commission under the convention of 1839, a claim was made for $1,000, the amount of a forced loan exacted by the Mexican Government in 1836. The commissioners under the act of 1849 said: "This item was allowed by the Mexican members of the mixed commission to be valid. The board therefore decide that this item of the claim is valid, and it is allowed accordingly." Moke's Case. Moses Moke (No. 342, Am. docket) made a claim before the mixed commission under the convention of July 4, 1868, for $1,000, exacted as a "forced loan" December 21, 1864, $500 as damages for a day's imprisonment to which he was subjected "to force the loan," and $300 exacted at a "forced loan" April 2, 1865. He also claimed interest on each of the "loans." Mr. Wadsworth, on August 16, 1871, delivering the opinion of the commission, said: "The forced loans were illegal; the imprisonment was only for one day, and resulted in no actual damage to claimant or his property; but we wish to condemn the practice of forcing loans by the military, and think an award of $500 for 24 hours' imprisonment will be sufficient. While the calamitous circumstances surrounding the officers of the government and the people of Mexico at the time are entitled to much considera tion on the question of damages, nevertheless we can not too strongly condemn this arbitrary, illegal, and unequal way of supplying the wants of the military. If larger sums in damages, in such cases, were needed to vindicate the right of individuals to be exempt from such abuses, we would undoubtedly feel required to give them. The loans were paid in Mexican coin, but considering the difference in the value of the coins of the two countries, and the exchange on New York from Matamoras, it will be right to award currency. We award the sum of $2,425, and $100 as costs, etc., currency of the United States." MS. Op. II. 165. McManus's Case. After Sir Edward Thornton had succeeded Dr. Lieber as umpire, and Mr. Zamacona had become Mexican commissioner, the case of McManus Brothers (Francis McManus et al. v. Mexico, No. 348, Am. docket) came on for decision. Mr. Wadsworth, the American commissioner, rendered (MS. Op. III. 359) the following opinion: "One of the claimants has furnished us with the several decrees under which the special contributions levied on his firm were made. It appears from these decrees, very plainly, that the contributions were either levied upon all the property 5627-VOL. 4-12 of all the inhabitants of the republic, or upon all the cantons of the State of Chihuahua. The levy thus being upon all equally, is certainly lawful, and foreigners having property in the country were equally bound with citizens to pay the contribution, which was in fact only an extraordinary war tax. Claimants are in error in supposing that as the levy was made to resist the French invasion, they were therefore, as aliens, exempt from the imposition. Aliens residing in the United States during the late war were bound to pay the same taxes as the citizens of that country, whether ordinary or extraordinary. Nothing can be more just than that aliens residing in the country, and accumulating property there, by traffic or otherwise, should contribute equally with all others to its defense against its armed invader. "It is my opinion that claimants, then, can only recover here for the forced loans imposed upon them and collected. These are not only unlawful, but the government undertakes in terms to repay the money. They are contrary to the treaty of 1831 and to right, because they are not imposed upon all the inhabitants of the state in same, equal, and uniform manner, and do not profess to be taxes or contributions to the public necessities, but only temporary loans, wrung out of the unhappy wretches at the point of the bayonet. They are deplorably frequent in Mexico and are wicked beyond the power of expression, and cast a reproach upon all engaged in levying or sustaining them. Surely nations that submit to them are entitled to the praise due to patience and forbearance. Claimants should have an award for the forced loans with 12 per cent interest. In my opinion the sums of money obtained by force are the following, viz: July 11, 1865, $2,000; August 4, 1865, $1,000; March 28, 1866, $1,000; July 17, 1866, $1,000; August 1, 1866, $1,000. The loan of May 15, 1866, is subject to a credit of $539.64, repaid. I understand the sum of $2,400 exacted of Francis McManus to be included in the sum of $6,000, which the 'mint property' was compelled to pay (see affidavit of Francis McManus, paper No. 20) and which is embraced in another claim pending before this commission. I can not doubt my duty to award the foregoing sums with interest.” Mr. Zamacona (MS. Op. III. 361) said: "Upon a close examination it [the claim] appears to consist of various elements-pecuniary loans made at times to the government of the State and at others to the government of the republic; at times in the nature of taxes, at others as forced loans; some in their own name and some in the name of other people. It is perceivable from this that some of the allegations, as, for example, the payment of general taxes, can not be the subject of a claim. "But even taking the grounds of the claim altogether, there are other principles which, taken in connection with the circumstances of the case, do not permit the claimants' preten sions to be admitted. Foreigners, with regard to their local property, are subject to the laws of the country where they may reside. The acts of the authorities are presumably in accordance with the laws until it is proven that they are other wise. A diplomatic claim may be made when the claimant has been the victim of a palpable injustice when making use of his ordinary or usual remedies. When he fails to make use of such as are furnished him by the local laws, there is no ground for complaint. Now, with reference to the pecuniary payments such as those alleged to have been made by the claimants, and with regard to such as from their nature demand repayment, recent provisions of the Mexican legislation show no intention on the part of the public authorities to ignore such, but on the contrary a desire to facilitate and methodize the exercise of such a right. The holders of claims contracted during the last war for which the government is responsible have been convoked; an institution has been established for the examination of their vouchers; the time granted for their presentation has been extended several times, with a prospect that payment would follow an adjustment according to its means. Such creditors as have not responded to the call can complain of no injustice. Their ground of complaint would arise when, upon making use of the legal remedy, they should meet with any palpable act of injustice either in their adjustment or payment. "The difficulties of discussing questions such as the present before our commission and not before the board of audit established in Mexico can be seen in the present case. The com mission, as it is easy to observe by Order No. 19, is even embarrassed for the want of legal data, and as to the facts which the board of audit of the "Contaduria Mayor Mexicana" abundantly possesses. If our commission should attempt to disentangle and classify the heterogeneous mass of claims embraced in this expediente in addition to admitting a prema ture claim and assuming powers which belong to a domestic institution, it would expose itself to err for the want of means of investigating which are not within its reach. I should here repeat the considerations upon this same subject stated in my opinion of this date in case, No. 101, of Patrick Francis Ryder. I refer to them and hope that the umpire of the commission will take them into consideration. My opinion, therefore, is that, leaving the claimants' rights intact, to be made use of by them in the ordinary way, the claim in its diplomatic character be dismissed." Argument of Mr. * After these opinions were delivered Mr. Ashton, the agent and counsel of the United States, in a printed argument before the umpire in Francis Rose v. Mexico, No. 344, maintained: 1. That great weight should be given to the fact that claims on account of forced loans were allowed by the commission under the convention of April 11, 1839, the Mexican commissioners concurring with the American in the awards, and by the commissioners under the act of Congress of March 3, 1849. The forced loans allowed by those commissions "would appear to have been levied," said Mr. Ashton, "without discrimination, upon Mexicans and Americans alike, in the particular localities." 2. That while there was no "special clause" in the treaty of 1831 "in reference to forced loans nominatim," such loans came within the eighth article "upon a proper interpretation of it." If, said Mr. Ashton, money did not come within the literal signification of the word "effects" in that article, that word should be "extended by construction" so as to include it. (Vattel, Book II. Ch. XVII. sec. 290; Grotius, Book II. Ch. XVI. sec. 25; 2 Phillimore, 96; 2 Austin on Jurisprudence, 1025.) While private property might be taken for public use, compensation should be made to the individual owner. (Grotius, Book VIII. Ch. XIV. sec. 7; Pufendorf, Book VIII. Ch. V. sec. 7; Bynkershoek, Quaest. Jur. Pub. Book II. Ch. XV.; 2 Johns. Ch. 165; Const. of Mexico, 1857, lit. I. Art. 27; Blackstone's Comm. 139; Grant v. U. S., 1 Ct. of Claims, 50.) But it was unnecessary to resort to extensive interpretation. All kinds of personal property were comprehended by the "natural signification" of the eighth article. The word "ef fects" had been held in a will to be equivalent to property or worldly substance. (Hogan v. Jackson, 1 Cowper, 304; Hearne v. Wiggington, 2 Maddock's, Ch. 120; Campbell v. Prescott, 15 Ves. 499.) 3. That if money was within the eighth article, the government, when it appropriated money, became "immediately and absolutely liable" to repay it, and the individual might bring an action to recover it without a prior "express demand or applica tion for repayment." (8 Johns. Rep. 374; 5 Cowen, 516; 13 Peters, 136; 12 Geo. IV. c. 78; Grant v. U. S., 1 Ct. of Cl. 50; Johnson v. U. S., 2 id. 415; U. S. v. Klein, 13 Wall. 136; Smoot's Case, 15 Wall. 45; U. S. v. O'Keefe, 11 Wall. 179.) 4. That if forced loans were not within the eighth article, the Mexican Government would be liable for their repayment "under the settled principles of universal law applicable" to "the exercise of the right of eminent domain." (Sinneckson v. Johnson, 2 Harrison (N.J.), 129; Gardner v. Village of Newburgh, 2 Johns. ch. 165; Mitchell v. Harmony, 13 Howard, 134.) 5. That a "forced loan" was 66 a taking of money for public use in the exercise of the right of eminent domain, and not in the exercise of the power of taxation, (Cooley, Constit. Lim. 527, note; 6 Cranch, 145.) Even if the treaty of 1831 were construed, as it was understood that the umpire had construed it, as guaranteeing against a discrimination in the matter of forced loans as between citizens and foreigners, this fact would not release the state from the obligation to repay where no such discrimination was made. If this view was correct, it was unnecessary to consider whether the words "charges or contributions or taxes" in the ninth article of the treaty of 1831 included "forced loans." The words "charges or contributions" should, however, be construed as describing such as were "levied under the power of taxation, and not under the right of eminent domain." (26 Ill. 357; 12 Ill. 406; 10 Wis. 242; 4 N. Y. 419; 3 Scam. Ill. 130; 29 Ill. 494.) The umpire, Sir Edward Thornton, NovemAward of the Umpire. ber 26, 1874, delivered (MS. Op. IV. 178) the following opinion: "The case of McManus Brothers v. Mexico, No. 348, involves two claims, one for what are called in the memorial 'involuntary' contributions, and the other for forced loans, levied upon the claimants by Mexican authorities. With regard to the first of these the two commissioners appear to be agreed that the claimants are not entitled to compensation, and no observations are therefore needed from the umpire. "The second question is whether forced loans could properly be exacted from citizens of the United States by the Mexican authorities. The principal argument of the claimant is that treaty stipulations between the United States and Mexico exempt them from the payment of forced loans. The umpire, after examination of the treaties between the two countries, can find no mention of forced loans and no stipulation which accords or implies the exemption of United States citizens from their payment. “Article VIII. of the treaty of 1831 stipulates that the 'citizens of neither of the contracting parties shall be liable to any embargo.' This can not imply the nonpayment of forced loans; and further, nor shall their vessels, cargoes, merchandise, or effects be detained for any military expedition, nor for any public or private purpose whatsoever, without corresponding compensation.' If it were possible to imagine that the detention of effects' implied the payment of forced loans, these could not be exacted without corresponding compensation. But the compensation could only be either the immediate return of the money, which would be absurd, or its repayment |