receive any and all moneys which      may be paid by the Mexican republic under and in pursuance of      the convention between the United States and the Mexican      republic for the adjustment of claims; * * * and, whenever      and as often as any installments shall have been paid by the      Mexican republic on account of said awards, to distribute the      moneys so received in ratable proportions among the      corporations, companies, or private individuals respectively      in whose favor awards have been made by said commissioners,      or by the umpire, or to their legal representatives or      assigns, except as in this act otherwise limited or provided,      according to the proportion which their respective awards      shall bear to the whole amount of such moneys then held by      him, and to pay the same, without other charge or deduction      than as hereinafter provided, to the parties respectively      entitled thereto. * * *

Sec. 5. 'And whereas the government of Mexico has called the     attention of the government of the United States to the      claims hereinafter named, with a view to a rehearing,      therefore, be it enacted that the president of the United      [States] be, and he is hereby, requested to investigate any      charges of fraud presented by the Mexican government as to      the cases hereinafter named; and if he shall be of the      opinion that the honor of the United States, the principles      of public law, or considerations of justice and equity      require that the awards in the cases of Benjamin Weil and La      Abra Silver Mining Company, or either of them, should be      opened and the cases retried, it shall be lawful for him to      withhold payment of said awards, or either of them, until      such case or cases shall be retried and decided in such manner as the      governments of the United States and Mexico shall agree, or      until congress shall otherwise direct. And in case of such     retrial and decision, any moneys paid or to be paid by the      republic of Mexico in respect of said awards respectively,      shall be held to abide the event, and shall be disposed of      accordingly; and the said present awards shall be set aside,      modified, or affirmed, as may be determined on such retrial:      provided that nothing herein shall be construed as an      expression of any opinion of congress in respect to the      character of said claims, or either of them.'

During the year 1879 President Hayes caused an investigation to be made of the charges of fraud presented by the Mexican government, and the conclusion he reached is thus stated in the report of Mr. Evarts, the then secretary of state:

'I conclude, therefore, that neither the principles of public     law nor considerations of justice or equity require or      permit, as between the United Stated and Mexico, that the      awards in these cases should be opened and the cases retried      before a new international tribunal or under any new      convention or negotiation respecting the same between the      United States and Mexico.

'Second. I am, however, of opinion that the matters brought     to the attention of this government on the part of Mexico do      bring into grave doubt the substantial integrity of the claim      of Benjamin Weil and the sincerity of the evidence at to the      measure of damages insisted upon and accorded in the case of      the La Abra Silver Mining Company, and that the honor of the      United States does require that these two cases should be      further investigated by the United States to ascertain      whether this government has been made the means of enforcing      against a friendly power claims of our citizens based upon or      exaggerated by fraud.

'If such further investigation should remove the doubts which     have been fairly raised upon the representations of Mexico,      the honor of the United States will have been complete y      maintained. If, on the other hand, the claimants shall fail     in removing these doubts, or they should be replaced by      certain condemnation, the honor of the United States will be      vindicated by such measures as may then be dictated.

'Third. The executive government is not furnished with the means of instituting and pursuing methods of investigation     which can coerce the production of evidence or compel the      examination of parties and witnesses. The authority for such     an investigation must proceed from congress. I would advise,     therefore, that the proofs and the conclusions you shall come      to thereon, if adverse to the immediate payment on these      awards of the installments received from Mexico, be laid      before congress for the exercise of their plenary authority      in the matter.'

This action of the president was communicated to congress under date of April 15, 1880, by his forwarding a copy of the report of the secretary of state, which concludes as follows:

'Unless congress should now make this disposition of the     matter, and furnish thereby definite instructions to the      department to reserve further payments upon these awards till      the conclusion of such investigation, and to take such      further order with the same thereafter as congress might      direct, it would appear to be the duty of the executive to      accept these awards as no longer open to reconsideration, and      proceed in the payment of the same pro rata with all other      awards under the convention.'

No definitive instructions were given by congress in respect to the matter during that session, and after the close of the session payments were made on these awards by the direction of the president the same as on the others. Another installment was paid by the Mexican government, and distributed to these claimants with the rest, during President Garfield's administration. In this way five installments were distributed. After President Arthur came into office he examined the cases further, and, 'believing that said award was obtained by fraud and perjury,' negotiated a treaty with Mexico providing for a rehearing. This treaty is now pending before the senate for ratification. On the thirty-first of January, 1882, the sixth installment was paid by Mexico to Mr. Frelinghuysen, the present secretary of state. A distribution of this installment to these claimants has been withheld by order of the president on account of the pending treaty. These suits were brought in the supreme court of the District of Columbia to obtain writs of mandamus requiring the secretary of state to pay to the several relators the amounts distributable to them respectively upon their disputed awards from the installment of 1882. The relator, Key, is the assignee of part of the Weil claim. In his case the secretary filed an answer setting up the action of President Arthur in respect to this claim and the negotiation of the new treaty. To this the relator demurred. Upon the hearing the court below sustained the demurrer and awarded a peremptory writ as prayed for.

In the case of the La Abra Company a petition substantially like that of the relator, Key, was demurred to by the secretary. Upon the hearing this demurrer was sustained and the petition dismissed. In this case, therefore, the action of President Arthur does not appear affirmatively on the face of the record, but it was conceded on the argument that it might properly be considered.

The writ of error in the Key case was brought by the secretary of state, and in the other by the La Abra Company.

''Sol. Gen. Phillips'', for Frelinghuysen, Secretary, etc.

P. Phillips, W. H. Phillips, John Goode, and R. B. Warden, for Key.

F. P. Stanton, T. W. Bartley, S. Shellabarger, and J. M. Wilson, for Mining Company,

Mr. Chief Justice Waite delivered the opinion of the court.