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. 66 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 completely 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 fur nish 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. If we understand correctly the positions assumed by the different counsel for the relators, they are: (1) That the awards under the convention vested in the several claimants an absolute right to the amounts awarded them respectively, and that this right was property which neither the United States alone, nor the United States and Mexico together, could take away; and, (2) that, if this were not so, the action of President Hayes, under the fifth section of the act of 1878, was conclusive on President Arthur, and deprived him of any right he might otherwise have had to investigate the charges of fraud presented by the Mexican government, or to withhold from the relators their distributive shares of any moneys thereafter paid to the secretary of state under the authority of the first section. * * con 1. There is no doubt that the provisions of the convention as to the conclusiveness of the awards are as strong as language can make them. The decision of the commissioners, or the umpire, on each claim is to be "absolutely final and conclusive" and "without appeal." The president of the United States and the president of the Mexican republic are "to give full effect to such decisions, without any objection, evasion, or delay whatsoever," and the result of the proceedings of the commission is to be considered "a full, perfect, and final settlement of every claim upon either government arising out of transactions prior to the exchange of the ratifications of the vention." But this is to be construed as language used in a compact of two nations "for the adjustment of the claims of the citizens of either against the other," entered into "to increase the friendly feeling between" republics and "so to strengthen the system and principles of republican government on the American continent." No nation treats with a citizen of another nation except through his government. The treaty, when made, represents a compact between the governments, and each government holds the other responsible for everything done by their respective citizens under it. The citizens of the United States having claims against Mexico were not parties to this convention. They induced the United States to assume the responsibility of seeking redress for injuries they claimed to have sustained by the conduct of Mexico; and as a means of obtaining such redress the convention was entered into, by which not only claims of citizens of the United States against Mexico were to be adjusted and paid, but those of citizens of Mexico against the United States as well. By the terms of the compact the individual claimants could not themselves submit their claims and proofs to the commission to be passed upon. Only such claims as were presented to the governments respectively could be "referred" to the commission, and the commissioners were not allowed to investigate or decide on any evidence or information except such as was furnished by or on behalf of the governments. After all the decisions were made, and the business of the commission concluded, the total amount awarded to the citizens of one country was to be deducted from the amount awarded to the citizens of the other, and the balance only paid in money by the government in favor of whose citizens the smaller amount was awarded, and this payment was to be made, not to the citizens but to their government. Thus, while the claims of the individual citizens were to be considered by the commission in determining amounts, the whole purpose of the convention was to ascertain how much was due from one government to the other on account of the demands of their respective citizens. As between the United States and Mexico the awards are final and conclusive until set aside by agreement between the two governments, or otherwise. Mexico cannot, under the terms of the treaty, refuse to make the payments at the times agreed on if required by the United States. This she does not now seek to do. Her payments have all been made promptly as they fell due, as far as these records show. What she asks is the consent of the United States to her release from liability under the convention on account of the particular awards now in dispute, because of the alleged fraudulent character of the proof in support of the claims which the United States were induced by the claimants to furnish for the consideration of the commission. As to the right of the United States to treat with Mexico for a retrial, we entertain no doubt. Each government, when it entered into the compact under which the awards were made, relied on the honor and good faith of the other for protection as far as possible against frauds and impositions by the individual claimants. It was for this reason that all claims were excluded from the consideration of the commission, except such as should be referred by the several governments, and no evidence in support of or against a claim was to be submitted except through or by the governments. The presentation by a citizen of a fraudulent claim or false testimony for reference to the commission was an imposition on his own government, and if that government afterwards discovered that it had in this way been made. an instrument of wrong towards a friendly power, it would be not only its right, but its duty, to repudiate the act and make reparation as far as possible for the consequences of its neglect, if any there had been. International arbitration must always proceed on the highest principles of national honor and integrity. Claims presented and evidence submitted to such a tribunal must necessarily bear the impress of the entire good faith of the government from which they come, and it is not to be presumed that any government will for a moment allow itself knowingly to be made the instrument of wrong in any such proceeding. No technical rules of pleading as applied in municipal courts ought ever to be allowed to stand in the way of the national power to do what is right under all the circumstances. Every citizen who asks the intervention of his own government against another for the redress of his personal grievances must necessarily subject himself and his claim to these requirements of international comity. None of the cases cited by counsel are in opposi tion to this. They all relate to the disposition to be made of the proceeds of international awards after they have passed beyond the reach of the governments and into the hands of private parties. The language of the opinions must be construed in connection with this fact. The opinion of the attorney general in Gibbes' Case, 13 Op. 19, related to the authority of the executive officers to submit the claim of Gibbes to the second commission after it had been passed on by the first, without any new treaty between the governments to that effect, not to the power to make such a treaty. 2. The first section of the act of 1878 authorizes and requires the secretary of state to receive the moneys paid by Mexico under the convention, and to distribute them among the several claimants, but it manifests no disposition on the part of congress to encroach on the power of the president and senate to conclude another treaty with Mexico in respect to any or even all the claims allowed by the commission, if in their opinion the honor of the United States should demand it. At most, it only provides for receiving and distributing the sums paid without a protest or reservation, such as, in the opinion of the president, is entitled to further consideration. It does not undertake to set any new limits on the powers of the executive. The fifth section, as we construe it, is nothing more than an expression by congress in a formal way of its desire that the president will, before he makes any payment on the Weil or La Abra claims, investigate the charges of fraud presented by Mexico, "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, or either of them, should be opened and the cases retried," that he will "withhold payment until the case or cases shall be retried and decided in such manner as the governments of the United States and Mexico may agree, or until congress shall otherwise direct." From the beginning to the end it is, in form even, only a request from congress to the executive. This is far from making the president for the time being a quasi judicial tribunal to hear Mexico and the implicated claimants and determine once for all, as between them, whether the charges which Mexico makes have been judicially established. In our opinion, it would have been just as competent for President Hayes to have instituted the same inquiry without this request as with it, and his action, with the statute in force, is no more binding on his successor than it would have been without. But his action, as reported by him to congress, is not at all inconsistent with what has since been done by President Arthur. was of opinion that the disputed "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," and, by implication at least, he asked congress to provide him the means "of instituting and furnishing methods of investigation which can coerce the production of evidence or compel the examination of parties or witnesses." He did report officially that he had "grave doubt as to the substantial integrity of the Weil claim" and the "sincerity of the evidence as to the measure of damages insisted upon and accorded in the case of the La Abra * company." The report of Mr. Evarts cannot be read without leaving the conviction that, if the means had been afforded, the inquiries which congress asked for would have been further prosecuted. The concluding paragraph of the report is nothing more than a notification by the president that unless the means are provided, he will consider that the wishes of congress have * He |