The Commissioners appointed under the Treaty between the United
States and Mexico concluded July 4, 1868, and proclaimed February
1, 1869, (15 Stat. 679), having differed in opinion as to the
allowance of the claim of the La Abra Silver Mining Company, a New
York corporation, against Mexico, the Umpire decided for that
company and allowed its claim, amounting, principal and interest,
to the sum of $683,041.32. Mexico met some of the installments of
the award and then laid before the United States certain newly
discovered evidence which, it contended, showed that the entire
claim of the La Abra Company was fictitious and fraudulent. The
Secretary of State thereafter withheld the remaining installments
paid by Mexico, and upon examining the new evidence, reported to
the President that, in his judgment, the honor of the United States
was concerned to inquire whether, in submitting the La Abra claim
to the Commission, its confidence had not been seriously abused,
and recommended that Congress exert its plenary authority in
respect
Page 175 U. S. 424
of the disposition of the balance of the funds received from
Mexico and remaining in the hands of the United States. Finally,
Congress passed the Act of December 28, 1892 (27 Stat. 409, c. 14),
by which the Attorney General was directed to bring suit in the
name of the United States in the Court of Claims against the La
Abra Company and all persons asserting any interest in the award of
the Commission to determine whether that award was obtained, as to
the whole sum included therein or as to any part thereof, by fraud
effectuated by means of false swearing or other false and
fraudulent practices on the part of the company or its agents,
attorneys or assigns, and if so determined, to bar and foreclose
all claim in law or equity on the part of the company, its legal
representatives or assigns to the money or any such part thereof
received from the Republic of Mexico for or on account of the
award. By that act, full jurisdiction was conferred on the Court of
Claims, with right of appeal to this Court, to determine such suit,
to make all proper interlocutory and final decrees therein, and to
enforce the same by injunction or other final process. The act
further authorized the return to Mexico of any moneys paid by it on
the award and remaining in the custody of the United States if the
issue of fraud was determined adversely to the company. If the
decision was favorable to the company, it was made the duty of the
Secretary of State to proceed with the distribution of the funds in
his bands. The act of 1892 was presented to the President on
December 20. Two days thereafter, Congress took a recess until
January 4, 1893. The President signed the bill on December 28,
1892.
Held:
(1) That the act of 1892 was not invalid by reason of its having
been signed during a recess of Congress. Whether the President can
sign a bill after the final adjournment of Congress for the session
was not decided.
(2) The suit brought by the Attorney General involved rights
capable of judicial determination and was a "case" within the
meaning of the clause of the Constitution extending the judicial
power of the United States to all cases in law and equity arising
under that instrument, the laws of the United States, and the
treaties made by it or under its authority. The act did not in any
wise trench upon the constitutional functions of the President. Nor
was it simply ancillary or advisory to him. Whatever decree was
rendered by the Court of Claims was, unless reversed, binding and
conclusive upon the United States and the defendants.
(3) The act was not liable to the objection that it was
inconsistent with the principles underlying international
arbitration. On the contrary, such legislation is an assurance in
the most solemn and binding form that the government of this
country will exert all the power it possesses to enforce good faith
upon the part of citizens who, asserting that they have been
wronged by the authorities of another country, seek the
intervention of their government to obtain redress.
(4) This Court was entitled to look at all the evidence in the
cause on
Page 175 U. S. 425
the issue as to fraud, because the act did not contemplate a
special finding by the Court of Claims of the ultimate facts
established by the evidence.
(5) The question stated in the act of 1892 -- whether the award
in question
"was obtained as to the whole sum included therein, or as to any
part thereof, by fraud effectuated by means of false swearing or
other false and fraudulent practices on the part of the said La
Abra Silver Mining Company, or its agents, attorneys or
assigns"
is answered in the affirmative as to the whole sum included in
the award.
The questions involved in this case arise from a claim made by
the La Abra Silver Mining Company, a New York corporation, for
damages alleged to have been sustained in consequence of certain
acts and omissions of duty upon the part of official
representatives of the Republic of Mexico.
The claim was originally the subject of investigation by a
commission organized pursuant to a convention between the United
States of America and the Republic of Mexico concluded July 4,
1868, and proclaimed February 1, 1869. 15 Stat. 679.
An award was made by the Commission in relation to this claim,
but it has been executed only in part -- its full execution having
been suspended by legislation in conformity with which the present
suit was instituted to ascertain whether the award had been
obtained by fraud effectuated by means of false swearing or other
false and fraudulent practices on the part of the La Abra Company,
its agents, attorneys, or assigns. 27 Stat. 409, c. 14.
It will conduce to a clear understanding of the questions to be
determined if we state fully the circumstances that led to the
organization of the commission, and show how it came about that a
court established by this government took cognizance of a moneyed
demand made by an American corporation against a foreign
government.
By the above convention of July 4, 1868, it was provided that
all claims on the part of corporations, companies, or private
individuals, citizens of the United States or of the Republic of
Mexico, arising from injuries to their persons or property
committed by the authorities of the respective governments
Page 175 U. S. 426
and presented to either government for its interposition with
the other since the treaty of Guadalupe Hidalgo of February 2,
1848, and which remained unsettled or did not arise out of any
transaction prior to that date, as well as any other claims
presented within the time prescribed in the convention, should be
referred to two commissioners -- one to be appointed by the
President of the United States by and with the advice and consent
of the Senate and the other by the president of the Mexican
Republic.
The commissioners were conjointly to investigate and decide the
claims presented to their notice in such order and manner as they
thought proper, but "upon such evidence or information only" as
should "be furnished by or on behalf of their respective
governments." Where they failed to agree in opinion upon any
individual claim, they were to call to their assistance an Umpire,
who was to decide upon it finally and without appeal. It was
competent for each government to name one person to attend the
commissioners as its agent, to present and support claims on its
behalf, and to represent it generally in all matters connected with
the investigation.
When every case presented had been decided by the commissioners
or the Umpire, the total amount awarded in favor of the citizens of
one government was to be deducted from that awarded to the citizens
of the other government, and the balance, to the amount of
$300,000, was to be paid to the government in favor of whose
citizens the greater sum had been awarded, without interest or any
other deduction than that specified in the convention. The residue
was to be paid in annual installments not to exceed $300,000 in any
one year, until the whole amount had been paid.
The contracting parties agreed to consider the result of the
proceedings of the commission as a full, perfect, and final
settlement of every claim upon either government, arising out of
any transaction of a date prior to ratification of the convention,
and to give full effect to the decision of the commission or the
Umpire without objection, evasion, or delay, and they further
engaged that every such claim, whether or not
Page 175 U. S. 427
presented to the notice of, made, preferred, or laid before the
commission, should from and after the conclusion of its proceedings
be considered and treated as finally settled, barred, and
thereafter inadmissible.
The commission was organized in the City of Washington, and held
its first meeting on the 31st day of July, 1869, Mr. William H.
Wadsworth and Senor Don Miguel Maria de Zamacona being the
commissioners respectively, and Mr. J. Hubley Ashton and Mr. Caleb
Cushing, the agents respectively, on behalf of the United States
and Mexico. Dr. Francis Lieber, the first Umpire, having died, he
was succeeded by Sir Edward Thornton, who at that time was the
British minister accredited to the government of the United States
at Washington.
On the 23d day of February, 1870, Secretary Fish issued a
circular referring to the convention of 1868 and stating that the
Department of State deemed it advisable to refer to the joint
commission all claims of corporations and citizens of this country
without special examination of their merits. He took care to say
that the government thereby expressed no opinion either as to the
merits of the claims presented or as to the principles of law to be
invoked in their support. The responsibility of deciding questions
of fact and law, he observed, rested with the commissioners.
On the 17th day of March, 1870, the La Abra Company gave written
notice to the Secretary of State that it claimed from Mexico
$1,930,000
"for damages and losses suffered by it in consequence of the
violence and outrages committed by the authorities of Mexico
against the rights of said company in 1867 and 1868."
It asked for the interposition of the government of the United
States with Mexico for the payment of that demand, and requested
that its claim and proofs thereafter to be produced be referred to
the commission for settlement. This notice was transmitted by the
Secretary to the commission.
Subsequently, June 14, 1870, the company filed with the
commission a memorial of its claim, stating the amount thereof to
be $3,000,030. Before the case was finally heard, the claim was
increased to $3,962,000.
Page 175 U. S. 428
The period within which the commission was to conclude its
labors was from time to time extended by the two governments. Of
the claims presented by the United States, there was allowed the
sum of $4,125,622.30, while of the claims presented by Mexico, the
sum of $150,498.41 was allowed.
In respect of the claim of the La Abra Company, the
commissioners differed in opinion, and the case went to the Umpire
for consideration.
The award of the Umpire, which was made December 27, 1875,
embraced the following items as representing the damages sustained
by the La Abra Company and to be paid by the Republic of Mexico:
(1) on account of subscriptions and sales of stock, $235,000; (2)
money lent and advanced, $64,291.06; (3) rent, expenses, salaries,
law expenses, $42,500: (4) amount derived from reduced ores,
$17,000; (5) ore extracted from the mines and deposited at the
mills, $100,000; in all, $458,791.06. On $358,791.06, the aggregate
of the first four items, the Umpire allowed interest from March 20,
1868 at six percent, and upon $100,000, the fifth item, interest
was allowed from March 20, 1869. The total amount of principal and
interest allowed was $683,041.32.
An application was made to the Umpire by the government of
Mexico for a rehearing of the case, but a rehearing was denied.
Subsequently, the Mexican government, without at all disputing
its obligation under the convention of 1868 to comply with the
award, placed in the possession of the Secretary of the United
States certain books, papers, and documents which it alleged had
been then recently discovered and would show that the claim of the
La Abra Company was not only fictitious and fraudulent, but had
been supported by false and perjured testimony. At that time, a
large part of the sum awarded to the company had been paid by
Mexico and was in the hands of the Secretary of State. The
distribution of the amount received had been delayed by the
Secretary, acting under the orders of the President, to await
legislation deemed necessary in order to make good to the fund the
amount with which it was chargeable, and
Page 175 U. S. 429
also because, as stated by the Secretary, it was desirable that
the form and manner of the reservation from the installment in hand
of the expenses of the government should first be settled.
These difficulties were met by the passage of the Act of June
18, 1878. 20 Stat. 144, c. 262.
By the first section of that act, the Secretary of State was
authorized and required to receive all moneys paid by the Mexican
Republic under and in pursuance of the conventions of July 4, 1868,
and April 29, 1876, and whenever and as often as any installments
should be paid by the Mexican Republic, to distribute the moneys
received in ratable proportions among the corporations, companies,
or private individuals respectively in whose favor awards were made
or to their legal representatives or assigns, except as in that act
otherwise limited or provided, according to the proportion which
the respective awards should bear
"to the whole amount of such moneys then held by him, and to pay
the same, without other charge or deduction than is hereinafter
provided, to the parties respectively entitled thereto."
By the second section, it was provided that
"out of any moneys in the Treasury not otherwise appropriated, a
sufficient sum is hereby appropriated to enable the Secretary of
the Treasury to pay to the Secretary of the United States, in gold
or its equivalent, the equivalent of fifty thousand five hundred
and twenty-eight dollars and fifty-seven cents in Mexican gold
dollars, and ten thousand five hundred and fifty-nine dollars and
sixty-seven cents in American gold coin, and eighty-nine thousand
four hundred and ten dollars and seventeen cents in United States
currency, said sums being the aggregate in said currencies
respectively of the awards made under the said convention of July
4, 1868, in favor of citizens of the Mexican Republic against the
United States, and having been deducted from the amount awarded in
favor of the citizens of the United States, and payable by Mexico,
in accordance with article four of the said treaty, and that said
sums, when paid to the Secretary of State as aforesaid, shall be
regarded as part of the awards made under the said treaty, to be
paid or distributed as herein provided. "
Page 175 U. S. 430
The third section made provision for meeting out of the moneys
received by the Secretary the expenses of the commission, including
contingent expenses paid by the United States as ascertained and
determined in pursuance of the provisions of the treaty.
The fourth section provided that, in the payment of money in
virtue of the act to any corporation, company, or private
individual, the Secretary of State should first deduct and retain
or make reservation of such sums, if any, as might be due to the
United States from any corporation, company, or private individual
in whose favor awards were made under the convention.
The fifth section of the act was in these words:
"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, by, 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 may 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."
20 Stat. 144, c. 262.
Pursuant to the direction of President Hayes, the
investigation
Page 175 U. S. 431
required by the fifth section of the Act of July 4, 1878, was
made by the Secretary of State.
Having reviewed all the proceedings of the commission, including
the testimony originally submitted to it, the supplemental evidence
furnished in support of the allegations of fraud as to the Weil and
La Abra claims, and the action theretofore taken by the Department
of State, Secretary Evarts referred to the contention that, in
deciding against opening those awards diplomatically and
reexamining them by a new international commission, the whole
discretion vested in the Executive as a part of the treatymaking
power and under the special provisions of the act of Congress was
exhausted, and that the payments in the cases referred to should be
no longer suspended. He said that a solicitous attention to the
rights of the claimants and the duty of the Executive in the
premises had confirmed him in the opinion that Congress should
determine whether "the honor of the United States" required any
further investigation in these cases or either of them, and provide
the efficient means of such investigation, if thought
necessary.
After stating the considerations which led him to that
conclusion, the Secretary proceeded:
"While these considerations led to the conclusion that these
cases ought not to be made the subject of a new international
commission, I was yet of opinion that 'the honor of the United
States' was concerned to inquire whether, in these cases, submitted
by this government to the commission, its confidence had been
seriously abused, and the government of Mexico, acting in good
faith in accepting a friendly arbitration, had been subjected to
heavy pecuniary imposition by fraud and perjury in the maintenance
of these claims, or either of them, before the commission. In
furtherance, however, of this opinion, it seemed to me apparent
that the Executive discretion under the act of Congress could
extend no further than to withhold further payments on the awards
until Congress should, by its plenary authority, decide whether
such an investigation should be made, and should provide an
adequate procedure for its conduct and prescribe the consequences
which should follow
Page 175 U. S. 432
from its results. 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."
Senate Ex.Doc. No. 150, 49th Cong., 2d Sess.
The suggestions of the Secretary having been approved by the
President, the first, second, and third installments of the award
received from Mexico on account of the claim of the La Abra
Company, amounting to $138,565.52, were paid to the representatives
of that company. Payments were subsequently made out of moneys
received from Mexico, amounting to $103,117.54, leaving in the
possession of the United States on account of the award
$403,030.08.
After Mr. Arthur became President, further distribution of the
money received was suspended because of the negotiation of a treaty
between the United States and Mexico for a reexamination of the
Weil and La Abra cases. This treaty was signed on the 13th day of
July, 1882, and was submitted to the Senate for its approval, but
after some delay, it was rejected by that body.
While that treaty was before the Senate, Key, as assignee of
part of the Weil claim, and the La Abra Company filed separate
petitions in the Supreme Court of the District of Columbia for a
mandamus upon the Secretary of State compelling him to pay to the
petitioners their distributive shares of the sums paid by Mexico in
accordance with the terms of the convention of July 4, 1868. In
Key's case, the writ asked for was awarded, while in the La Abra
case the petition was dismissed. The cases having been brought to
this Court, the judgment in the Key case was reversed with
direction to dismiss the petition and the judgment in the La Abra
case was affirmed.
Frelinghuysen v. Key, 110 U. S.
63.
Chief Justice Waite, delivering the judgment of this Court,
Page 175 U. S. 433
said:
"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. "
Page 175 U. S. 434
"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
opposition 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."
Frelinghuysen v. Key, 110 U. S. 63,
110 U. S.
71-73.
Referring to the act of 1878, and observing that it did not
Page 175 U. S. 435
undertake to set any new limits on the powers of the Executive,
the Court further said:
"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. He 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 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 been met, and that he will act on such evidence as he has been
able to obtain without the help he wants. From the statements in
the answer of Secretary Frelinghuysen in the Key case, it appears
that further evidence has been found, and that President Arthur,
upon this and what was before President Hayes, has become satisfied
that the contested decisions should be opened and the claims
retried. Consequently, the President,
Page 175 U. S. 436
believing that the honor of the United States demands it, has
negotiated a new treaty providing for such a reexamination of the
claims, and submitted it to the Senate for ratification. Under
these circumstances, it is, in our opinion, clearly within the
discretion of the President to withhold all further payments to the
relators until the diplomatic negotiations between the two
governments on the subject are finally concluded. That discretion
of the Executive Department of the government cannot be controlled
by the Judiciary. The United States, when they assumed the
responsibility of presenting the claims of their citizens to Mexico
for payment, entered into no contract obligations with the
claimants to assume their frauds and to collect on their account
all that, by their imposition of false testimony, might be given in
the awards of the commission. As between the United States and the
claimants, the honesty of the claims is always open to inquiry for
the purpose of fair dealing with the government against which,
through the United States, a claim has been made.
Frelinghuysen v. Key, 110 U. S. 63,
110 U. S.
74-76.
After the rejection of the treaty negotiated in 1882, President
Cleveland, in 1886, sent a message to the Senate calling attention
to the act of 1878 and asking consideration of the status of the
Weil and La Abra claims. By that message, Congress was in substance
notified that if it did not take some action in the matter, the
President would proceed to distribute the funds received from
Mexico under the award and remaining in the hands of the United
States. The matter having been referred to the Senate committee on
foreign relations, it recommended the passage of a bill providing
for a reinvestigation of those claims. The committee's report on
the subject thus concluded:
"This brief resume of the correspondence between the two
governments shows that Mexico, while observing, in good faith, all
her obligations under the convention, has earnestly and constantly
urged upon the United States that these claims were fraudulent.
This appeal to the spirit of justice cannot be ignored, but should
be met by a frank and open examination by our own courts of the
facts presented by Mexico. These claimants have no vested
rights
Page 175 U. S. 437
growing out of these claims which entitle them to come between
Mexico and the United States and to demand the payment of any part
of these awards that are the outgrowth of fraud and perjury."
Senate Doc. Report No. 2705, p. v. 50th Cong., 2d Sess.
No action having been taken by Congress, the subject was again
mentioned in a message sent by the President to the Senate on the
5th of March, 1888, in response to resolutions of that body. The
message was accompanied by a report from Mr. Bayard, Secretary of
State, in which reference was made to the action of his
predecessor. He said:
"It is fair to assume that the rejection by the Senate of the
treaty signed by Mr. Frelinghuysen, for an international rehearing
of the awards, was in no sense an expression of opinion adverse to
their investigation, which Mr. Evarts had recommended. It is rather
to be regarded as an approval of the opinion which he also
expressed, that the investigation should, under the circumstances,
be made by this government for itself, as a matter affecting solely
its own honor. It is a remarkable fact that whenever since the
distribution of the Mexican fund was commenced the deliberate
judgment of the official authorized by Congress to make such
distribution has been recorded upon the two awards in question, it
has uniformly been to the effect that the evidences that the United
States, in presenting the claims, had been made the victim of
fraudulent imposition were of such a character as to require
investigation by a competent tribunal, possessing appropriate
powers for that purpose. . . . The sole question now presented for
the decision of this government is whether the United States will
enforce an award upon which the gravest doubts have been cast by
its own officers in opinions rendered under express legislative
direction, until some competent investigation shall have shown such
doubts to be unfounded, or until that branch of the government
competent to provide for such investigation shall have decided that
there is no ground therefor."
Senate Doc. Report No. 2705, 50th Cong., 2d Sess. The Secretary
recommended that Congress take action providing expressly for the
reference of the Weil and La Abra claims to the Court of
Page 175 U. S. 438
Claims or such other court as was deemed proper, in order that a
competent investigation of the charges of fraud might be made.
Pending the consideration of this matter in the Senate, the
committee on foreign relations examined the evidence alleged to
have been discovered by Mexico after the award in question --
especially certain letters and copies of letters of the officers
and agents of the La Abra Company contained in a letter-impression
book that was not before the commission. The committee in their
report to the Senate on March 1, 1889, among other things,
said:
"The main allegation in the petition of the La Abra Company
presented to the mixed commission, to-wit, that the company was
dispossessed of its property by the forcible interference of the
Mexican authorities, is disproved and shown to have been wholly
false, and this mainly by the correspondence of the company's own
officers and agents, and it appears by the testimony taken by the
committee that the abandonment of the property and the failure of
the company were wholly due to the poverty of the mines and the
consequent financial embarrassment of the company."
After reviewing, in the light of precedent and upon principle,
the question of the power of Congress to order a reexamination of
the La Abra claim, the committee concluded its report to the
Senate:
"It thus appears that the power of Congress to reopen the La
Abra award, and to direct a suit to be brought to judicially
determine whether or not it was procured by fraud, has been
affirmed by successive Secretaries of State, assumed by Congress in
the passage of the Act of June 18, 1878, expressly declared by
committees of both houses of Congress, and substantially held to
exist by the highest judicial tribunal of this government."
Senate Doc. Report No. 2705, 50th Cong., 2d Sess.
Reference should here be made to
United States ex Rel.
Boynton v. Blaine, 139 U. S. 306,
139 U. S.
323-326, as announcing principles that affect certain
questions arising in the present litigation. That case was
commenced on the 23d day of November, 1889, in the Supreme Court of
the District of Columbia. Boynton, the relator, as assignee of
Weil, sought to
Page 175 U. S. 439
compel the Secretary of State to pay certain moneys received
under the award made pursuant to the convention of 1868. The
mandamus asked for was refused, and the petition of Boynton was
dismissed. That judgment was affirmed by this Court. The present
Chief Justice, delivering the unanimous judgment of the Court,
declared its adherence to the principles announced in
Frelinghuysen v. Key, above cited, and, among other
things, said:
"As between nations, the proprietary right in respect to those
things belonging to private individuals or bodies corporate within
a nation's territorial limits is absolute, and the rights of Weil
cannot be regarded as distinct from those of his government. The
government assumed the responsibility of presenting his claim, and
made it its own in seeking redress in respect to it. Under this
convention, it was the balance that was to be paid, after deducting
from what was found in favor of one government that which was found
in favor of the other. So that the moneys paid in liquidation of
that balance belonged to the United States, to be increased by
appropriation to the extent of the amounts allowed Mexico, and the
aggregate to be distributed to the claimants as might be
provided."
Again:
"Congress, in furnishing the auxiliary legislation needed to
carry the results of the convention under consideration into
effect, requested the President to so far investigate certain
charges of fraud as to determine whether a retrial ought to be had.
This inquiry might have resulted in reopening the awards as between
the two nations, or in such reexamination in a domestic forum as
would demonstrate whether the honor of the United States required a
different disposition of the particular amounts in question. The
validity and conclusiveness of the awards remained unimpugned so
long as they were permitted to stand, and the principle of
res
judicata could not be invoked against the United States by
individual claimants while the controversy raised as to them
remained
in fieri. In
Frelinghuysen v. Key, while
conceding the essential value of international arbitration to be
dependent upon the certainty and finality of the decision, the
court adjudged that this government need not therefore close its
doors against an investigation into the question whether its
Page 175 U. S. 440
influence has been lent in favor of a fraudulent claim. It was
held that no applicable rule was so rigid as not to be sufficiently
flexible to do justice, and that the extent and character of any
obligation to individuals, growing out of a treaty, an award, and
the receipt of money thereon were necessarily subject to such
modification as circumstances might require. So long as the
political branch of the government had not lost its control over
the subject matter by final action, the claimant was not in a
position, as between himself and his government, to insist on the
conclusiveness of the award as to him. And while it is true that,
for the disposition of the case of
Frelinghuysen v. Key,
it was sufficient that it appeared that diplomatic negotiations
were pending, which, as the court demonstrated, the act of 1878 in
no manner circumscribed, it does not follow that the political
department of the government lost its control because those
negotiations failed. On the contrary, that control was expressly
reserved, for it was made the duty of the President, if of opinion
that the cases named should be retried, to withhold payment until
such retrial could be had in an international tribunal, if the two
governments so agreed, or in a domestic tribunal if Congress so
directed, and at all events, until Congress should otherwise
direct. The fact that a difference of view as to whether the
retrial should be international or domestic may have arisen and led
to delay, or that such difference may have existed on the merits,
does not affect the conclusion. The inaction by Congress is not
equivalent to a direction by Congress. The political department has
not parted with its power over the matter, and the intervention of
the judicial department cannot now be invoked."
This brings us in the orderly statement of the history of this
dispute to the Act of December 28, 1892, amending and enlarging the
above Act of June 18, 1878. 27 Stat. 409, c. 14.
That statute recited that the Secretary of State, after
investigating the charge of fraud presented by the Mexican
government as to the case of the La Abra Silver Mining Company, had
reported that the honor of the United States required that case to
be further investigated by the United States to ascertain
Page 175 U. S. 441
whether this government had enforced against a friendly power
claims of its citizens based upon or exaggerated by fraud, but that
the executive branch of the government
"was not furnished with the means of instituting and pursuing
methods of investigation which could coerce the production of
evidence or compel the examination of parties and witnesses,"
that "the authority for such an investigation must proceed from
Congress," and that the President of the United States had
transmitted to Congress the recommendation of the Secretary of
State that the case be referred to the Court of Claims or such
other court as might be deemed proper in order that the charge of
fraud made in relation to this claim might be fully investigated.
It was therefore enacted:
"That in further execution of the purpose of said act, the
Attorney General of the United States be, and he is hereby,
authorized and directed to bring a suit or suits in the name of the
United States in the Court of Claims against La Abra Silver Mining
Company, its successors and assigns, and all persons making any
claim to the award or any part thereof in this act mentioned, to
determine whether the award made by the United States and Mexican
mixed commission in respect to the claim of the said La Abra Silver
Mining Company was obtained, as to the whole sum included therein
or as to any part thereof, by fraud effectuated by means of false
swearing or other false and fraudulent practices on the part of the
said La Abra Silver Mining Company or its agents, attorneys, or
assigns; and, in case it be so determined, to bar and foreclose all
claim in law or equity on the part of said La Abra Silver Mining
Company, its legal representatives or assigns, to the money, or any
such part thereof, received from the Republic of Mexico for or on
account of such award, and any defendant to such suit who cannot be
found in the District of Columbia shall be notified and required to
appear in such suit by publication as the court may direct, in
accordance with law, as applicable to cases in equity."
"SEC. 2. That full jurisdiction is hereby conferred on the Court
of Claims to hear and determine such suit and to make all
interlocutory and final decrees therein as the evidence may
Page 175 U. S. 442
warrant according to the principles of equity and justice, and
to enforce the same by injunction or any proper final process, and
in all respects to proceed in said cause according to law and the
rules of said court so far as the same are applicable. And the
Secretary of State shall certify to the said court copies of all
proofs admitted by the said mixed commission on the original trial
of said claim, and the said court shall receive and consider the
same in connection with such competent evidence as may be offered
by either party to said suit."
"SEC. 3. That an appeal from any final decision in such cause to
the Supreme Court of the United States may be taken by either party
within ninety days from the rendition of such final decree, under
the rules of practice which govern appeals from said court, and the
Supreme Court of the United States is hereby authorized to take
jurisdiction thereof and decide the same."
"SEC. 4. That in case it shall be finally adjudged in said cause
that the award made by said mixed commission, so far as it relates
to the claim of La Abra Silver Mining Company, was obtained through
fraud effectuated by means of false swearing or other false and
fraudulent practices of said company or its assigns, or by their
procurement, and that the said La Abra Silver Mining Company, its
legal representatives or assigns, be barred and foreclosed of all
claim to the money or any part thereof so paid by the Republic of
Mexico for or on account of such award, the President of the United
States is hereby authorized to return to said government any money
paid by the government of Mexico, on account of said award,
remaining in the custody of the United States, that has not been
heretofore distributed to said La Abra Mining Company or its
successors and assigns, which such court shall decide that such
persons are not entitled, in justice and equity, to receive out of
said fund."
"SEC. 5. That during the pendency of said suit and until the
same is decided, it shall not be lawful for the Secretary of State
to make any further payments out of said fund, on account of said
award, to La Abra Silver Mining Company,
Page 175 U. S. 443
or its legal representatives, attorneys, or assigns, and in case
it shall be finally adjudged in said cause in either the Court of
Claims or in the Supreme Court of the United States that the award
made by said mixed commission, so far as it relates to the claim of
La Abra Silver Mining Company or any definable and severable part
thereof, was not obtained through fraud as aforesaid, then the
Secretary of State shall proceed to distribute so much of the said
award as shall be found not so obtained through fraud, or the
proceeds thereof remaining for distribution, if any, to the persons
entitled thereto."
27 Stat. 409, c. 14.
Pursuant to the provisions of that act, the Attorney General
brought the present suit in the Court of Claims. The defendants are
the La Abra Company and numerous individuals who assert some
interest in the award made in respect of its claim against Mexico.
The relief asked by the United States is indicated by the following
paragraph in the bill:
"Your orator further shows that by reason of the premises, a
controversy has arisen between your orator and the defendants
hereinbefore named, the said defendants claiming that it is the
duty of your orator to pay over to them the sums by them, the said
defendants, claimed respectively from the proceeds of said award
now in the possession of your orator, and your orator claiming that
it is the right and duty of your orator to have the facts relating
to said claim and award inquired of by your honorable court, and if
it shall be adjudged by your honorable court that the said award
was obtained through fraud effectuated by means of false swearing
or other false and fraudulent practices on the part of the said
defendant La Abra Silver Mining Company, or its agents, attorneys,
or assigns, to return the proceeds of said award to the said
Republic of Mexico; that the said defendants have made persistent
demands upon the Department of State and upon the Congress of your
orator for the payment to them of said moneys, and that some of the
said defendants have brought suits in the courts of your orator to
compel such payment, and that, unless restrained by the judgment
and decree of this honorable court, the said defendants will
continue to
Page 175 U. S. 444
harass and annoy your orator with such demands and suits. . . .
And that the said defendants and each and every of them may, by the
decree of this honorable court, be forever restrained and enjoined
from setting up any claim to any part of said award or of the
moneys now, as aforesaid, in possession of your orator. And that
the said award on the claim of the said defendant La Abra Silver
Mining Company may, by the decree of this honorable court, be
declared to have been wholly obtained by means of false swearing
and other false and fraudulent practices on the part of said
defendant company, its agents, attorneys, and assigns. And that
your orator may have such other and further relief as the nature of
your orator's case may require and as may be agreeable to equity
and good conscience."
The La Abra Company and other defendants demurred to the bill on
the following grounds:
That, by the Constitution and laws of the United States, the
subject matter of this suit was within the final and exclusive
control of the Executive Department of the government of the United
States, and not within the jurisdiction of any judicial
tribunal;
That the questions whether the award of the Commission was
obtained by fraud and whether the money received under it and
remaining undistributed by the Secretary of State should be
returned by the President of the United States could not properly
be determined by any municipal court of either of the sovereign
parties to the treaty of 1868, but were questions of a diplomatic
or political nature determinable only by the Executive Department
of the government;
That the United States had not such an interest in the matters
and things alleged in the bill as entitled it to maintain this suit
or to have the relief asked;
That the government of Mexico was the party pecuniarily
interested in this suit, and that, by failing to institute and
prosecute suit against the alleged wrongdoers in the courts of the
United States for the annulment of the award and the recovery of
the moneys paid on account thereof, it had been guilty of laches
and had forfeited all right to relief in equity;
Page 175 U. S. 445
consequently, the United States was not entitled to demand such
relief for the benefit of or in the interest of Mexico;
That a mixed commission created and acting under and by virtue
of such a treaty as that of July 4, 1868, between the United States
and Mexico, was recognized by the law of nations and by the
Constitution and laws of the United States and was in fact and law
a court of exclusive and final jurisdiction, and its award could
not be set aside, reopened, or vacated by a municipal court of the
United States, either in virtue of an act of Congress or otherwise,
and that Congress could not grant a new trial in respect of matters
so finally determined and concluded by international arbitration
under such a treaty, but, on the contrary, such an award could, on
the part of the United States, be set aside, vacated, or reopened
only through its treatymaking power, and that the question
presented by the bill, whether the award should be reopened or not
on the grounds alleged, having been submitted to the treatymaking
power and by it decided in the negative, was
res
judicata;
That it appeared on the face of the bill that the question
whether the award in favor of the La Abra Company was obtained in
whole or part by fraud effectuated by means of false swearing or
other corrupt and fraudulent practices was substantially the same
question that was tried by the commissioners, such fraud and
fraudulent practices having been charged by the Mexican agent and
commissioner at the trial, and that that question, on the
disagreement of the two commissioners in respect of the integrity
of the witnesses and the credibility and weight of the evidence for
and against the claim of the company, was referred to the Umpire
for decision, and, having been decided by him, was
res
judicata and could not be reexamined or redetermined by this
Court;
That the act of Congress under which the suit was prosecuted was
unconstitutional and inoperative on the further ground that it
assumed to direct, control, and bind the courts in determining the
questions submitted for final adjudication to receive evidence and
apply legal principles that were erroneous and wholly inadmissible
according to law as administered
Page 175 U. S. 446
in the courts of the United States in like cases, and to
prescribe to the court what weight and effect should be given to
the evidence and how the court should reach the conclusion that the
award was obtained in whole or in part through fraud;
That inasmuch and because the questions presented by the bill
were of a political and diplomatic nature and not justiciable or
fit and proper to be considered and finally determined by a
municipal court, Congress could not impose upon the Court of
Claims, or upon the Supreme Court of the United States, or upon the
judges thereof, the trial and determination of those questions;
That the act of Congress in question was inoperative and void on
the further ground that it was never approved by the President of
the United States as required by law, the only alleged approval it
ever received being on the 28th of December, A.D. 1892, when
Congress was not in session, both houses of Congress having
adjoined on the 22d of December, A.D. 1892, to the 4th of January,
A.D. 1893; and,
That the bill did not state facts sufficient to constitute a
cause of action or to authorize the granting of any relief.
The demurrer to the bill, so far as it involved the jurisdiction
of the Court of Claims and the charges of fraud, was overruled, the
opinion of the court being delivered by Judge Weldon. 29 Ct.Cl.
432, 484 The question whether the Act of December 28, 1892, was so
approved by the President as to become a law was determined in
favor of the United States upon the grounds stated in the opinion
of the court previously delivered by Judge Nott, now chief justice
of that court, in
United States v. Weil, 29 Ct.Cl.
523.
The case having been prepared on the merits, the Court of
Claims, upon final hearing, found that the award made by the
commission on the claim of the La Abra Company
"was obtained as to the whole sum included therein by fraud
effectuated by means of false swearing and other false and
fraudulent practices on the part of said company and its
agents,"
and it was adjudged that all claims in law and equity on the
part of the company, its legal representatives
Page 175 U. S. 447
and assigns, be forever barred and foreclosed in respect of the
money received from the Republic of Mexico for or on account of
such award. 32 Ct.Cl. 462, 520-521.
An elaborate opinion of the Court of Claims, delivered by Judge
Weldon, states fully the grounds on which the decree was based.
That opinion concludes:
"The court, upon an examination of all the testimony, excluding
such portions of it as in the opinion of the court are not
competent, determines as a conclusion of fact that the La Abra
Silver Mining Company did not abandon its mines in Mexico because
of the interference of the people of Mexico and the public
authorities of the Mexican government, or either, but, on the
contrary, that it abandoned its mines because they were
unproductive and for the want of money to operate and work the
same, and that the award made by the United States and the Mexican
mixed commission in respect to the claim of the said La Abra Silver
Mining Company was obtained as to the whole sum included therein by
fraud effectuated by means of false swearing and other fraudulent
practices upon the part of said company and its agents, and a
decree will be entered barring and foreclosing all claim in law and
equity on the part of said company, or its agents, attorneys, and
assigns, to the money received from the Republic of Mexico for or
on account of such award. Having decided that the company was not
compelled to abandon its mines because of the acts of the people of
Mexico, unrestrained by the Mexican government, and that it was not
compelled to abandon the mines because of the unlawful interference
of the Mexican authorities with the property and business of the
company, it is not necessary to consider the question of the value
of the property of the company at the time for the
abandonment."
Chief Justice Nott dissented in part from the judgment. He was
of opinion that the first three items in the award of the Umpire,
above set forth, should stand, but that the fourth item was
fraudulently exaggerated and should be reduced to $420.09, and the
fifth, $100,000, rejected altogether as having been utterly
overthrown by the evidence. 32 Ct.Cl. 521, 533.
Page 175 U. S. 450
MR. JUSTICE HARLAN delivered the opinion of the Court.
In the light of this history of the claim of the La Abra
Page 175 U. S. 451
Company we proceed to the consideration of such of the principal
questions presented in argument as are essential to the disposition
of the case.
I. If, as insisted by the appellants, the above Act of December
28, 1892, was not so approved by the President as to become under
the Constitution a law, it would be unnecessary to consider any
other question raised by the pleadings, for that act is the only
basis of jurisdiction in the Court of Claims to render a judgment
that would be conclusive between the parties and which could be
reviewed by this Court. We must therefore first consider whether
that act is liable to the constitutional objection just stated.
The ground of this contention is that, having met in regular
session at the time appointed by law, the first Monday of December,
1892, and having on the 22d day of that month (two days after the
presentation of the bill to the President), by the joint action of
the two Houses, taken a recess to a named day, January 4, 1893,
Congress was not actually sitting when the President, on the 28th
day of December, 1892, by signing it, formally approved the act in
question. The proposition, plainly stated, is that a bill passed by
Congress and duly presented to the President does not become a law
if his approval be given on a day when Congress is in recess. This
implies that the constitutional power of the President to approve a
bill so as to make it a law is absolutely suspended while Congress
is in recess for a fixed time. It would follow from this that, if
both Houses of Congress, by their joint or separate action, were in
recess from some Friday until the succeeding Monday, the President
could not exercise that power on the intervening Saturday. Indeed,
according to the argument of counsel, the President could not
effectively approve a bill on any day when one of the Houses, by
its own separate action, was legally in recess for that day in
order that necessary repairs be made in the room in which its
sessions were being held. Yet many public acts and joint
resolutions of great importance, together with many private acts,
have been treated as valid and enforceable, which were approved by
the President during the recesses of Congress covering the
Page 175 U. S. 452
Christmas holidays. In the margin will be found a reference to
some of the more recent of those statutes.
*
Do the words of the Constitution, reasonably interpreted,
sustain the views advanced for appellant?
That instrument provides:
"The Congress shall assemble at least once in every year, and
such meeting shall be on the first Monday in December, unless they
shall by law appoint a different day."
Art. I. § 4.
"Neither House, during the session of Congress, shall, without
the consent of the other, adjourn for more than three days, nor to
any other place than that in which the two Houses shall be
sitting."
Art. I. § 5.
"Every bill which shall have passed the House of Representatives
and the Senate shall, before it becomes a law, be presented to the
President of the United States; if he approves, he shall sign it,
but if not, he shall return it, with his objections to that House
in which it shall have originated, who shall enter the objections
at large on the journal, and proceed to consider it. If, after such
reconsideration, two-thirds of that
Page 175 U. S. 453
House shall agree to pass the bill, it shall be sent, together
with the objections, to the other House, by which it shall likewise
be reconsidered, and if approved by two-thirds of that House, it
shall become a law. But in all such cases, the votes of both Houses
shall be determined by yeas and nays, and the names of the persons
voting for and against the bill shall be entered on the journal of
each House respectively. If any bill shall not be returned by the
President within ten days (Sundays excepted) after it shall have
been presented to him, the same shall be a law in like manner as if
he had signed it, unless the Congress by their adjournment prevent
its return, in which case it shall not be a law."
Art. I. § 7.
"Every order, resolution, or vote to which the concurrence of
the Senate and House of Representatives may be necessary (except on
a question of adjournment) shall be presented to the President of
the United States, and before the same shall take effect, shall be
approved by him, or being disapproved by him, shall be repassed by
two-thirds of the Senate and House of Representatives, according to
the rules and limitations prescribed in the case of a bill."
Art. I. § 8.
It is said that the approval by the President of a bill passed
by Congress is not strictly an executive function, but is
legislative in its nature, and this view, it is argued,
conclusively shows that his approval can legally occur only on a
day when both Houses are actually sitting in the performance of
legislative functions. Undoubtedly the President, when approving
bills passed by Congress, may be said to participate in the
enactment of laws which the Constitution requires him to execute.
But that consideration does not determine the question before us.
As the Constitution, while authorizing the President to perform
certain functions of a limited number that are legislative in their
general nature, does not restrict the exercise of those functions
to the particular days on which the two Houses of Congress are
actually sitting in the transaction of public business, the Court
cannot impose such a restriction upon the Executive. It is made his
duty by the Constitution to examine and act upon every bill passed
by Congress. The time within which he must approve or
disapprove
Page 175 U. S. 454
a bill is prescribed. If he approve a bill, it is made his duty
to sign it. The Constitution is silent as to the time of his
signing, except that his approval of a bill duly presented to him
-- if the bill is to become a law merely by virtue of such approval
-- must be manifested by his signature within ten days, Sundays
excepted, after the bill has been presented to him. It necessarily
results that a bill when so signed becomes from that moment a law.
But in order that his refusal or failure to act may not defeat the
will of the people as expressed by Congress, if a bill be not
approved and be not returned to the House in which it originated
within that time, it becomes a law in like manner as if it had been
signed by him. We perceive nothing in these constitutional
provisions making the approval of a bill by the President a nullity
if such approval occurs while the two Houses of Congress are in
recess for a named time. After a bill has been presented to the
President, no further action is required by Congress in respect of
that bill, unless it be disapproved by him and within the time
prescribed by the Constitution be returned for reconsideration. It
has properly been the practice of the President to inform Congress
by message of his approval of bills, so that the fact may be
recorded. But the essential thing to be done in order that a bill
may become a law by the approval of the President is that it be
signed within the prescribed time after being presented to him.
That being done, and as soon as done, whether Congress is informed
or not by message from the President of the fact of his approval of
it, the bill becomes a law, and is delivered to the Secretary of
State as required by law.
Much of the argument of counsel seems to rest upon the provision
in relation to the final adjournment of Congress for the session
whereby the President is prevented from returning, within the
period prescribed by the Constitution, a bill that he disapproves
and is unwilling to sign. But the Constitution places the approval
and disapproval of bills, as to their becoming laws, upon a
different basis. If the President does not approve a bill, he is
required within a named time to send it back for consideration. But
if by its action, after the
Page 175 U. S. 455
presentation of a bill to the President during the time given
him by the Constitution for an examination of its provisions and
for approving it by his signature, Congress puts it out of his
power to return it, not approved, within that time to the House in
which it originated, then the bill falls, and does not become a
law.
Whether the President can sign a bill after the final
adjournment of Congress for the session is a question not arising
in this case, and has not been considered or decided by us. We
adjudge -- and, touching this branch of the case, adjudge nothing
more -- that the act of 1892 having been presented to the President
while Congress was sitting, and having been signed by him when
Congress was in recess for a specified time, but within ten days,
Sundays excepted, after it was so presented to him, was effectively
approved, and immediately became a law, unless its provisions are
repugnant to the Constitution.
II. It is said that the present proceeding based on the act of
1892 is not a "case" within the meaning of that clause of the
Constitution authority. Art. III, § 2. This article, as has
been adjudged, does not extend the judicial power to every
violation of the Constitution that may possibly take place, but
only
"to a case in law or equity in which a right under such law is
asserted in a court of justice. If the question cannot be brought
into a court, then there is no case in law or equity, and no
jurisdiction is given by the words of the article. But if, in any
controversy depending in a court, the cause should depend on the
validity of such a law, that would be a case arising under the
Constitution, to which the judicial power of the United States
would extend."
Cohen v.
Virginia, 6 Wheat. 264,
19 U. S. 405.
In the same case, Chief Justice Marshall declared a suit to be the
prosecution by a party of some claim, demand, or request in a court
of justice for the purpose of being put in possession of a right
claimed by him and of which he was deprived.
Page 175 U. S. 456
Referring to the provision defining the judicial power of the
United States, the Court in a subsequent case said:
"This clause enables the judicial department to receive
jurisdiction to the full extent of the Constitution, laws, and
treaties of the United States when any question respecting them
shall assume such a form that the judicial power is capable of
acting on it. That power is capable of acting only when the subject
is submitted to it by a party who asserts his rights in the form
prescribed by law. It then becomes a case, and the Constitution
declares that the judicial power shall extend to all cases arising
under the Constitution, laws, and treaties of the United
States."
Osborn v. Bank of United
States, 9 Wheat. 738,
22 U. S. 819.
In
Murray v.
Hoboken, 18 How. 272,
59 U. S. 284,
this Court said that Congress can neither
"withdraw from judicial cognizance any matter which, from its
nature, is the subject of a suit at the common law or in equity or
admiralty nor, on the other hand, can it bring under the judicial
power a matter which, from its nature, is not a subject for
judicial determination."
But in the same case it was observed by Mr. Justice Curtis,
speaking for the Court, that
"there are matters involving public rights which may be
presented in such form that the judicial power is capable of acting
on them, and which are susceptible of judicial determination, but
which Congress may or may not bring within the cognizance of the
courts of the United States, as it may deem proper."
Of like import was the judgment in
Smith v. Adams,
130 U. S. 167,
130 U. S. 173,
in which the Court said that the terms "cases" and "controversies"
in the Constitution embraced
"the claims or contentions of litigants brought before the
courts for adjudication by regular proceedings established for the
protection or enforcement of rights, or the prevention, redress, or
punishment of wrongs."
The principles announced in the above cases are illustrated by
the opinion prepared by Chief Justice Taney for the case of
Gordon v. United
States, 2 Wall. 561. That case was brought to this
Court from the Court of Claims, and related to a demand asserted
against the United States. The principal question was whether this
Court had jurisdiction to review the final order made in the
court
Page 175 U. S. 457
below. The chief justice died before the case was decided, and
the opinion prepared by him in recess was not formally accepted.
But if the Court approved his views, as it undoubtedly did, the
appeal was dismissed upon the ground that Congress could not
authorize or require this Court to express an opinion on a case in
which its judicial power could not be exercised, and when its
judgment would not be final and conclusive upon the rights of the
parties. "The award of execution," Chief Justice Taney said,
"is a part, and an essential part, of every judgment passed by a
court exercising judicial power. It is no judgment, in the legal
sense of the term, without it. Without such an award, the judgment
would be inoperative and nugatory, leaving the aggrieved party
without a remedy. It would be merely an opinion which would remain
a dead letter, and without any operation upon the rights of the
parties, unless Congress should at some future time sanction it and
pass a law authorizing the court to carry its opinion into effect.
Such is not the judicial power confided to this Court in the
exercise of its appellate jurisdiction; yet it is the whole power
that the Court is allowed to exercise under this act of
Congress."
In a more recent case, this Court dismissed an appeal from a
final order made in the Court of Claims in virtue of a particular
statute, observing:
"Such a finding is not made obligatory on the department to
which it is reported -- certainly not so in terms, and not so, as
we think, by any necessary implication. We regard the function of
the Court of Claims in such a case as ancillary and advisory only.
The finding or conclusion reached by that court is not enforceable
by any process of execution issuing from the court, nor is it made
by the statute the final and indisputable basis of action, either
by the department or by Congress."
In re Sanborn, 148 U. S. 222,
148 U. S. 226;
Interstate Commerce Commission v. Brimson, 154 U.
S. 447,
154 U. S.
483.
Under the principles established in the cases above cited, the
objections urged against the jurisdiction of the Court of Claims
and of this Court cannot be maintained if the present proceeding
involves a right which in its nature is susceptible of judicial
determination, and if the determination of it by
Page 175 U. S. 458
the Court of Claims and by this Court is not simply ancillary or
advisory, but is the final and indisputable basis of action by the
parties.
The money in the hands of the Secretary of State was paid to the
United States by Mexico pursuant to the award of the commission.
That tribunal dealt only with the two governments, had no relations
with claimants, and could take cognizance only of claims presented
by or through the respective governments. No claimant, individual
or corporate, was entitled to present any demand or proofs directly
to the commission. No evidence could be considered except such as
was furnished by or on behalf of the respective governments. While
the claims of individual citizens presented by their respective
governments 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."
And
"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."
Frelinghuysen v. Key, above cited. As between the
United States and Mexico, indeed as between the United States and
American claimants, the money received from Mexico under the award
of the commission was, in strict law, the property of the United
States, and no claimant could assert or enforce any interest in it
so long as the government legally withheld it from
distribution.
When the La Abra Company asked the intervention of the United
States, it did so on the condition imposed by the principles of
comity recognized by all civilized nations, that it would act in
entire good faith, and not put the government whose aid it sought
in the attitude of asserting against the Mexican Republic a
fraudulent or fictitious claim; consequently the United States,
under its duty to that Republic, was required to withhold any sum
awarded and paid on account of the company's claim if it appeared
that such claim was of that character. As between the United States
and the
Page 175 U. S. 459
company, the honesty or genuineness of the latter's claim was
open to inquiry in some appropriate mode for the purpose of fair
dealing with the government against which such claim was made
through the United States. We so adjudged in the
Key case.
The United States assumed the responsibility of presenting the La
Abra claim and made it its own in seeking redress from the Mexican
Republic. But from such action on its part no contract obligations
arose with the La Abra Company "to assume their frauds and to
collect on their account all that, by their imposition of false
testimony, might be given in the awards of the commission."
United States ex Rel. Boynton v. Blaine, above cited.
These considerations make it clear that the act of 1892 is not
liable to the objection that it subjected to judicial determination
a matter committed by the Constitution to the exclusive control of
the President. The subject was one in which Congress had an
interest, and in respect to which it could give directions by means
of a legislative enactment. The question for the determination of
which the present suit was directed to be instituted was whether
the award made by the commission in respect to the claim of the La
Abra Company was obtained, as to the whole sum included therein or
as to any part thereof, by fraud effectuated by means of false
swearing or other false and fraudulent practices on the part of the
company or its agents, attorneys, or assigns. It cannot, we think,
be seriously disputed that the question whether fraud has or has
not been committed in presenting or prosecuting a demand or claim
before a tribunal having authority to allow or disallow it is
peculiarly judicial in its nature, and that, in ascertaining the
facts material in such an inquiry, no means are so effectual as
those employed by or in a court of justice. The executive branch of
the government recognized the inadequacy for such an investigation
of any means it possessed, and declared that Congress, by its
"plenary authority," ought not only to decide whether such an
investigation should be made, but provide an adequate procedure for
its conduct and prescribe the consequences to follow therefrom. The
suggestion that the question of fraud be committed to the
determination of a judicial
Page 175 U. S. 460
tribunal first came from the executive branch of the government.
Undoubtedly Congress, having in view the honor of the government
and the relations of this country with Mexico, could have
determined the whole question of fraud for itself, and by a statute
approved by the President, or which, being disapproved by him, was
passed by the requisite constitutional vote, have directed the
return to Mexico, the other party to the award, of such moneys as
had been paid into the hands of the Secretary of State. It is also
clear that, in the absence of any statute suspending the
distribution of such moneys, the President could have ignored the
charges of fraud and ordered the distribution to proceed according
to the terms of the treaty and the award. But it does not follow
that Congress was without power, no distribution having been made,
to control the whole matter by plenary legislation.
It has been adjudged that Congress by legislation, and so far as
the people and authorities of the United States are concerned,
could abrogate a treaty made between this country and another
country which had been negotiated by the President and approved by
the Senate.
Head Money Cases, 112 U.
S. 580,
112 U. S. 599;
Whitney v. Robertson, 124 U. S. 190,
124 U. S. 194;
Chinese Exclusion Case, 130 U. S. 581,
130 U. S. 600;
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S. 721.
It is therefore difficult to perceive any ground upon which to
question its power to make the distribution of moneys in the hands
of the Secretary of State -- representing in that matter the United
States and not simply the President -- depend upon the result of a
suit by which the United States would be bound and in which the
claimants to the fund in question could be heard as parties, and
which was to be brought in a court of the United States by its
authority, for the purpose of determining whether the La Abra
Company, its agents or assigns, had been guilty of fraud in the
matter of the claim that it procured to be presented to the
commission. The act of 1892 is to be taken as a recognition, so far
as the United States is concerned, of the legal right of the
company to receive the moneys in question unless it appeared upon
judicial investigation that the
Page 175 U. S. 461
United States was entitled, by reason of fraud practiced in the
interest of that corporation, to withhold such moneys from it.
Here, then, is a matter subjected to judicial investigation in
respect of which the parties assert rights -- the United States
insisting upon its right under the principles of international
comity to withhold moneys received by it under a treaty on account
of a certain claim presented through it before the commission
organized under that treaty in the belief, superinduced by the
claimant, that it was an honest demand, the claimant insisting upon
its absolute legal right under the treaty and the award of the
commission, independently of any question of fraud, to receive the
money, and disputing the right of the United States upon any ground
to withhold the sum awarded. We entertain no doubt these rights are
susceptible of judicial determination within the meaning of the
adjudged cases relating to the judicial power of the courts of the
United States, as distinguished from the powers committed to the
executive branch of the government.
It remains, in our consideration of the question of
jurisdiction, to inquire whether the judgment authorized by the act
of 1892 to be rendered would be a final, conclusive determination,
as between the United States and the defendants, of the rights
claimed by them respectively, or only ancillary or advisory. In our
opinion, the act of Congress authorized a final judgment of the
former character, and therefore the judgment of the Court of Claims
is reviewable by this Court in the exercise of its appellate
judicial power. If our judgment should be one of affirmance then
the La Abra Company, its legal representatives or assigns are
barred of all claim, legal or equitable, to the money received by
the United States from the Republic of Mexico on account of the
award of the commission. Such a determination would rest upon the
broad ground that the United States, in its efforts to protect the
alleged rights of an American corporation, had been the victim of
fraud upon the part of that corporation, its agents or assigns, and
was in law relieved from any responsibility to that corporation
touching the claim in question
Page 175 U. S. 462
or the moneys received on account of it. If, on the other hand,
this Court should find that the charges of fraud were not sustained
or were disproved, and reverse the decree of the Court of Claims,
then it would become the absolute legal duty of the Secretary of
State to proceed in the distribution of the moneys in his hands
according to the terms of the award. It was competent for Congress,
by statute, to impose that duty upon him, and he could not refuse
to obey the mandate of the law.
Much was said in argument about the interference by the act of
1892 with the discharge by the President of his constitutional
functions in connection with matters involved in the relations
between this country and the Republic of Mexico. For reasons
already given, this contention cannot be sustained. It is without
support in anything done or said by the eminent jurists who have
presided over the Department of State since the controversy arose
as to the integrity of claim made by the La Abra Company. On the
contrary, those officers have uniformly insisted that the authority
of Congress was plenary to determine whether the award in respect
of those claims was procured by fraud practiced on the part of that
company, and whether, in that event the company should be barred of
any claim to the moneys received from the Republic of Mexico. Upon
this question, the legislative and executive branches of the
government have acted in perfect harmony. The question arises under
the Constitution of the United States, and a treaty made by the
United States with a foreign country is judicial in its nature, and
one to which the judicial power of the United States is expressly
extended. Both branches of the government were concerned in the
enactment subjecting that question to judicial determination, and
it cannot properly be said that the President, by approving the act
of 1892 or by recognizing its binding force, surrendered any
function belonging to him under the supreme law of the land.
It was also said in argument that the act of Congress, in some
way not clearly defined by counsel, was inconsistent with the
principles underlying international arbitration, a
Page 175 U. S. 463
mode for the settlement of disputes between sovereign states
that is now more than ever before approved by civilized nations. We
might well doubt the soundness of any conclusion that could be
regarded as weakening or tending to weaken the force that should be
attached to the finality of an award made by an international
tribunal of arbitration. So far from the act of Congress having any
result of that character, the effect of such legislation is to
strengthen the principle that an award by a tribunal acting under
the joint authority of two countries is conclusive between the
governments concerned, and must be executed in good faith unless
there be ground to impeach the integrity of the tribunal itself.
The act of 1892 is a recognition of the principle that
"international arbitration must always proceed on the highest
principles of national honor and integrity."
Frelinghuysen v.
Key, above cited. By that act, the United States declares that
its citizens shall not, through its agency, reap the fruits of a
fraudulent demand which they have induced it to assert against
another country. Such legislation is an assurance in the most
solemn and binding form that the government of this country will
exert all the power it possesses to enforce good faith upon the
part of citizens who, alleging that they have been wronged by the
authorities of another country, seek the intervention of their
government to obtain redress.
We hold that the act of 1892 is not unconstitutional upon any of
the grounds adverted to; that the Court of Claims had jurisdiction
to render the decree in question; that such decree, unless
reversed, is binding upon the parties to this cause, and that this
Court, in the exercise of its appellate power, has authority to
reexamine that decree and make such order or give such direction as
may be consistent with law.
III. The Court of Claims did not make a finding of facts. It is
therefore contended on behalf of the United States that the appeal
provided for by the act of 1892 does not authorize a reexamination
of the evidence, as in equity cases generally, and that the present
case comes within the rule prescribed by this Court under the
authority of the Act of March 3, 1863, 12 Stat. 766, c. 92,
Rev.Stat. § 708, providing that, in connection
Page 175 U. S. 464
with any final judgment rendered in the Court of Claims, there
shall be a finding of facts.
In its opinion on the demurrer to the bill, the Court of Claims
said:
"The directions of the statute [the act of 1892] as to the
character of the decree seem to be without doubt, and as the court
in the trial of the cause is in the exercise of equity powers, it
would find no difficulty in entering such a decree as will carry
out the purpose of the statute."
29 Ct.Cl. 432, 452. In its opinion on the final hearing of the
case, the court below said:
"This being a proceeding in equity, this Court is not called
upon to settle the facts by the finding of ultimate facts for the
consideration of the Supreme Court, but the whole record is
transmitted to that court, and the case is to be determined in the
Supreme Court upon the law as it shall be adjudged and upon the
facts as they shall be found by the decision of the Supreme Court.
That would be so in a case of this kind arising under the ordinary
jurisdiction of the Court of Claims, but it is especially true from
the provisions of the statute giving us the special jurisdiction to
determine the issues of this proceeding. The statute provides for a
decree, and not for a money judgment."
After citing
Harvey v. United States, 105 U.
S. 671, the court continued:
"All the testimony being before the supreme court for the
purpose of settling ultimate facts from such testimony, we have
confined the limits of this opinion to questions of law and the
determination of the ultimate fact, which is whether the company
was compelled to abandon its mines because of the acts of the
people of Mexico and the Mexican authorities."
32 Ct.Cl. 462, 515, 516.
In our judgment, the Court of Claims properly interpreted the
act of 1892. While that act does not in express words direct the
Attorney General to institute a suit "in equity" or declare that
this Court, on appeal, should reexamine the entire case on both law
and facts, a suit of that character was contemplated when Congress
invested the Court of Claims with full jurisdiction to make
"all interlocutory and final decrees therein as the evidence may
warrant, according to the principles of equity and justice, and to
enforce the same by injunction
Page 175 U. S. 465
or any proper final process,"
and gave either party the right to appeal to this Court from the
final decision within ninety days "from the rendition of such final
decree." This construction is not inconsistent with the direction
that the Court of Claims should in all respects proceed in the suit
brought by the Attorney General "according to law and the rules of
said court, so far as the same are applicable," and that the appeal
from its final decree should be taken "under the rules of practice
which govern appeals from said court." Looking at the words of the
act of 1892 and the peculiar nature of the important questions
involved in any suit brought under it, we cannot suppose that
Congress intended to relieve this Court from the responsibility of
determining for itself, and upon its own view of all the evidence,
what were the ultimate facts bearing upon the inquiry as to the
alleged fraud in bringing about the award in question. The present
proceeding, we think, comes within the principle announced in
Harvey v. United States, 105 U. S. 671,
105 U. S. 691,
where it was said that the rule in regard to findings of fact in
the Court of Claims had no reference to a case "of equity
jurisdiction conferred in a special case by a special act" in which
"this Court must review the facts and the law as in other cases in
equity, appealed from other courts." This principle was approved
and applied in
United States v. Old Settlers, 148 U.
S. 427,
148 U. S. 428,
148 U. S.
465.
We are of opinion that the appeal provided for in the act of
1892 was one under which it is our duty to determine the rights of
the parties as in a case in equity. The provision in the act
expressly empowering the court below in the event it was found that
the award in question was fraudulently obtained as to the whole or
any part of the sum included therein by the La Abra Company, to bar
and
foreclose all claims in law or
equity on its
part, together with the provision authorizing the court to render
such
interlocutory and
final decrees as the
evidence may warrant, according to the principles of equity and
justice, and to enforce the same by
injunction, imports
such jurisdiction in the Court of Claims as may be ordinarily
exercised by courts of equity as distinguished from courts of
law,
Page 175 U. S. 466
and as entitled that court to send up the entire evidence for
examination here.
IV. We come now to consider in the light of all the evidence
whether the award in question was obtained by fraud effectuated by
means of false swearing or other false and fraudulent practices on
the part of the La Abra Company, its agents, attorneys, or
assigns.
In view of the exceptional character of the case, and that there
may be no ground to misapprehend the basis upon which our decree
will rest, we deem it appropriate to set forth in this opinion the
principal facts bearing on the issue of fraud.
In its memorial presented to the commission through the United
States, the La Abra Company referred to the mines in Mexico of
which it asserted ownership as being of extraordinary richness and
historical interest.
It was stated in the memorial that, after becoming the
proprietor of those mines, the company, with all possible dispatch
proceeded to the working of them, and to that end sent intelligent
agents to Mexico, employed miners, machinists, and laborers,
purchased mules, equipments, provisions, the best and most improved
machinery, which were transported on the backs of mules to the
mines at heavy cost, and incurred other expenses necessary to the
most extensive and successful working of the property; that they
expended in the purchase of the mines and in their working the sum
of $303,000, and as the result of this large expenditure were
getting out a large amount of the richest ore and were in the act
of realizing the extraordinary profit of $1,000,000 per annum when,
by reason of unfriendly and illegal acts of the Mexican officials,
they were compelled to abandon their mines, all their machinery and
other property, and over a thousand tons of ore obtained by the
company from the mines; that intense prejudice was constantly
manifested by the civil and military authorities and by the Mexican
populace against all Americans, and especially against those
engaged in mining, this prejudice being intensified by the belief
that the United States intended to annex Durango, Sinaloa, and
other states to its territory, and that the La
Page 175 U. S. 467
Abra Company was assisting in that purpose; that the property of
the company and the persons and the lives of employees were
threatened by the authorities and the people, and its
superintendent was arrested without having given cause for offense,
and fined and imprisoned without trial and without out being
informed of any offense; that when he applied to the authorities,
civil and military, in Durango and Sinaloa for protection, his
request was harshly refused, and acts of violence, encouraged by
the authorities, were committed against the property and employees
of the company which so alarmed the employees that it was
impossible to keep them at work; that the authorities repeatedly
seized its mule trains loaded with provisions and appropriated the
same to their use, and large quantities of ore from the mines were
taken from the company, its employees being deterred by threats
from resisting such spoliation; that things finally got to such a
pass that an employee of the company in charge of one of its trains
was killed by the Liberal forces and the train seized, and that was
made matter of boast by the Mexican officials, and the authorities
at San Dimas openly avowed their purpose to drive out all American
mining companies and get their property; that the one motive of
this persecution was to compel the company to leave, and thus
permit the Mexicans to obtain possession of their valuable
property, and that from such persecution, outrages, and insecurity
it became impossible for the company to work the mines and they
were abandoned as stated, such enforced abandonment utterly ruining
the company.
The memorial concluded by alleging that when the company
acquired the La Abra mines, though they were of immense richness,
it was impossible from their neglected state to extract ores except
by heavy expenditures; that in connection with the principal mines
were buildings of great cost and other permanent structures, but,
owing to the abandoned condition of the mines, they were of no
present value; that the large expenditures made by the company at
the mines gave a very great value to them and to the buildings and
other permanent structures, and they became and were of the value
of
Page 175 U. S. 468
$1,000,000; that the company was obliged to abandon 1,000 tons
of silver ore already extracted, worth $500,000, which it was
impossible for them to bring away, and which, upon the abandonment
of the mines, were carried off by the Mexicans and lost to the
company; that when such abandonment occurred, the company was
extracting large quantities of ore, and the profits would have been
great if it had been permitted to work them; that the company
estimated its clear annual profits which it could have obtained
from the mines at $1,000,000 per annum; that, in addition to the
expenditures in the mines as aforesaid, the company had expended
$30,000 in conducting its business, and that the mines and the
improvements and machinery therein had become wholly lost to the
company, and its losses and damages because of the enforced
abandonment were $3,000,030.
The memorial also stated that the company had never received any
indemnity for its claim, and its prayer was for an award against
the Mexican government for its damages, with interest thereon.
It may be here observed that this memorial contained no hint or
intimation that the abandonment by the company of mining operations
in Mexico was due in any degree to its inability or failure to
supply the money necessary for the development of its property and
to meet the expenses of mining operations.
That the La Abra Company ceased to work its mines in Mexico and
practically abandoned them is undoubtedly true. But is it true that
they did so in consequence of violence and outrages committed
against it by the public authorities of the Republic of Mexico? The
United States insists upon a negative answer to this question. It
contends that the company ceased to work its mines and abandoned
its property for reasons wholly disconnected from anything done or
omitted to be done by the authorities of Mexico, and asserts that
the La Abra Company suspended operations in that country not only
because of want of funds necessary to develop its property, but
because of the belief of stockholders that the mines were not of
sufficient value to justify a larger expenditure of money,
Page 175 U. S. 469
and that it was a pure afterthought to attempt by the agency of
the United States to fasten upon Mexico responsibility for the
losses incurred by the company in the abandonment of its mining
property.
The connection of the La Abra Company with these mines may be
briefly stated as follows: in 1865, one Hardy went to the City of
New York for the purpose of selling mining property in Mexico which
he claimed to own or control and which constitutes part of the
property now in question. He there met a person named Garth, and
exhibited to him some specimens of ore which he stated were taken
from that property. Among those whose attention had been called to
those mines -- precisely at what time or in what way does not
appear -- was a person named Bartholow. Garth and Bartholow were
sent to Mexico by New York capitalists to examine the mines. They
were accompanied by Hardy, and were joined by one who was reputed
to be a California mining expert, named Griffith. The party arrived
at the mines near Tayoltita, Mexico, in June, 1865. In his
deposition taken June 22, 1874, Bartholow stated that, after
examining the property, several mines, with their improvements,
were purchased from the owners, Don Juan Castillo de Valle and
Ygnacio Manjarrez, at the price of $57,000, gold coin. Twenty-two
twenty-fourths of the La Abra mine, lying immediately contiguous to
the mines, purchased from de Valle and Manjarrez, were purchased
from Hardy and one Luce at the price of $22,000, gold coin. In the
same deposition, Bartholow stated:
"We then reported said purchases, and all the facts exactly as
they existed there, to said gentlemen, capitalists, all of whom
were intimate acquaintances, and some of them personal friends and
relatives of said Garth and myself, and thereupon they formed said
Abra Silver Mining Company, and organized the same under the
general mining laws of the State of New York, to work said mines in
Mexico, which organization was perfected on the eighteenth day of
November, 1865, and said mines and haciendas were duly conveyed to
said company by said Garth and myself, we being amongst the very
largest stockholders of the same. . . . After receiving the legal
titles to all of
Page 175 U. S. 470
said property, as we did, without any reserved interest to said
former owners, the said Garth immediately returned to New York, and
I proceeded to the City of San Francisco, California, and I there
purchased, for and in the name of said company, as the same had
been determined upon by said Garth and myself, a ten-stamp mill and
other machinery and modern appliances for running or working the
same at said mines, and I also purchased provisions and supplies of
every kind and description needed by the officers and employees
which could not be purchased to advantage in Mexico, and I shipped
the same to the port of Mazatlan, Sinaloa, by steamships and
sailing vessels, and from there said machinery and supplies were
transported by mule trains over the mountains of Sinaloa and
Durango to the said hacienda of La Abra Company, San Nicolas, near
to Tayoltita, and I commenced, as superintendent, the work of
erecting a mill house for said stamp mill, a new hacienda adjoining
the old hacienda, San Nicolas, outhouses for officers and
employees, and the opening of said mines, with general preparations
for carrying on said mining enterprise on a large scale, as was
anticipated by said stockholders. In the meantime, the said Garth
and myself had reported to said stockholders at New York our entire
action and conduct in the matter of said purchases and
preparations, which reports were accepted and fully approved by
said stockholders, who, upon the organization of said company,
appointed me as their first superintendent of their said mining
operations and requested me to remain as such superintendent until
said works were fairly started and in successful operation. I had
already requested said stockholders, and subsequently the company,
after its organization, to appoint a superintendent to relieve me,
as my business in St. Louis was of greater importance to me than my
interest in the mining enterprise. My successor was appointed and
relieved me at said mines in the month of May, 1866."
The successor of Bartholow as superintendent in charge of the
mining property was Colonel Julian A. De Lagnel, formerly an
officer in the army of the United States. He had had no experience
in mining, but was recognized by all --
Page 175 U. S. 471
and properly, according to the evidence in this record -- as a
gentleman of integrity and force of character. He left New York for
the mines in March, 1866, and arrived there in April of that year.
He discharged the duties of superintendent for about one year and
until the spring of 1867, and was succeeded by a person named
Exall. The latter remained in charge of the mines until about March
or April, 1868, when he abandoned the property and returned to New
York, and all work at the mines ceased. When Exall left Mexico for
New York, the property was placed by him in charge of one Granger.
The principal witnesses before the commission on behalf of the La
Abra Company were Bartholow and Exall. The company did not take the
testimony of De Lagnel, giving as a reason for not doing so the
impossibility of ascertaining his whereabouts. That excuse is not
sustained by the record before us.
During the entire period when Bartholow, De Lagnel, and Exall
were respectively superintendents at the mines, Garth was the
executive officer and manager of the affairs of the company at the
City of New York, representing it in all correspondence with the
different superintendents. Whatever omissions of duty were fairly
chargeable against the Mexican authorities in respect of the
company's property necessarily occurred after Bartholow took charge
at the mines and before Exall returned to New York. During that
period of about three years, there was a regular correspondence by
letter between the respective superintendents and Garth in his
capacity as representative of the company at its chief office in
New York. Neither the commissioners nor the Umpire had those
letters before them when the La Abra claim was examined by them.
After the award in question, the letter-impression book in which
the letters or reports of the superintendents were originally
copied was discovered by Mexico and brought by its diplomatic
representatives to the attention of the Department of State. Of the
identity of that book, as containing the correspondence between the
La Abra Silver Mining Company and its several superintendents at
the mines, no doubt can exist, although it is insisted that some
letters do
Page 175 U. S. 472
not now appear in the book that were once in it. It was, we
suppose, principally the evidence furnished by that correspondence
that induced Secretary Evarts to report to the President that the
honor of the United States required that the La Abra claim should
be further investigated in order to ascertain whether its
government had not been induced to enforce against a friendly power
claims of American citizens based upon or exaggerated by fraud and
false swearing.
That there was before the commission some evidence which,
uncontradicted or unexplained, tended to support the allegations of
outrage, violence, and neglect of duty on the part of Mexican
authorities may be admitted. That evidence came largely from
Bartholow and Exall. But it is manifest that the Umpire could not
possibly have reached the conclusion he did in respect to the La
Abra claim if the letter book, giving detailed accounts from time
to time of all that occurred at the mines while in charge of
Bartholow, De Lagnel, and Exall, had been in evidence when he
rendered his decision. The reports made by the company's
superintendents as to the management of the property and of what
occurred at the mines are utterly inconsistent with the statement
that the company's abandonment of mining operations and of its
property was in consequence of the misconduct and violence of the
Mexican authorities. Placing this letter book beside the evidence
adduced before the commission and the Umpire by the La Abra
Company, it is clear that the material transactions and incidents
which the company's witnesses before the commission detailed as
establishing the charge against the Mexican authorities were
misstated or grossly exaggerated. It now appears that much of the
evidence upon which the commission must have rested its conclusion
was wholly without foundation, and had its origin in a fraudulent
purpose or plan to make it appear that the public authorities of
Mexico were chargeable with a responsibility that could not fairly
or justly be imputed to them.
Let us see how far this general statement is justified by the
evidence adduced in the present case when examined in connection
with the testimony brought before the commission.
Page 175 U. S. 473
In the memorial presented by the company through the United
States, the principal specification of the outrages alleged to have
been committed by the Mexican authorities was that
"one of the personnel of the company, in charge of one of its
trains, was openly killed by the Liberal forces, and the train
seized, and that was made matter of boast by the Mexican officials,
and the authorities at San Dimas openly avowed their purpose to
drive out all American mining companies and get their
property."
The particular matter here referred to was that of the killing
during the superintendency of Bartholow of William Grove, an
employee of the company. We have already referred to the deposition
of Bartholow taken June 22, 1874. It seems that, prior to that
date, the Mexican government had taken the deposition or affidavit
of Pio Quinto Nunez and Cepomuceno Manjarraz. Nunez, who resided in
the district where the mines were situated, among other things,
testified
"that it is not true that these Americans abandoned their
enterprise on account of the acts of Mexican officials, and that it
is equally false that either the civil or military authorities or
the inhabitants of the district made any prejudicial opposition to
them, as they have alleged they did; that the deponent has never
seen or heard it said that any superintendent was imprisoned, and
much less does he believe that such superintendent complained to
the civil or military authorities in Durango and Sinaloa, and was
denied the protection thus solicited; that he has never known that
the authorities have countenanced acts of violence against the
interests and employees of the company; that it is false that the
authorities, as the company allege, took possession of their mules
and provisions and appropriated the same to their own use; that the
company never had any ore taken from them as they affirm, since
that which they took out of their mines still exists, as before
stated; nor have their employees ever been threatened by any
Mexican with intention to rob them; that the company has no reason
to complain in any way against Mexico, because they did not abandon
their operations on account of the Mexicans, but because they
themselves did not understand how to carry on the working
Page 175 U. S. 474
of the mines, as is proved by the unproductive manner in which
they worked; that this is the cause of their abandonment, and not,
as they say, from any want of security; that the reparation which
the company claims of Mexico is not founded in justice, because the
allegations upon which it is based are false."
Manjarrez, residing in the same district, testified to the same
effect.
Now, when Bartholow's deposition was taken in 1874, he was asked
whether the statements made by Nunez and Manjarrez and other
witnesses for Mexico were true. He answered in the negative, saying
they were wholly untrue. In response to an inquiry as to the
circumstances of the murder of one of the employees of the company
in charge of mule trains or supplies, he then testified:
"His name was William Grove; he was one of my most valued
employees: he was murdered between the Town of San Ignacio and
Tayoltita; I afterwards recovered his body; it was badly mutilated
by gunshot wounds, evidently produced by a volley of musketry. This
occurred in January of February, 1866. At the time of the murder
Mr. Grove was in the employ of the Abra Company as quartermaster,
and was entrusted with the charge of one of our mule trains, used
for transportation of supplies. Mr. Grove was murdered by soldiers
of the Republican army. The train that was the special charge of Mr
Grove was taken possession of by the military authorities, with its
entire outfit and supplies, all of which were totally lost to the
Abra Company. The mule trains owned and worked by the company at
that time, were three in number, aggregating about 150 mules; the
train so taken was one of the three here mentioned."
This was a very imposing statement in support of the charge in
the company's memorial as to the murder of one of its employees and
the seizure of its property by the Mexican authorities. But the
charge had no foundation in fact if Bartholow's account of the
affair as contained in his report made to the company when all the
circumstances were fresh in his mind was true. In his report to
Garth as the representative of the La Abra Company, of March 7,
1866, which
Page 175 U. S. 475
report appears in the letter book above referred to, he
said:
"In my last letter I informed you that one of my employees, Wm.
Grove, Esq., formerly of Saline county, Missouri, was missing, and
I feared had been waylaid and murdered; since then, my worst fears
have been realized, for after a search of two weeks, his body was
found buried in the sand on the bank of the Piastla River, some ten
miles above the mouth of Candalaro Creek, near where he had been
murdered. At the time of the discovery of the body it was in such
an advanced state of decomposition that it was impossible to
ascertain the manner in which he had been killed. His mule, pistol,
and clothing have not yet been found; the mule is, however, likely
to turn up, as it had our hacienda brand 'U.S.' on the left
shoulder. These facts were promptly laid before the commander of
the Liberal troops at San Ignacio, Senor D. Jesus Vega, who took
great interest in the matter and promised to use all the means in
his power to discover the murderers and bring them to justice, and
he has had arrested and placed in confinement two men charged with
the crime, and his soldiers are in pursuit of the third. These we
are assured will be tried by court-martial, and if found guilty
will be summarily executed. Mr. Grove, I think, lost his life by
imprudence in talking; he had resided in Mexico for six or seven
years, spoke the language quite fluently, and ought to have
understood the character of the people. I had nominally purchased a
train of pack mules in Mr. Grove's name, and sent him to San
Ignacio to obtain a permit for them to pack for me, and a guarantee
that they would not be taken by the army; he succeeded in getting
these documents and was on his way home to take possession of the
mules and start them to packing; he passed the night previous to
his death at the house of one Meliton at Techamate, the place where
you will recollect we stopped for dinner on our first trip up,
where we had quite a quantity of watermelons. This man Meliton had
a bad reputation, was some years ago convicted of murder and
robbery and sentenced to be executed, but got clear by bribery.
Grove told this man of his purchase of the pack train, and that he
was to
Page 175 U. S. 476
pay $4,000 for it, and was on his way to take possession of it
and start it to work, thus leaving the impression that he had this
sum of money with him. Now while I do not think that Meliton
committed the murder, I have no doubt of his having planned it and
arranged for it to be done, and the imprudence of Mr. G. in telling
this man the circumstances above mentioned, in my opinion, was the
cause which led to his murder, which was effected between Techamate
and Tenchuguilita, about midway between the two places."
In a subsequent report to Garth under date of April 10, 1866, he
said:
"I wrote you fully in my last letter detailing the circumstances
of the murder of Williams Grove and the finding of his body. Since
then, the Liberal authorities have taken the matter in hand and
arrested one of the murderers at this place. The villain was
actually in our employ, doubtless for the purpose of ascertaining
when an opportunity should offer to waylay and murder another of
our men if the prospect for plunder was sufficient to warrant the
risk. When the officers arrested him, I had him conveyed to the
blacksmith shop and securely ironed. The next day he was conveyed
to San Ignacio and thence to Cosala, where he was tried. We failed
to convict him for the murder of Grove, but was convicted for the
murder of a woman, who he killed previously, and sentenced to be
shot, and before the execution of the sentence he confessed the
murder of Grove, and revealed the names of his two confederates;
these two would have been arrested before this but for the
expulsion of the Liberals from the country. Now we will have to
wait for the Imperialists to put their officers in power before we
can act any further in the matter."
These letters were not before the commission. If they had been,
that body could not have attached any importance whatever to the
statement in Bartholow's deposition of 1874 to the effect that the
murder of Grove was committed by soldiers of the Republican army,
or to the charge in the company's memorial that such murder "was
made matter of boast by Mexican officials."
Another of the outrages alleged to have been committed
Page 175 U. S. 477
by the Mexican authorities and to have resulted in driving the
La Abra Company from its property was described in the original
evidence as the robbery of Scott, one of its employees. That
evidence indicated that the robbery was by the military authorities
then in control in the locality of the mines. Referring to "the
military authorities of the Republic" under the command of General
Corona, Bartholow stated in his deposition of 1874:
"One of the employees of the company, who had been sent to
Mazatlan on business, was robbed by said military authorities, near
Camacho, in Sinaloa, while on his return from Mazatlan to the
company's works, of $1,178 of the moneys of the company, which
amount never was repaid to the company, nor was the company ever
indemnified for the same in any way. I recollect the exact amount
taken because I entered the same on the books of the company,
charging the same to the 'robbery account,' where other 'prestamos'
and robberies were entered. The name of this employee who was so
robbed of the company's money was George Scott, commonly called
'Scotty.' This transaction was nothing less than highway robbery by
said troops, and was in addition to the several 'prestamos' levied
and enforced by the military authorities, which, I have said,
ranged from $300 to $600. The amount of cash 'prestamos,' so levied
and enforced during my said superintendence, amounted to a little
more than $3,000, but the value of the mule trains and supplies so
taken from the company by the said military while I was
superintendent was not less than $25,000."
The same incident was described in an affidavit made in 1870 by
a witness for the company named Clark, who was a contractor for the
company while Bartholow was in charge of its property. He said that
he knew
"of other abuses of said company by the military authorities
aforesaid; that in the early part of 1866, an employee of said
company, whose name, deponent believes, was George Scott (called
'Scottie'), who was on his way from Mazatlan to the works of the
company in Durango, was met in the road by an armed party of
Page 175 U. S. 478
the said military, between Mazatlan and deponent's residence in
Camacho, and said armed party of troops, of the Republican army of
Mexico, did, by force of arms, take from said Scott, or 'Scottie,'
about twelve hundred out of three thousand dollars in gold coin
($3,000), Mexican ounces, 187 1/2 ounces, which money belonged to
said 'La Abra Silver Mining Company,' and was being transported to
said company by the said 'Scottie,' who appealed to deponent to
visit, with him, the headquarters of the army in that district, and
to ask General Guerra to return said money, or to receipt for it,
in order that he might have something to return to said company;
that deponent did so visit General Guerra's headquarters with the
said 'Scottie,' but was informed by the commanding officer that he
could not give up said money. After said Scottie had wasted two or
three days to obtain some kind of acknowledgment of the taking of
said money, he became disgusted, and returned to report the facts
to his company at Tayoltita."
How differently this affair was regarded at the time by
Bartholow is shown by his report to Garth, to be found in the
letter book, under date of April 10, 1866. In that report,
Bartholow spoke of the difficulties he had met and overcome, and
stated that a demand for taxes amounting to $3,000 or $4,000 had
been easily met after corresponding with the collector of taxes, by
the payment of $30, and that there was no necessity of troubling
General Corona with the matter. He proceeded:
"In consequence of the unsettled state of the country and the
presence of bands of robbers on and near the roads leading from
here to the port, I have had a great deal of trouble to get money
from time to time transported to pay my hands and other expenses,
and in consequence I was, of course, unwilling to risk any very
large sum at one time; yet when we were getting timber and doing
other work which required a great many Mexican laborers, we
frequently needed $1,000 per week, and, of course, all that the
proceeds of the sales of goods did not supply had to be brought
from Mazatlan, but I so managed it that we never had more than from
$1,500 to $2,000 at risk at one time, and all came through safe
except in one case. This
Page 175 U. S. 479
occurred some two weeks ago, when I sent Mr. Scott to San
Ignacio to settle our taxes with the authorities. I gave him a
check on Messrs. Echeguran, Quintana & Co. for $1,000 to bring
up. Besides this, he had some money outside of this sum which was
left after paying the taxes in San Ignacio. He got the money as
directed and started out of Mazatlan to overtake a train which was
bringing up some supplies for us and Mr. Rice, and when about
twenty miles out from the port, near the Town of Comacho, six or
eight armed men sprang into the road and with their guns leveled
upon him forced him to dismount, and robbed him of $1,178 in money,
his pantaloons and boots (the latter, however, being No. 12, were
too large for any of the villians, and were returned). He
immediately informed the nearest commander of the Liberal forces of
the fact, who sent for him for the purpose of identifying the
robbers. He complied, but could not find them, for the reason that
the officer could not find even half his men. I also at the same
time opened a correspondence with General Corona through the
prefect, Colonel Jesus Vega at San Ignacio, who by the way is, I
think, one of the most perfect gentlemen I have met in the country,
and I am of the opinion that but for the turn in military affairs
which occurred a few days since, we would in some way or other have
been reimbursed for the loss, but now I have no hopes whatever, and
we may as well charge up $1,178 to profit and loss."
Can the statements in that report be reconciled with the
declaration in the affidavit of Clark and in the deposition of
Bartholow, that the robbery of Scott was by the military
authorities of the Republic under General Corona? We think not. The
affair as described in that letter could never have been made the
basis of a finding that would place the responsibility for this
robbery upon the public authorities then holding control in
Mexico.
We now refer to a matter occurring during the superintendency of
De Lagnel. It was referred to in argument as the Valdespino forced
loan. Alluding to this exaction in his deposition, taken in
rebuttal while the case was being prepared for the commission, and
being asked whether it was paid by
Page 175 U. S. 480
him, and if not, by whom, Exall said:
"It is untrue that any part of it was paid by me, voluntarily or
otherwise. I was not superintendent until September, 1866, and this
loan was made in July, 1866, when Colonel De Lagnel was
superintendent, as will be seen by the order addressed by said
Valdespino to Colonel De Lagnel, and to the best of my
recollection, the whole amount, $1,200, was required of and paid by
said De Lagnel."
Granger, in whose charge the property was left by Exall in the
spring of 1868, made an affidavit in 1870 which the company used
before the commission in support of the charge that the Mexican
authorities had imposed upon it forced loans or prestamos. He
said:
"Said company was also forced to pay 'prestamos.' A letter was
received by Colonel De Lagnel, superintendent of said company, from
Colonel Valdespino, of the Republican army of Mexico, dated July
27, 1866, and signed 'Jesus Valdespino,' which came into my
possession as clerk of the company, and which letter has never,
since its receipt, passed out of my possession, and I now present
the same to the consul, marked 'Exhibit Z.' This letter demands
twelve hundred dollars ($1,200) from said company for the support
of his forces under his command. It is needless to say the demand
was complied with."
Here we have a distinct assertion by the company, through its
witnesses, that this demand to pay $1,000 was met by the company.
The fact was just the reverse, as must have been known to some of
the representatives of the company who were accredited by it to the
commission as witnesses having knowledge of the facts. On the day
succeeding the receipt of Valdespino's letter, Colonel De Lagnel
wrote to the Gefe Politico of the San Dimas mines as follows:
"In due time reached me your communication of yesterday in
regard to a loan or tax which you exact from the residents of the
district for the support of the forces of Colonel Valdespino, and
having noticed the contents thereof, I answer it forthwith. I send
you part of the articles I have and which you ask me for, hoping
that they be useful and acceptable to you. As regards the cash, I
am sorry to inform you that it is impossible for me to send you
even a little, because I have not here the
Page 175 U. S. 481
necessary amount to defray my many and constant expenses. I
request you to consider that this hacienda has brought the county
thousands and thousands of dollars, most of which have been spent
among the needy people of this district, and a considerable part in
duties paid into the treasury of the district, under whose flag
Colonel Valdespino is serving. As it is public and well known, not
a single dollar have we received of this sum up to date. I send you
two pieces of blue mohair and two pieces of bleached cotton, valued
at $65.75, of which amount be pleased to send me the corresponding
receipt, in order that it may serve me as a voucher to the company
I have the honor to represent."
At the same time, De Lagnel wrote to Colonel Valdespino:
"Your favor of yesterday informs me of the sad situation in
which you find yourself for the lack of resources and of your
intention to procure them preparatory to leaving the district.
Understanding the great need that you are in and considering, as
you yourself state, the many evils that we would suffer if you
should bring your forces here, I do all I can to overcome the
difficulties, and I have sent to the political chief of the
district two pieces of mohair and two of bleached cotton, those
being the only things among the necessary things mentioned which I
have. It is impossible for me to contribute with money in order to
provide you with what you need today. Be pleased to consider that
our reducing works are not complete, and therefore unproductive,
without reckoning the many expenses that we yet have to make, the
proximity of the rainy season, the scarcity of money, and the
abnormal political situation, which cannot but cause us serious
damages. I am not therefore in a condition to accede, as you
desire, to the wishes of the political chief, but have sent him
what I have, hoping that they be accepted as a token of my
goodwill. I suppose that having contributed with what I can, I may
as a matter of course resume my work without fearing the
interruption that would be caused by the arrival of armed
forces."
But this is not all the evidence on this point. De Lagnel, under
date of July 31, 1866, wrote to Rice, the superintendent of the
company at San Dimas, saying: "As to the
Page 175 U. S. 482
forced, voluntary (?) loan, it was an impossibility to meet the
demand, and I so stated in my note to the prefect."
If any additional evidence were needed to disprove the statement
before the commission that the company by its agent had met and
paid the levy of $1,200 by Valdespino to be used in supporting his
troops, it is found in De Lagnel's deposition taken in this cause.
His attention being called to the reference in the letter book to
this levy or forced loan, he said:
"I received from the civil officer in San Dimas, and also at the
same time from Colonel Valdespino, letters, both bearing on the
same subject. He had come into the vicinity with a command of
cavalry -- Liberal cavalry -- destitute. The mules were broken down
by coming over the mountains. They wanted food and clothing and
money, and they wrote to me, saying that they had apportioned it on
the two mining companies, the one at San Dimas and the one with
which I was connected, levying one quarter upon us, and the other
half was to be borne by the citizens. I was advised to comply. They
wanted $300, if I recollect right, in money. I didn't have the
money to give them, and didn't intend to give it even if I had it.
. . . I sent them a few goods -- some stuff they wanted, blankets
and hats. I sent them some goods, cotton goods, and wrote a
courteous note to each one of them, expressing regret that I could
not comply with their wishes, and stating that we had no money,
because the mines had never turned out a dollar. They wrote me an
acknowledgment and sent a receipt for the goods and courteous
acknowledgments. That was the end of it."
There are many other specific matters discussed in the elaborate
briefs of counsel. To consider each of them and show the grounds
upon which our conclusions rest would extend this opinion far
beyond all proper limits. There were undoubtedly some unpleasant
occurrences, such as the affair between Exall and Perez, a local
judge, growing out of a misunderstanding by the letter of Exall's
order to him to keep out of a particular room at the mines. But
none of those occurrences had any real connection with the
abandonment by the company of its mining property in Mexico, and,
as is
Page 175 U. S. 483
evident from the new proof adduced in this cause, they were
described by the company and its witnesses in the testimony before
the commissioners in such exaggerated terms as to justify the
charge of fraud made in the bill filed by the government.
What does the letter-impression book disclose as the real cause
of the company's abandonment of its mines?
In the reports made by Bartholow, the first superintendent, to
Garth, of February 6, March 7, and April 10, 1866, no statement is
made which even by inference showed that any difficulties were in
his way that had their origin in the acts or conduct of the public,
civil, or military authorities of Mexico. On the contrary, one
letter shows that he obtained military protection for the mill
transported from Mazatlan to the mines, and another one that he had
pleasant relations with the civil and military authorities of the
locality.
Looking next at the reports of De Lagnel, the second
superintendent, we find a letter of July 6, 1866, from him to
Garth, showing that there was then a heavy outstanding indebtedness
against the company that compelled the superintendent not only to
lessen expenditures, but to reduce the working force nearly
one-half, and pay the workmen for their services, one-half in cash
and one-half in goods. Under date of October 8, 1866, De Lagnel
wrote:
"I am troubled exceedingly that better success has not attended
my efforts, but the rainy season has proved a sore trial to my
patience and been a serious drawback. I have striven to meet your
wishes and expectations, and regret that my success has not been
commensurate with my efforts to serve you and discharge my duties.
As to sending a successor, I deem it best to tell you now that no
money could tempt me to remain in this country longer than next 1st
March."
On the 17th of November, 1866, De Lagnel wrote from Mazatlan to
Garth:
"Had nothing occurred to interrupt the work, I feel sure that at
this time the mill would be in operating, and the proofs at last
being developed. Unfortunately, I was unable in September or
October to communicate with this place, and the ready money giving
out at the hacienda, the workmen (not miners)
Page 175 U. S. 484
refused to continue and left, thus bringing the ditch-work to a
standstill. . . . In the utter impossibility of obtaining aid here,
I have, despite the tone of your letters, drawn upon you for the
sum of $7,000. I feel sure that you will experience no greater
feeling of annoyance in receiving the intelligence than I do in
communicating the fact; but after debating the thing long and
carefully, I am satisfied that it is the best course to pursue.
Longer delay in executing the work would be most injurious, perhaps
fatal. . . . At present, the mine is, I may say,
bare of
metal. A few days before I left, metal had been struck again,
but in so small a quantity as to forbid much hope."
Under date of January 5, 1867, De Lagnel wrote again to Garth
from Mazatlan:
"In your latest letter, the 20 Nov'r, you there informed me that
you can meet no further drafts upon you; yet I had already, about
the 17 Nov'r, drawn on you as treasurer for the sum of seven
thousand dollars. I wrote to you fully by the same mail, and hoped
to be able to send the letter via Acapulco, and thus reach you
before the draft. In this I was disappointed, and, my letters
having gone via S. Francisco, will reach you at the same time that
the d'ft comes in for payment. I trust that, despite what you say,
you will find some way to satisfy the draft, for if it goes to
protest, it will be of incalculable injury to the best interests of
the Co. To me, the consequences of such a thing would be both
mortifying and most embarrassing, but to the comp'y's interest they
would prove far more serious. It is therefore that I urge upon your
serious consideration the interest at stake, and pray that a prompt
settlement be given upon presentation."
De Lagnel was again in Mazatlan on February 5, 1867, and on that
day wrote to Garth, saying:
"I had hoped, and fully expected, to be able by this time to
send forward some return for the outlay incurred by the company in
the prosecution of its enterprise; but am disappointed in not yet
having succeeded in bringing on the water in sufficient quantity to
drive all the machinery. . . . The supplies laid in during the past
year being in great part exhausted, and a new supply
Page 175 U. S. 485
being absolutely necessary to keep the mines, etc., going, and
there being necessity for ready money in order to purchase the
requisite supplies, I have drawn upon you for $7,500 in favor of
the Bank of California. This I would not have done had it been
possible to do otherwise; but no assistance can be had in this
country. I have satisfied myself on this point, and had only the
alternative to stop operations or draw on you."
We come now to the period during which Exall was superintendent.
His reports to Garth, as the representative of the company, and
Garth's letters to him, make it clear that its bankruptcy was all
the time imminent, and the time near at hand when all work at the
mines would be suspended not because any obstacles were put in the
way of the company by the Mexican authorities, but solely because
it was without money to employ in developing the property.
The first letter written by Exall shows that the financial
situation at the mines was such as to require the utmost economy on
the part of the company's superintendent.
Under date of May 6th, 1867, after De Lagnel departed for New
York, Exall wrote:
"I have, as far as I think safe, reduced the number of hands at
the mines, keeping only a sufficient number to show that they are
still being worked. I have a light force in the Christo; no
improvement in the metal; a light force in the La Luz; the metal
about the same. . . . I have discharged a greater portion of the
hacienda hands."
On the 10th of May, 1867, Garth wrote to Exall a letter in
which, after expressing the hope that De Lagnel would soon arrive
at New York, he said:
"The affairs of the company here are much embarrassed; a few of
the directors have advanced all the money to carry on the
operations, and have been nearly ruined by it, and are not able to
afford any further aid from here, and look anxiously to be
reimbursed very soon from the products of the mine, and it is hoped
that your best energies will be exerted to afford relief."
Again, under date of May 20, 1867, Garth wrote to Exall, and
referring to De Lagnel's draft for $7,500 said:
"This draft
Page 175 U. S. 486
arrived on 2d April last, and was paid by one of the directors
of the company, as it was considered that was surely the last that
would be needed, and we expected to return the money by an early
remittance of bullion from Mexico. You can judge of our surprise
and chagrin when the last steamer arrived, instead of bringing
Colonel De L. with some fruits of our works, a draft for $5,000 in
gold was presented for payment by Lees & Waller, drawn by De
Lagnel, favor Bank California, and dated 10th April last, and of
which we had not received any notice or advice whatever, and have
not yet received any. As I had so often and fully advised the
superintendent of the condition of affairs here, and requested him
not to draw further, I was much surprised that he did so, and that
without giving any notice or reason for so doing. As it was found
impossible to raise the means to pay this draft, it was protested
and returned unpaid, and you must make some provisions for its
payment when it gets back. I do trust that before that date you
will have plenty of means to do so. I would now again repeat that I
have made every effort possible to raise the money here and have
failed, and I have advanced all I can possibly do, and the other
directors have done the same; the stockholders will do nothing, and
it is probable the company will have to be sold out and
reorganized."
This was followed by a letter from Garth to Exall of date May
30, 1867, in which it was said:
"We wrote to you on the 20th instant informing you that we had
nothing from you or Colonel De Lagnel, but that a draft drawn by
Colonel De L. from Mazatlan, 10th April last, had been presented,
and there being no funds on hand and no means here of meeting it,
that it was protested and returned not paid; it is hoped by the
time it gets back, you will be prepared to meet it. Since my last
letter, Colonel De Lagnel has arrived and made known to us
something of the state of things with you. I must confess that we
are amazed at the results; it seems to me incredible that everyone
should have been so deceived in regard to the value of the ore, and
I can but still hope that the true process of extracting the silver
has not been pursued, and that, before this time, better results
have been attained. . . . All expenses
Page 175 U. S. 487
must be cut down to the lowest point, and you and Mr. Cullins
must try and bring this enterprise into paying condition if the
thing is possible -- at any rate, no further aid can be rendered
from here, and what you need must come from the resources you now
have. Neither must you run into debt; cut down expenses to amount
you can realize from the mines. I cannot yet say what can be done
in the future; no meeting of the stockholders has been held, and
nothing done to pay off the debts here, now pressing on the
company. For the present, all I can say is that the whole matter is
with you; take care of the interests and property of the company;
don't get it involved in debt, and advise us fully of what you are
doing."
Garth wrote again, June 10, 1867:
"We have not heard from you since Colonel De Lagnel left Mexico,
but hope that you are well and getting along as well as could be
expected. The account that Colonel De L. gave us of the quality of
the ores on hand was most unexpected, and a fearful blow to our
hopes. We trust, however, that a fuller examination will show
better results. We have in previous letters to you and to De Lagnel
so fully informed you of the condition of affairs here that it is
hardly necessary to say anything further on that subject. There is
no money in the treasury, and we have no means of raising any, and
a few of us have already advanced all that we can do, and you have
been advised that the draft last drawn by De L., on 10th April, was
returned protested, and I hope you will be able to take it up when
it gets back, promptly. Everything now depends upon you, and to
your judgment, energy, prudence, and good management of the
resources in your hands, and we hope you will be able to command
success."
So straitened were the circumstances of the company at that time
that it was sued in New York on promissory notes past due (one of
the notes being held by an assignee of Garth), and it permitted
judgment on them by default in July, 1867, for the sum of
$53,653.50. Manifestly that suit was instituted with the consent,
if not by the direction, of the officers of the company who had
charge of its affairs in New
Page 175 U. S. 488
York, who were aware of its financial embarrassments and knew
that it must soon suspend business and go into liquidation.
By a letter of June 11, 1867, Garth was informed by Exall that
he had been compelled to draw on him for $3,000. The latter's
letter of July 13, 1867, expressed regret that the draft made by De
Lagnel before he left for New York could not be paid, and
stated:
"All your previous letters to me were to follow out the
instructions given to Colonel De L. I took charge of affairs at a
time when the expenditure of money was absolutely necessary to
purchase supplies for the rainy season. Colonel De L. left me with
only moderate means to buy these various supplies; pay't of sundry
bills which were coming due, and pay of the workmen who had
accounts of three, four, and six months' standing."
On the 10th of July, 1867, Garth wrote to Exall:
"I had this pleasure on 30th May and 10th June last, after the
return of Colonel De Lagnel, and we had learned something of the
condition of affairs in Mexico. In these as well as in preceding
letters, you were fully advised of the condition of the company
here; that there had been no funds in the treasury for a long time;
that appeals had been made in vain for aid to the stockholders, and
that the parties here who had made heavy advances to the company
were anxious for its return, and refused to make any further
payments, and that the draft for $5,000 drawn on me as treasurer by
Colonel De Lagnel, on the 10th April last, had been protested and
returned to California, and, we suppose, to parties in Mazatlan who
advanced the money on it, and who would have to look to you for
payment of same, and we expressed the hope that by that time you
would have taken out sufficient money to meet it and all other
expenses, and hoped soon to have a remittance of bullion from you
to aid in payment of the large indebtedness here. . . . You will
see from all my letters that no further aid can be given you from
here, and that you must rely upon the resources you now have, and
which, we think, ought to be ample to pay off the debts and to
sustain you in current expenses, which you should cut down to
the
Page 175 U. S. 489
lowest possible point. . . . Don't run into debt or get into
difficulty with the authorities, if there are any such things
existing; but at the same time be firm in maintaining your rights,
and don't submit to imposition except by force, and then make a
legal and formal protest as a citizen of the United States and as
an American company duly organized and prosecuting a legitimate
business under the protection of the law, and our rights will be
protected by our government."
Garth wrote again on the 20th of July, 1867:
"The steamer is just starting, and I have only time to say that
your letter of the 11th, by private hand, has been rec'd, advising
us that you had drawn on me for $3,000 gold. In former letters you
will have learned the condition of things here, and that there is
no money to pay same, and that former dr'ft of De Lagnel has been
returned unpaid, and that you were urged to try and get along with
what resources you had. These letters, no doubt, reached you in
time to prevent your drawing, as no draft has been presented, and
we hope by this time there is no necessity for doing so."
Under date of October 6, 1867, Exall wrote to Garth:
"By this steamer I am in receipt of yours of 10th and 20th of
July and 10th of August. I was much disappointed that my urgent
demands for money were not favorably answered. I have complied with
the requests in your various letters in reference to giving you
exact information concerning affairs here. I now have to urge you
to send me means. I have heretofore been keeping above water by
using the stock which I fortunately had on hand; that is now
entirely exhausted. I have neither money, stock, nor credit. This
latter I would not use even if I had it, as in this country it is
an individual obligation. and no company affair. Now you must
either prepare to lose your property here or send me money to hold
it (and that speedily) and pay off debts of the concern. I have
worked as economically as possible, and have cut down expenses to
the lowest point. . . . I am working the mines with as few hands as
possible. What little good metal is taken out amounts to almost
nothing. The $5,000 draft of De Lagnel's was sent to a house in
this place to be collected, with instructions
Page 175 U. S. 490
to seize the property in case it was not paid. It troubled me a
great deal, and I had much difficulty in warding it off. The
concern to whom the draft was sent showed me his instructions and
also the original draft. Fortunately for the company, there was a
flaw in the draft; De Lagnel failed to sign his position, as
superintendent of the La Abra Silver Mining Company; simply signed
his name, making it an individual affair. This was the only thing
that kept them from seizing the property. I told them they could do
nothing with the property here, as the company were not obligated
on the draft. I have exhausted all the ore that I had on hand that
was worth working. That which I worked was very poor, and the yield
small. The La Luz, on the patio, won't pay to throw it into the
river. I have had numerous assays made from all parts of each pile;
the returns won't pay. Amparas are not now granted, and mines are
to be held only by working. I am compelled to keep men in mines
which yield nothing, merely to hold them. This I can do no longer,
as I have nothing to give the men for their labor, and must now
take the chances and leave the mines unprotected."
The same letter contains a statement as to the situation which
contrasts most strangely with the charge that the company was
prevented from successfully working its mines by the conduct of the
Mexican authorities. That statement was:
"By next steamer, will send you full statements of past months.
The returns from Durango were small. I turned it over to E. P.
& Co., as I was owing them. There is no difficulties about
authorities, boundaries, or anything else concerning the mines and
hacienda, provided there is money in hand, and money must be sent.
I hope I have urged this point sufficiently so that you may see fit
to send me something to hold the mines. I should be sorry to see
them lost on this account. Please telegraph me if you intend
sending money? I fear that before I can get a reply to this, that
something may have occurred. Of course, Colonel Le Lagnel informed
you the conditions and terms on which I took charge of affairs
here, which was the same that he was getting, and if I had known at
the time what difficulties I was going to have in procuring
Page 175 U. S. 491
means to keep the concern in motion, I would have refused on any
terms. I am much in need of money, as I wish to use it here. I
will, in a month or so, draw on you through Wells, Fargo & Co.,
San Francisco, for $1,500 -- please inform me by earliest
opportunity that you will meet the draft. . . . I hope that, before
this reaches you, that some steps will have been taken to procure
means to operate with."
On the 10th of October, 1867, Garth wrote to Exall:
"I am very sorry to say that it is not possible to aid you from
here, and that you must rely entirely upon the resources of the
mines and mill to keep you going and to relieve you of debts
heretofore contracted. It is not possible for us to direct any
particular course for you, but only to urge you to try and work
along as well as you can, cutting down expenses and avoid
embarrassing yourself with debts. The Bank of California has again
sent Colonel De Lagnel's draft here for collection, but it was not
possible to pay same, and it will have to return to Mexico, and we
do hope you will be able to make some satisfactory arrangement to
pay it."
Under date of November 17, 1867, Exall wrote to Garth from
Mazatlan:
"Yours of the 30th September is just at hand, and, contrary to
my expectations, contains nothing of an encouraging nature. I
expected after having previously written so positively in reference
to the critical state of affairs with me, that you would have sent
me by this mail some means to relieve me from my embarrassing
position. I have in former letters laid before you the difficulties
under which I was laboring and begged that you would send me means,
and was relying much on the present mail, expecting that some
notice would have been taken of my urgent demands for assistance to
protect the property belonging to the company. To add to my further
embarrassment, Mr. Cullins, whose time expired on the 16th inst. --
since my leaving Tayoltita -- (I left there on the 10th for this
point), intends to commence suit in the courts here for his year's
salary. I am endeavoring to get him to delay proceedings until the
arrival of the next steamer (don't know as yet if I will succeed in
getting him to delay), when I hope you will have seen the necessity
of acting
Page 175 U. S. 492
decidedly and sending means to prosecute the works and pay off
the debts of the company, or abandoning the enterprise at once.
Nothing can be done without a further expenditure of money. I am
now doing little or nothing in the mines, and will, when I return,
discharge the few men who are now at work in them. This I am
compelled to do, as I have no money and my stock is almost entirely
exhausted, and I fear if money isn't very soon sent, some of the
mines will become open to denouncement. In my last letter, I
mentioned the amount required for immediate demands, $3,000, which
must be sent out. By next steamer Mr. Elder, Slone, and Cullins, if
paid off, will sail for San Francisco; if not paid off, suit will
be commenced, and as I have no means to defend the case, fear it
will go against me. When these parties leave, the hacienda will be
left almost entirely alone, there being only myself, Mr. Granger,
who I am also owing, and I away most of the time. What you intend
doing must be done promptly. Please send me Mr. Cullins' contract
with you. The political state of the country just now is rather
discouraging. I hope by the time this reaches you will have rec'd
statement sent. Everything at mines as it was when I last wrote,
only more gloomy in appearance on ac't of not being able to employ
the people and put things in operation.
Please do something
immediately, and inform me as speedily as possible."
Still relief did not come to Exall, and he again wrote to Garth
from Mazatlan, under date of December 18, 1867, a most urgent
letter. It is here given in full:
"I arrived here a few days since. Received by steamer yours of
October 10, informing me of your inability to send me the means to
operate with and meet my obligations. I have in previous letters
expressed the condition of affairs with me, and begged that you
would do something. Thus far, I have been able to protect your
interests here, but affairs have gotten to such a point that I am
unable to do so longer without money. Mr. Cullins, who I informed
you in a former letter would leave, insisted upon doing so by this
steamer. He demands a settlement, otherwise he will immediately
commence suit, and had made preparations to do so. To keep the
matter from the courts,
Page 175 U. S. 493
I was compelled to borrow money to pay him off. The balance due
him, and the amount I had to borrow here, was $1,492. He has
troubled me a great deal -- has been exceedingly unreasonable. On
yesterday, the agent of the Bank of California informed me that he
received the draft by the last steamer (which arrived a few days
ago), and would immediately commence legal proceedings, and sent
the draft on to the courts here. I am utterly unable to oppose
them; first, I have no means, and, again I am not your agent here,
never having received a power of attorney from you, which will be
necessary, for I cannot act in these courts without it. The Bank of
California -- and will do something to recover the amount of the
draft before the amount is doubled by the expenses. For God's sake,
telegraph to pay them. Matters of this nature once getting in these
courts, it takes large sums to oppose them. The first steps taken
by the courts will be to send someone to the hacienda to see to and
secure everything there. This will, of course, stop everything and
make it impossible for me to protect your interests. For your own
sake in the matter, pay them before things go further. My position
is extremely embarrassing, and I know not what to do, and will have
to be guided entirely by circumstances. I will, of course, do
everything in my power, and may have to act in a very cautious
manner, and will probably act in a manner which may occasion
censure. Now, all I ask of you is to judge my actions justly, and
consider my circumstances, and believe I am doing the best for your
interests. I am doing nothing at the mines, and have only one
person left with me. Please attend to this matter promptly. I am
writing very hurriedly, as there is a war steamer just leaving San
Francisco, which will arrive there some days prior to the regular
mail. I leave for the mines in a few hours. Attend to this at once
and telegraph me."
Exall still failed to hear anything of an encouraging character
from the company. He again wrote most urgently to Garth on the 24th
day of January, 1868, as follows:
"I came down to meet steamer from San Francisco in hopes of
receiving letters from you; I received none, and now, being
entirely
Page 175 U. S. 494
out of funds and stock, and being sued by agents from Bank of
California for the payment, have to let things take their own
course, as I am unable longer to protect your interests here. In
previous letters, I gave you a full and detailed accounts of
affairs here, and such frequent repetitions I find useless, and
will simply state that I am doing nothing whatever at the mines,
and cannot until I receive money to operate with. I haven't means
to protest now, and they are liable to be denounced at any moment.
Some months since, I wrote you for titles; the government demanded
them; they have not been received. By steamer I sent you a telegram
from San Francisco; no reply. The parties I sent the dispatch to in
San Francisco sent it on to New York. I am owing considerable, and
no means of paying. What is your intention? Is it to let your
interests here go to the dogs? You have either to do this or send
money out to protect them. If by next steamer I receive no
assistance from you, I intend leaving for the east. I will go via
San Francisco, will from there telegraph you what further steps I
shall take. I have been doing everything in my power to keep the
Bank of California from getting possession; thus far, have
succeeded, but can prevent them no longer, and fear they will
eventually have their own way. Mr. Cullins (who is not the man he
was represented to be) left by last steamer. I have only one man
now; am compelled to keep someone. Please telegraph me in San
Francisco, care of Weil & Co., immediately on receipt of this.
You can judge by what has been done in New York and send me whether
or not I may have left. Please let me know your intentions."
The situation had become financially so discouraging to Exall
that he determined to leave the mines and return to New York. So.
under date of February 26, 1868, he wrote to James Granger, who
sometimes called himself Santiago Granger, and who was at the
mines, this letter:
"As circumstances are of such a nature as to compel me to leave
for San Francisco, and probably for New York to inquire into the
intentions of this company, I place in your hands the care and
charge of the affairs of the La Abra S. M. Co., together with
Page 175 U. S. 495
its property. You are invested hereby with all power confided to
me, of course, acting in all your transactions with an eye to the
interests of the company. This will, to you, should occasion
require it, be ample evidence of the right possessed by you to act
in their behalf."
Notwithstanding the execution of this paper, Exall testified in
his deposition taken before the commission in 1874 as follows:
"I did not leave said mines, hacienda, or property in charge of
said Granger, or any other person, nor did I give any charge,
control, powers, or authority of or over the same, or any part of
the same, to him, or anyone else, and if he, or any other person,
has taken charge or control of said mines, hacienda, and property,
or of any of it, or has sold, used, or in any way disposed of any
of it, each of such acts was without any power or authority or
right whatever to do so, so far as any act by me or for me, or on
my part, as superintendent or otherwise, is concerned."
We also find in the record a letter from Exall, written from New
York to Granger under date of May 8, 1868, in which the writer
says:
"Of course, on the first day of my arrival here, I saw nothing
of the company. The day after, I went down and saw Garth. Had a
long talk concerning affairs, and, contrary to our expectations,
gave me no satisfaction; didn't seem to intend to do anything more.
I have seen him several times, but have got nothing from him of an
encouraging nature. He seems disgusted with the enterprise, and, so
far as regards himself, intends to do nothing more, or have nothing
more to do with it. . . . I wish I could send you some means to get
along with, knowing you must be having quite a rough time, but am
unable. I expected to be paid up here; its not having been done
plays the devil with my arrangements."
Among the letters now produced in evidence is one from Granger,
written from Tayoltita under date of August 12, 1868, to Senor Don
Remegio Rocha. That letter was in these words:
"I have received the communication calling upon this company to
pay $52.50 each month for taxes imposed by the legislature of the
state, and presume it to be correct; but, as I am only acting in
the absence of the superintendent, and as there is no money nor
Page 175 U. S. 496
effects to pay this tax, I beg you to wait until the month of
November at which time said superintendent is to come, and then the
sums due by this company on account of this tax will be paid."
From the above and other evidence in the record, it is certain
that, before the La Abra Company ceased to work the mining
property, it had become utterly bankrupt, and that its abandonment
of all operations at the mines was due to its inability from want
of funds to carry them on, and to the belief, founded upon the
experience of two years and more, that the mines, if not entirely
worthless, were not of sufficient value to justify its owners in
proceeding further in their development. If the proper working of
the mines while Bartholow, De Lagnel, and Exall were successively
in charge of them was prevented by the acts or omissions of duty on
the part of the public authorities of Mexico, surely that fact
would have been disclosed by the letters or reports made to the
company by its several superintendents. The demand made during that
time by the company's representatives in charge of the mines was
not for military or civil protection, but for the money needed to
develop the property and to meet the debts incurred at the mines
during the progress of the work there. We do not doubt that the
situation was accurately described by Exall when, in the above
letter to Garth of October 6, 1867, he reported that
"there are no difficulties about authorities, boundaries, or
anything else concerning the mines and hacienda, provided there is
money on hand, and money must be sent,"
and when in his letter of November 17, 1867, he endeavored to
impress Garth with
"the necessity of acting decidedly and sending means to
prosecute the works and pay off the debts of the company, or
abandoning the enterprise at once."
In that condition of affairs, it is not strange that Exall in
the letter of January 24, 1868, just before he left Mexico for New
York, wrote to Garth:
"I am owing considerable and no means of paying. What is your
intention? Is it to let your interests here go to the dogs? You
have either to do this or send money out to protect them."
We have seen that Garth, as the representative of the company,
in
Page 175 U. S. 497
a letter to Exall, dated July 10, 1867, warned him against
running into debt and getting into difficulty with the authorities,
"if there are any such things existing;" "but," he continued,
"at the same time be firm in maintaining your rights, and don't
submit to imposition except by force, and then make a legal and
formal protest as a citizen of the United States and as an American
company duly organized and prosecuting a legitimate business under
the protection of the law, and our rights will be protected by our
government."
Now it does not appear that there was any formal protest before
the United States Consul at Mazatlan by any representative of the
company to the effect that the Mexican authorities had so acted or
failed in duty as to compel it to abandon its property in Mexico.
If the company's superintendents had any such view of the situation
when they returned to the United States and gave an account of
their management of the property, how natural it would have been
for the company, in some formal way, to have promptly brought the
whole matter to the attention of the government of the United
States, and sought its aid in order to have justice done to them by
the Republic of Mexico. No such course was taken, and we cannot
doubt, in view of the evidence adduced after the commission made
its award, in connection with the evidence before that tribunal,
that the idea of attributing the losses of the company to the
wrongful conduct of the Mexican authorities never occurred to the
company until after the organization of the commission, long after
the arrival of Exall in New York. In March, 1870, the company for
the first time gave notice to the Department of State that it had
any claim against the Republic of Mexico. It then claimed only
$1,930,000. A few months later it increased its claim to
$3,000,030, and before the commission concluded its labors, it
amended its claim and fixed it at $3,962,000.
One point in connection with the letter-impression book cannot
be passed without notice. It is contended that what passed between
Garth and the superintendents in charge of the property, in the
form of letters or reports by the letter to the former, was not
admissible in evidence against the company.
Page 175 U. S. 498
This proposition cannot be sustained. The superintendents placed
at the mines were its representatives in charge of the company's
property. What they did at the locality of the property in and
about its management were the acts of the company so far as those
acts were within the scope of the business entrusted to them. So
what they said while engaged in managing and with reference to the
management of the property, particularly what they reported to
their principal in respect to the condition of the property and
their acts in the course of the business, constitute part of the
res gestae of the controversy between the parties. The
vital inquiry in this cause is whether the company's
representatives at the mines were prevented by the Mexican
authorities from developing and working them, whereby it was forced
to abandon the property. Surely what those representatives said and
did or forbore to do at the mines, bearing upon that inquiry, would
have been part of the
res gestae, and admissible in
evidence against the company. Upon like ground, their written
reports or letters to the company while in charge of the property
and in respect of its management are admissible in evidence so far
as they bear upon the same inquiry and constitute a part of the
res gestae. The rule, we think, is accurately stated by
Greenleaf, who, after saying that the act of declaration of each
member of a partnership in furtherance of the common object of the
association is the act of all, because by the very act of
association each one is constituted the agent of all in respect of
the common business, says:
"A kindred principle governs in regard to the declarations of
agents. The principal constitutes the agent his representative, in
the transaction of certain business; whatever, therefore, the agent
does in the lawful prosecution of that business is the act of the
principal whom he represents. And"
"where the acts of the agent will bind the principal, there his
representations, declarations, and admissions respecting the
subject matter, will also bind him, if made at the same time, and
constituting part of the
res gestae."
"They are of the nature of original evidence, and not of
hearsay; the representation or statement of the agent, in such
cases, being the ultimate fact to be proved, and not an admission
of
Page 175 U. S. 499
some other fact. But it must be remembered that the admission of
the agent cannot always be assimilated to the admission of the
principal. The party's own admission, whenever made, may be given
in evidence against him, but the admission or declaration of his
agent binds him only when it is made during the continuance of the
agency in regard to a transaction then depending
et dum fervet
opus. It is because it is a verbal act, and part of the
res gestae, that it is admissible at all, and therefore it
is not necessary to call the agent himself to prove it; but
wherever what he did is admissible in evidence, there it is
competent to prove what he said about the act while he was doing
it, and it follows that where his right to act in the particular
matter in question has ceased, the principal can no longer be
affected by his declarations, they being hearsay."
Vol. 1, § 113.
See also Story, Agency, §
134.
Upon a careful scrutiny of all the evidence, we are of opinion
that, so far from the Mexican government's being legally
responsible for the losses falling upon the company, its investment
was without profitable results because the company did not have or
did not furnish to its superintendents at the mines the funds
required for their successful development, and did not find the
property to be as valuable as they had supposed. All this is
apparent from the reports made from time to time to the company by
its superintendents, duplicate originals of which are to be found
in the letter-impression book which was not before the commission.
The identity of that book is fully established, and the Mexican
Republic is not fairly chargeable with negligence in not having
discovered it sooner. It is certain that that government, within a
reasonable time after it received the book, delivered it to the
Department of State, and called attention to the important and
vital facts disclosed by it, so that the United States could take
such action as its sense of duty suggested.
Our conclusion is that the question stated in the act of 1892 --
whether the award in question
"was obtained as to the whole sum included therein, or as to any
part thereof, by fraud effectuated by means of false swearing or
other false
Page 175 U. S. 500
and fraudulent practices on the part of the said La Abra Silver
Mining Company, or its agents, attorneys, or assigns,"
must be answered in the affirmative as to the whole sum included
in the award. That company placed before the commission a state of
facts that had no existence, and which we are constrained by the
evidence to say its principal representatives must have known had
no existence, but which, being credited by the commission under the
evidence adduced before it, brought about the result complained of
in the bill. The whole story of losses accruing to that company by
reason of wrongs done by the authorities of Mexico, is, under the
evidence, improbable and unfounded. We do not wish to be understood
as saying that the company did not meet with losses on account of
its investments in this mining property. But we do adjudge that it
had no claim which, upon any principle of law or equity, it was
entitled to assert against the Republic of Mexico.
The decree below is
Affirmed.
MR. JUSTICE GRAY did not hear the argument on the facts and took
no part in their consideration. MR. JUSTICE McKENNA took no part in
the decision.
*
I. PUBLIC ACTS: 1862, 12 Stat. 632, c. 4;
id., c. 5;
id., c. 6; 1866, 14 Stat. 374, c. 5; 1868, 15 Stat. 266,
c. 4; 1869, 16 Stat. 61, c. 4;
id., c. 5; 1872, 17 Stat.
400, c. 12;
id., c. 13;
id., c. 14;
id.,
c. 15;
id., c. 17; 1873, 18 Stat. 1, c. 3; 1874, 18 Stat.
293, c. 7;
id., c. 8;
id., c. 9;
id., c.
10; 1875, 18 Stat. 294, c. 12; 1875, 19 Stat. 1, c. 1; 1879, 21
Stat. 59, c. 1;
id., c. 2; 1880, 21 Stat. 311, c. 4;
id., c. 5;
id., c. 6;
id., c. 7;
id., c. 8;
id., c. 9;
id., c. 10; 1884,
24 Stat. 353, c. 9; 1887, 24 Stat. 354, c. 11;
id., c. 12;
id., c. 13;
id., c. 14;
id., c. 15;
id., c. 16; 1888, 25 Stat. 638, c. 7;
id., c. 8;
1889, 25 Stat. 639, c. 18; 1892, 27 Stat. 409, c. 14;
id.,
c. 15;
id., c. 16; 1894, 28 Stat. 595, c. 8,
id.,
c. 9;
id., c. 10;
id., c. 11;
id., c.
12;
id., c. 14;
id., c. 15; 1897, 30 Stat. 226,
c. 3.
II. JOINT RESOLUTIONS: 1869, 16 Stat. 368, No. 5;
id.,
No. 6; 1872, 17 Stat. 637, No. 1; 1878, 20 Stat. 487, No. 1;
id., No. 2;
id., No. 3; 1883, 23 Stat. 265, No.
3; 1885, 24 Stat. 339, No. 2;
id., No. 3; 1893, 28 Stat.
577, No. 7; 1894, 28 Stat. 967, No. 2.
III. PRIVATE ACTS: 1873, 18 Stat. 529, c. 2; 1874, 18 Stat. 529,
c. 4; 1879, 21 Stat. 531, c. 3; 1880, 21 Stat. 601, c. 11;
id., c. 12;
id., c. 13;
id., c. 14;
1884, 23 Stat. 615, c. 6; 1885, 24 Stat. 653, c. 1;
id.,
c. 2; 1886, 24 Stat. 881, c. 10; 1887, 24 Stat. 882, c. 17;
id., c. 18;
id., c.19;
id., c. 20; 1888,
25 Stat. 1251, c. 9;
id., c. 10;
id., c. 11;
id., c. 12;
id., c. 13;
id., c. 14;
id., c. 15;
id., c. 16;
id., c. 17;
1894, 28 Stat. 1022, c. 13;
id., c. 16;
id., c.
17.
