
    DE CELIS’S CASE.
    Eulogio F. De Celis’s Administrator, v. The United States.
    
      On the Proofs.
    
    
      In March, 1347, Lieutenant-Colonel Frémont, while acting as governor of California, under the appointment of Commodore Stockton, hugs cattle and borrows money from the claimant for iliense of the irregular troops under Ms command. He also gives his note as governor and agent of the United States. Subsequently Congress pass acts for the settlement-of claims for the support of Ms troops during the year 1846 and for the payment of certain designated contracts. The claimant also brings in American cattle pastured in Mexico and pays duties without protest. The Senate refers, the claim to this court.
    
    I. Tlie proceedings and authority of Lieutenant-Colonel Frémont, as acting governor of California in 1846- 47, examined and stated.
    II. The conduct of Lieutenant-Colonel Frémont in carryingonwaronhisown responsibility in Ciflifornia during the year 1845-’46 and his operations generally up to January 1, 1847, have been adopted and approved by the Government. His assumption of authority as governor after January 16, 1847, has never been recognized.
    Ill A determination by the legislative and executive branches of the Government as to relative or superior authority among military officers in the field is conclusive upon the judiciary.
    IV. A ratification of Lieutenant-Colonel Frémont’s acts as governor of California in 1847 cannot be implied from the legislative appropriations for his previous acts in 1846. The former wore disapproved by the executive branch of the Government and have never been provided for by ■ appropriation.
    V. The Act 3d March, 1853 (10 Stat. L., 759), making an appropriation for the payment of a judgment recovered against Lieutenant-Colonel Frémont upon bills of exchange drawn by Mm as governor of California in 1847 ratifies and adopts no other contracts than those specified therein, and recognizes him only as lieutenant-colonel, and not as governor of California.
    YL Where money was advanced to a military officer and used for purposes not recognized as legitimate by the Government, the claimant does not stand in the position of having advanced money for the use and benefit of the defendants.
    
      VII.Where á claim for duties illegally exacted Toy a collector of customs is referred to this court t>y order of the Senate under the provisions of the Aet 2ith February, 1855 (10 Stat. L., p. 612, § 1; Eev. St-at., § 1059), it is not yet determined whether the court acquires thereby jurisdiction of the subject-matter.
    VIII.Duties must bo hold to have boon voluntarily paid unless a protest was given as prescribed by the statute. (Eev. Stat., §§ 3010, 3014.)
    IX.Where cattle were owned in Mexican territory and regularly imported into the United States, the owner was liable for duties thereon, though they iireviously had been in this country.
    
      The Reporters’ statement of tbe case:
    The court found the following facts, which, with the opinion of the court, fully set forth the case.
    I. The claims set forth in the petition were referred to this court by the Senate of the United States January 29,1859, and on the same day a copy of the order of the Senate and the accompanying papers were filed herein, and the case entered in the name of Eulogio De Celis.
    II. Subsequently said Eulogio died, and the claimant, who was admitted to prosecute this action in May, 1871, was duly appointed administrator on his estate by the probate court of the comity of Los Angeles, California, October 19, 1809. ,.
    III. On the 3d of March, 1847, said De Celis, now deceased, and J. C. Frémont entered into a written contract, a copy of which is annexed to the petition, and marked Exhibit A. The 000 head of cattle therein contracted for were delivered to said Frémont by said De Celis at Angeles, Cal., April 20, 1847, and on that day said Frémont gave a receipt therefor, a copy of which is annexed to the petition, and at the same time an acknowledgment of indebtedness set forth in the claimant’s petition.
    IY. Said Frémont delivered said, cattle to one Abel Stearns, upon an agreement between them that said Stearns should keep and pastime the same for three years, and should receive as a compensation therefor one-half the natural increase. Said Stearns thereupon removed the cattle into Mexican territory, in Lower California, and pastmed them there during the three years agreed upon. At the expiration of that period, the Government not having taken any measures for completing said Erémont’s contract nor for payment of the purchase-money, he directed said Stearns to redeliver said cattle, with one-half the natural increase, to said-De Celis; and they were so delivered some time in tlie year 1852.
    V. In February, 1853, said De Celis imported said cattle into tlie United States via San Diego, Cal., and there paid to the collector of customs $712.58 as duties thereon, without protest. The collector’s receipt- therefor is set forth in Exhibit B, annexed •to the petition.
    VI. On said March 3, 1817, said De Celis (since deceased), at said Angeles, loaned to said Frémont $2,500, in silver dollars, and received from said Frémont therefor a promissory note, a copy of which is annexed to the petition, and marked Exhibit D.
    VII. The money so borrowed was expended by said Frémont in supplying the wants of the officers and men under his command, but what officers and men, and what wants, do not appear; no accounts, vouchers, reports, or returns thereof having been proved.
    VIII. In the year 1810, and for some time subsequently, said Fremont was lieutenant-colonel of a regiment of mounted riflemen, United States Army, in command of a battalion of volunteers organized in California for the service of the United States.
    In January, 1817, Brig. Gen. S. W. Kearny, then in California with a military command, was his superior officer by rank and by orders from the "War Department, and was commander-in-chief of the land forces of the United States in Upper California.
    IX. For refusing to obey the lawful commands of General Kearny, and acting in defiance of his authority; in raising and attempting to raise troops; in retaining in service an armed force contrary to the orders of said Kearny; in refusing to march such part of his battalion as refused to be mustered into service of the United States to Yerba Buena, there to be discharged ; in proclaiming himself to be, and in assuming to be, the governor of California; and other acts of insubordination and for mutiny; all occurring between January 1C, 1817, and a1 time subsequent to the making the contract and executing the promissory note mentioned in the 3d and 6th findings, said Fré-mont was tried by a court-martial on three charges and twenty-three specifications, was found guilty on all of them January 3.1, 1818, and was sentenced to be dismissed the service.
    The action of the President thereon is set forth in an order, of which the following is a copy: . -
    “ Upon an inspection of the record, I am not satisfied that the facts in tbis case constitute tbe military crime of ‘mutiny.’ I am of opinion that the second and third charges are sustained by the proof, and that the conviction, upon these charges warrants the sentence of the comt. The sentence of the court is therefore approved; but, in consideration of the peculiar circumstances of the case, of the previous meritorious and valuable services of Lieutenant-Colonel Frémont, and of the foregoing recommendations of a majority of the members of the court, the penalty of dismissal from service is remitted.
    “Lieutenant-Colonel Frémont will accordingly be released from arrest, will resume his sword, and report for duty.
    “JAMES K. FOLK.
    “Washington, February 1C, 1848.”
    On the 19th of February, 1848, said Frémont resigned as lieutenant-colonel in the Army, and his resignation ivas accepted March 18,1848.
    The following are the exhibits referred • to in the foregoing findings:
    Exhibit A.
    This article of agreement, entered into this third March, 1847, by and between Eulogio de Celis, a resident of the city de los Angeles, capital of Upper California, of the first part, and J. C. Frémont, governor of California, and legal representative of the Government of the United States of North America, of the second part, witnesseth: That the said Eulogio de Celis has sold to J. C; Frémont, governor of California aforesaid, a lot of six hundred head of cattle, of good merchantable kind, and suitable for beef, to be delivered to the commissary of the troops under the immediate command of Governor Frémont, in numbers corresponding with the requisitions of the commissary; and the said Governor Frémont binds himself and his successors in office to pay the said Eulogio de Celis, his heirs, executors, administrators, or assigns, at the expiration of eight months, the sum of six thousand dollars, without defalcation.
    It is expressly understood between the above contracting parties that if the said Eulogio de Celis fails to deliver good merchantable cattle, when required to do so by the commissaiy, that the contract is to be considered null and void by said Governor Frémont, he paying to said Eulogio de Celis ten dollars per bead for tbe number delivered. And it is further understood that the hides of the above cattle are to be delivered on ax>plication of said Eulogio de Celis, to whom they belong according to agreement.
    In testimony of the above the said parties have hereunto set their hands and affixed their seals, at, the city of Los Angeles, the capitai of California, the day and year before written.
    EULOGIO DE CELIS. [seal.]
    J. C. FBEMONT, [seal.]
    
      Governor of California.
    
    Signed in presence of
    ¥1. H. Bussell, Sec. of State.
    
    I do hereby, certify that Don Eulogio de Celis has complied with the within obligation and contract on his part by delivering the number of cattle as specified. Angeles, April 26, 1847. And in payment I have this day executed to said Celis my note for the sum of six thousand nine hundred and seventy-five dollars, including the hides of the full number of cattle.
    J. 0. FBEMONT,
    
      Lieut. Gol, U. S. A.
    
    Exhibit 13.
    CustoM-LIouse, San Diego, Cal.,
    
      February 17, 1853.
    Beceived E. de Celis the sum of seven hundred and twelve dollars and fifty cents, in full, being the amount of duty collected on (819) eight liundred and nineteen head of cattle imported from Lower California.
    [$712 58.] W. C. FEBBELL, Collector.
    
    Exhibit C.
    PROTEST OE PAYMENT OP DUTIES ON CATTLE.
    
      To the Collector of the Custom-Souse at San Siego:
    
    Sir : In the opinion of all the jurisconsults whom I have consulted, the eighth article of the treaty of Guadalupe Hidalgo specially exempts me from the payment of any duty whatsoever on the removal of my property wherever it may suit me. There is no tariff, muter the laws of the United States, which imposes a duty upon the exportation of property, and the said eighth article'is the more clear upon this point, since its insertion was intended to permit the introduction, by the parties interested, of their property, at such place as they might elect for their residence, free of all duty.
    Independently of the reasons above enumerated we have others, which exempt the cattle from duty in this case, entirely distinct from the demand made upon Hon Juan Bandini, with whose case it is illegally attempted to confound this one. Under the contract entered into with Colonel Frémont, at that time an employee of the government, one thousand head of cattle were brought from San Luis Obispo for the maintenance of the force which conquered this country. Owing to difficulties among the commanding officers and the troubles incident to the war then pending, six hundred of these cattle were taken to the frontier of Lower California.. These cattle, not having been paid for, were returned to their native country — with a few more from them natural increase — and to the possession and residence of their former owner.
    I would ask whether the case of Hon 'Juan Bandini, until which it is improperly attempted to confound this one, bears any resemblance whatever as to the payment of which I am compelled to submit ? And since I am forced to do so, I reserve to myself the right of protest; and I do, most solemnly and in the fullest manner, protest against the aforesaid payment, the detention of the cattle on its passage through San Hiego, and against all other expenses and damages which I have incurred in the premises during the many and frequent voyages which I have been compelled to make to San Hiego, which is at a distance of 170 miles from my domicile.
    I am, most respectfully, your obedient servant,
    EULOGIO HE CELIS.
    Los Angeles, February 3, 1853.
    “ This protest has been made at the time of the payment of the duties.
    “W. 0. FEEEELL, Collector.
    
    “San Hiego, Cal., CustoM-House, nth Feb., 1853.”
    Exhibit H.
    Eight months after date I, J. 0. Frémont, governor of California, and thereby the legal agent of the Government of the United States of North America, in consideration of the sum of two thousand 'five hundred dollars being loaned or advanced to me for the benefit of said Government of the United States by Eulogio de Celis, hereby promise and oblige myself, in my fiduciary character as. governor aforesaid, and my successors in office, to pay to said Eulogio de Celis, his hems, executors, administrators, and assigns, the aforesaid stun of two thousand five hundred dollars, without defalcation. It is agreed and understood that if the aforesaid sum of two thousand five hundred dollars is not paid on or before maturity, that it is to draw interest at the rate of two per cent, per month from the time it falls due..
    In testimony whereof I have hereunto set my hand and caused the seal of the Territory to be affixed, at the city de los Angeles, the capital of California, this third daj’ of March, in the year eighteen hundred and foiiy-seven.
    J. C. FREMONT,
    
      .Governor of California.
    
    
      Mr. J. F. Manning and Quinton Convine for the claimant:
    The money and cattle contracts were legally and properly entered into by an authorized and subsequently approved officer of the United States; the claimant fulfilled entirely his part of the contract; the Government of the United States is the only party delinquent on the contracts; it has neglected to perform its part of the several contracts; therefore it is still liable on the same, with the stipulated interest on the promissory note; tine damages ensuing from the cattle contract in the forms of the expense of delivery of them to Governor Frémont at Los Angeles; the expense of driving them to Lower California; and the expense of return; the repayment of the ditties; and one-half the natural increase.
    
      Mr. Horace M. Hastings (with whom was the Assistant Attorney-General) for the defendants:
    The promissory note or single bill must be taken to be Fré-rnont’s individual or personal obligation. By its language it imports to have been executed by him at “ the capital of California,” under “ the seal of the Territory,” in the fiduciary character of governor of California.
    
      Tliere is no evidence in tbe record tliat be was then, or at any other time, governor of California; or that there was any such corporation or municipality as the Territory of California, having a capital or a seal; or if there were a capital, that it was the city de los Angeles; or if there were a seal, that it was affixed to the instrument in question. That is to say, even if, in the character or capacity mentioned in it, the maker of this paper had authority to bind the United States to its payment, no such character is here established for him.
    ■ Whatever official character Frémont may at any time have claimed or have been entitled to in the so-called Territory of California, he was not, on the third day of March, 1847, the date of the said paper, in any capacity or character which authorized him to make a contract of any kind on behalf of the United States. On the 3d day of March, 1847, and for more than two months previous,(Bvt. Brig. Gen. S. W. Kearny) was the accredited commander-in-chief of the land forces of the United States in California, charged with the duty of attending to the administration of civil affairs.
    It is a matter of history, however, that Frémont at this very time (March, 1847) and previously and subsequently did attempt to exercise the authority of “ commander” and “ governor ” independently Of General Kearny; that for so doing Frémont was arrested by General Kearny, brought back in 1847 from California a prisoner, tried in the year 1848, at Fortress Monroe, by court-martial, on charges preferred by the War Department of the United States, of “ mutiny,” “ disobedience of the lawful commands of his superior officer,” “ conduct to the prejudice of good order and military discipline,” found guilty on each and every specification, and sentenced to be cashiered; that the President approved the findings of the court as to the last two charges, but not as to the first (all of which, however, directly involved the question of his having been “ commander” or “governor” of California); but in view of all the circumstances, and a recommendation of lenity by most of the court, the President remitted the penalty which by all it was declared' Frémont had __incurred.
    The question as to who was “ governor” or “commander” of the army in California in 1847 — a purely political question at best, as calling for the ascertainment of a political condition and not an ordinary fact, and therefore wholly within the power of tbe political department of tbe government and wholly outside tbe province of tbe judiciary, bas by that power been acted on and determined adversely to tbe view of counsel for claimant, and is now a historical fact, not to be gainsaid by this or any other court. We quote from tbe opinion delivered in another case, requesting that it be reiterated in this case: “We do not think we have any right to decide tbe question. It bas been confided to other departments. They have not disagreed on tbe subject. On tbe contrary, they have fully concurred. They have not neglected or refused to act, but have by their separate, their concurrent, and their joint action united in final determination of tbe question, and we have not tbe power nor tbe inclination to disturb it. (Grosemeyer v. The United States, 2 C. Cls. R., 22, vide all tbe authorities therein cited, pp. 23,24, 25, 26; State v. Wagner, 61 Maine, 184.) ”
    Notwithstanding tbe want of authority on tbe part of Frémont, it is said that tbe Dnited States have bad tbe benefit of tbe said sum of money, and an implied contract to pay bas thereby been raised. There is nothing to show that a single dollar of it was expended in tbe service of tbe Dnited States. There is nothing presented in this respect, on behalf of claimant, except tbe naked promise to pay and Frémont’s acknowledgment that be executed it; nor bas tbe testimony taken since tbe above was written changed tbe matter in the slightest degree.
   Richardson J.,

delivered tbe opinion of tbe court:

Tbe claims upon which this action is founded were referred to tbe court by an order of tbe Senate of tbe Dnited States, and arose out of tbe public operations of Lieut. Col. John C. Fré-mont in California in tbe years 1846 and 1847, and events connected with tbe difficulties and war between this country and tbe Republic of Mexico, which resulted, among other things, in tbe conquest and annexation to tbe Dnited States of that part of Mexican territory which was then called Dpper California.

These events and tbe operations of tbe military and naval forces, and tbe transactions of tbe public officers of tbe Dnited States serving in that territory immediately before and after its final conquest, excited great and general-public interest throughout the country at tbe time of their occurrence, and complete and trustworthy narratives, reports, and records thereof have long' since been spread before the public through, the proceedings of a general court-martial, held at Washington in 1847 and 1848, for the trial of Colonel Frémont, which were communicated to Congress 1>3’ the President, and printed in an executive document, as well as through other Congressional documents and the historical writings of trustworthy authors. (First session of Thirtieth Congress, 1S48, Executive Documents of Senate Nos. 33 and 70; Report of Committee, Senate, No. 75; Eeport of Committee, House, No. 817; Ripley’s War with Mexico,'vol. 1, 1849; The Mexican War, by Mansfield, 1848; Histoiy of the War between the Hnited States and Mexico, by Jenkins, 1849; Tuthill’s Histoiy of California, 1846; Bigelow’s Life of Colonel Frémont, 1856; Hpham’s Life of J. C. Frémont, 1856; Memoirs of Cen. W. T. Sherman, vol. 1, 1875.)

The claimant has not proved and does not rely upon any special authority conferred upon Colonel Frémont to contract the obligations on the part of the Hnited States set forth in the petition, but rests upon implied authority which he assumes that officer possessed from his official relations to the Government and the circumstances in which he was placed, as shown or known only through sources of information-of a historical and official character, open alike to the public as to this court.

The court will take judicial notice of the leading and controlling events in the histoiy of the country and of the official relations of the principal actors therein to the Government; and, in elucidation thereof, also of less important transactions of general and public interest immediately connected therewith, when tiny have passed into commonly-received authentic histoiy.

The operations of the military and naval officers of the United States in the conquest of California and immediately subsequent thereto, and the action of the executive and legislative branches of the Government thereon so far as they were of a public nature and indicate the true relation of Colonel Frémont, who performed a leading and conspicuous part therein, to the national Government, and his authority or lack of authority to bind the United States by contracts entered into by him in the official capacity which he claimed as a governor of California,” must be regarded now, after the lapse of more than thirty years, as such historical facts of public and general notoriety as may be hero judicially taken notice of by the court, especially as neither party relies upon any other facts by which his authority can be determined.

In Meade v. The United States (9 Wall., 691), on appeal from this court, the judges of the Supreme Court took judicial notice of historical and national political facts bearing upon the merits of that case of much less general and public interest, notoriety,, and comment than the material facts to which we shall have occasion to refer in this opinion, and acted upon their own views thereof, independently of the specific findings which were hero made and sent up to them.

A concise narrative of the public movements of Colonel Fré-mont in relation to the conquest of Upper California will afford, and are necessary to, a clear understanding of the circumstances under which he claimed authority as “governor” thereof, and a summary of the action of Congress and the Executive will show how far his operations and assumed authority were adopted and ratified by the Government.

In the year 1845 John C. Frémont, then a brevet captain of Topographical Engineers in the United States Army, but afterward, in 1846, appointed lieutenant-colonel of the then new regiment of mounted riflemen, who had already distinguished himself by his intrepidity and ability in two expeditions of exploration across the continent, was sent out by the Government at Washington at the head of a third expedition of like character, and especially instructed to find, if possible, a new and better route from the base of the western side of the Bocky Mountains to the mouth of the Columbia Biver.

Arriving in California, then Mexican territory, some time in the winter of 1845-’46, and charged in his instructions not to provoke hostilities with the Mexicans, he at once sought an interview with the governor, Castro, and easily obtained from him oral permission to go where he pleased, the governor kindly saying that the whole country was' open to him. This permission Frémont could not obtain in writing,, as he desired, and it was soon revoked by the governor, who ordered the young explorer with his party forthwith to leave the country, and followed up the order by the hostile array of a small force of infantry, cavalry, and artillery, threatening the camp of the exploring party, but making no actual attack.

Frémont, anxious to continue peaceably the important and interesting work for which he had been sent out, and then earnestly devoted to the line of that duty, seeing no prospects of being permitted to remain in Mexican territory unmolested, broke up his camp and proceeded toward Oregon.

Since he had left Washington the difficulties between the United States and Mexico had increased and war was imminent. Captain Gillespie, of the Marine Corps, had been dispatched to overtake him, with a letter of introduction from Mr. Buchanan, Secretary of State, some oral messages, and a letter from Mr. Benton, Senator from Missouri. Captain Gillespie, who had crossed through Mexican territory in the guise of an English merchant, reached the exploring party and communicated the messages and delivered the letters about the 9th of May, 1846. The exact terms of the letter from Senator Benton and the oral messages have never been given to the public, but they made such an impression upon Colonel Frémont as to induce him immediately to abandon his expedition of exploration and retrace his steps and return to California. Arriving there, he found some of the residents in a state of insurrection against the existing government, and joining the insurgents, he raised and organized a battalion of soldiers for active warfare, taking command himself without appointment from any superior organization, and acting wholly upon his own authority and on his own responsibility.

Early in July, 1846, the revolutionists at Sonoma issued a declaration of independence, declaring the country free from the dominion of Mexico, and established a nominal government, under a flag bearing the emblem of a grizzly bear, which gave to them the name of “bear party,” and to the insurrection the name of “the bear war.”

Before that date,'on the 13th of May, 1846, Congress had passed an act and the President had issued a proclamation declaring that “ by the act of the Republic of Mexico a state of war exists between that government and the United states ” (9 Stat. L., 999), but the knowledge of that fact did not reach, and could not have reached, Colonel Frémont, by the then existing means of conveyance, until long afterward, and he continued to carry on his military operations on his individual responsibility.

On the 7th of July, 1846, Commodore Sloat, of the Navy, in command of the Pacific squadron, reached Monterey, and finding Fré-mont exercising military command and a revolution apparently successful, took possession of that place and raised the United States flag; whereupon Frémont hauled down the flag of the grizzly bear and raised that of Ms own government. And tMs was the first act of Ms, after Ms return to California from Oregon, in which he assumed to act in the interest and for the benefit of the United States.

Commodore Sloat supposed that Colonel Frémont was acting under orders from the Government at Washington, and finding that such was not the fact, he became alarmed at the authority and responsibility which he himself had assumed, and refused to proceed further with Frémont in his movements for the subjugation of the country.

On the 15th of July, 1846, Commodore Stockton arrived, and soon afterward Commodore Sloat turned over to him the command of the Pacific squadron and returned home.

Commodore Stockton forthwith entered into arrangements with Colonel Frémont to carry on active operations for conquest, and on the 23d of July, 1846, appointed the latter to the command of the .California battalion of United States troops, with the rank of major,” and thus, so far as he had authority, adopted Colonel Frémont’s battalion of volunteers into government service. By the j oint operations of the military and naval forces thus under the command and direction of Commodore Stockton, Upper California was substantially and practically conquered for the United States before January 1, 1847.

Brigadier-General Kearny had been sent out, under instructions from the Secretary of War, dated June 3 and 18, 1846, in command of an expedition “to take the earliest possession of Upper California,” and the instructions set forth tMs direction : “ Should you conquer and take possession of New Mexico and Upper California, or considerable places in either, you will establish temporary civil government therein, abolishing all arbitrary restrictions that may exist, so far as it may be done with safety.”

He arrived in California, not without obstruction and some severe encounters with the enemy, about the 1st of January, 1847, and claimed to be the head of the civil as well as military power of the United States in the territory. This claim was opposed by Commodore Stockton, on the ground that he himself was .the conqueror of the country, and as such, by the rules of war, was entitled to establish a civil government, and that the instructions given to General Kearny more than six months previously, to establish such government, were conditioned upon his, Kearny’s, conquering the territory, and did not apply to the actual condition of affairs which existed on his arrival.

On the 16th of January, 1847, the very day on which General Kearny gave to Colonel Frémont his first written order, in which he directed that no change be made in the organization of his battalion of volunteers, or officers appointed in it, without the sanction or approval of General Kearny being first obtained, Lieutenant-Colonel Frémont was formally appointed and commissioned by Commodore Stockton as “governor and commander-in-chief of the territory of California.”

In this controversy between Commodore Stockton and General Kearny, Fremont joined the side of the former, and so notified General Kearny in writing the day following the receipt of his commission as governor, saaing that until those officers adjusted between themselves the question of rank, he should have to report to and receive orders from the commodore. And he set up, or attempted to set up and maintain, a civil government, with himself at the head, “ enlisted or retained soldiers in his employment, refused to muster them into the service of the United States or to discharge them, or to obey the orders and commands of General Kearny.”

Commodore Stockton was succeeded in command of the Pacific squadron by Commodore Shubrick, who removed all further cause for any possible claim of right on the part of Frémont to act under the authority of the naval commander, by notifying him, in February, 1847, that he recognized General Kearny as commander-in-chief of the land forces in California. And yet Frémont still continued to defy the superior authority of that officer, and to assume civil power under the title of governor for some time after the claims now in suit were contracted by him in that capacity, and until he was obliged to yield by instructions from Washington which could no longer be misunderstood or misconstrued, and a few months later he was sent home under arrest for these acts of insubordination.

As to the relative or superior authority among military officers in the field of active operations, when a controversy arises and each assumes responsibilities and obligations inconsistent with the authority claimed by others, courts are conclusively bound by the determination of the executive and legislative branches of tbe Government thereon, as they are by tbe determination of those branches as to bow far tbe conduct of military officers acting on their own responsibility and without lawful authority previously conferred is ratified, confirmed, and adopted by the Government.

In relation to the military operations of Colonel Frémont in the conquest of Upper California and the controversy between him and General Kearny thereafter, tlie action of the Executive and of Congress was clear and decided at the time of the occurrence and afterward, and leaves nothing in doubt or uncertainty respecting their true official relations to the Government of the United States.

The conduct of Colonel Frémont in raising a battalion and carrying on war against the Mexican authorities on his own responsibility at the beginning of the insurrection, and his operations generally up to January 1, 1847, have been adopted and approved. No complaint was made of his course in abandoning the exploring expedition upon which he had been sent out,nor of his engaging in private warfare while holding a military commission in the United States Army, and he was recognized as- continuously in the employment of the Government during the whole of his operations and until he voluntarily resigned. The conspicuous part which he took in the conquest, and the value and usefulness of his sendees, were acknowledged by the Secretary of War, Mr. Marcy, and declarations of approval and commendations for his gallantry were made under executive authority. Congress passed an Act August 31, 1852 (ch. 110, § 6, 10 Stat. L., 108), making an appropriation for the pay and equipment of, and the settlement of claims for supplies, for, the volunteers serving under him chiving the year 1846, and providing for the appointment of a board of officers to examine- and report to Congress upon all such claims as might be presented for funds advanced and subsistence and supplies of all kinds furnished or taken for the use of said command “ while thus engaged in the public service.” But this act neither ratified nor referred to any service later than the year 1840.

On the other hand, the Executive fully recognized the authority claimed by General Kearny after his arrival in California in January, 1847, to be at the head of the civil government and to, be commander-in-chief of all the land forces of the United States; within the Territory, and never acknowledged Colonel Fremont as governor, nor as having- any right to enlist, equip, and maintain officers and men under his command and in his employment independently of General Kearny as his superior officer. The superior authority of General Kearny was officially acknowledged in a letter from General Scott to that officer, dated November 3,1846 ; in a communication by the Secretary of the Navy to Commodore Stockton, November 5, 1846; in a letter from the Secretary of War to General Kearny, June 11,1847, and in a communication from him to the President, January 19, 1848, all officially communicated to Congress and printed among the public documents. And, what is perhaps more decisive, Colonel Frémont was tried by a general court-martial, held at Washington in 1847 and 1848, on three charges and twenty-three specifications, among which it was charged that he proclaimed himself to be and assumed to act as governor of California in contempt of the lawful authority of his superior officer, Brigadier-General Kearny; that he refused to march such part of his battalion to Yerba Buena as refused to be mustered into the service of the United States, there to be discharged, and other acts of insubordination, and he was found guilty on all the charges and specifications, and ordered to be dismissed the service. The finding of the court-martial was approved by the President, except that he was not satisfied that the acts constituted the military crime of mutiny, and the sentence was remitted. This was an authoritative declarationby thePresident of the United States, the Commander-in-Chief of the Army and Navy, that Colonel Frémont unlawfully assumed to be and to act as governor of California^ and that some of his military operations after January 16,1847, were conducted in insubordination. And Congress has never passed any act for the general settlement and payment of the contracts entered into by him during that time.

It is true that Colonel Frémont was sued in England in 1852 upon four bills of exchange, drawn by him as governor of California March 18, 1847, upon James Buchanan, Secretary of State, and protested for non-payment; that judgment was recovered thereon against him in the court of exchequer (Gibbs v. Frémont, 9 Exch., 25); and that Congress, by act of March 3, 1853, chapter 101, made an appropriation for the payment of that judgment (10 Stat. L., 759); but that act ratifies and adopts no other contracts than those specified therein, and it refers to Frémont as “late a lieutenant-colonel” and not as “governor of California,” and provides that “before payment tbe Secretary of tbe Treasury shall be satisfied that tbe amount has been expended for tbe benefit of tbe pubbc service.”

Congress might in like manner provide for tbe payment of tbe obligations incurred by Colonel Frémont which are tbe foundation of this action, but as it bas never done so, nor in any form recognized them as valid and binding upon tbe Government, tbe claimant bas no remedy in this court.

Tbe only claim earnestly pressed xipon us in tbe argument is on a promissory note, of which tbe following is a copy:

“Eight months after date, I, J. 0. Frémont, governor of California, and thereby the legal agent of tbe Government of tbe United States of North America, in consideration of tbe sum of two thousand five hundred dollars being loaned or advanced to me for tbe benefit of said Government of tbe United States by Eulogio de Celis, hereby promise and oblige myself, in my fiduciary character as governor aforesaid, and my successors in office, to pay to said Eulogio de Cebs, bis bens, executors, administrators, and assigns, tbe aforesaid sum of two thousand five hundred dollars, without defalcation. It is agreed and understood that if tbe aforesaid sum of two thousand five hundred dollars is not paid on or before maturity, that it is to draw interest at tbe rate of two per cent, per month from tbe time it falls due.
“In testimony whereof I have hereunto set my band and caused tbe seal of tbe Territory to be affixed, at tbe city de los Angeles, tbe capital of California, this third day of March, in tbe year eighteen-hundred and forty-seven.
“J. C. FRÉMONT,
Governor of California.”

Tbe exact pxxrpose for which Colonel Fremont used tbe money obtained upon this note is not found by tbe coxxrt and was not proved, because be rendered no accoxxnt and returned no vouchers. As be was carrying on a civil government tbe authority for which was expressly disavowed by tbe Executive, and to some extent maintained a command in defiance of tbe authority of bis sxxperior officer, enlisting men and refusing to muster them into tbe United States service,'for all of which be could draw no money or supplies in tbe ordinary and legal methods provided in tbe service, we may presume that tbe money borrowed by Mm was used for purposes not recognized as legitimate by tbe government, or at least in tbe absence of proof we are not at liberty to presume otherwise. And so tbe claimant ■does not stand in tbe position of having advanced money which tbe United States have bad tbe benefit of, if that were bis claim independently of tbe express contract proved by tbe promissory note sued upon. Even if Colonel Frémont were then tbe lawful military governor of California, it would not necessarily follow that tbe United States would be liable for money borrowed by him in bis official capacity, without- express proof, at least, that it was used in tbe recognized public service. (The Floyd Acceptance Cases, 7 Wall., 666.)

Another claim set up in tbe petition is for tbe price of 600 bead of cat-tie sold to Colonel Frémont under a contract of March 3, 1847. These cattle were delivered April 26, 1847, when Fré-mont gave to tbe claimant’s intestate a certificate of acknowledgment, certifying that there was due to him from tbe United States tbe sum of $16,975, subject to interest at 2 per cent, per month after thé expiration of eight months from April 18,1847, until paid. Tbe claimant now seeks payment of that obligation and $5,000 damages, and interest on tbe whole.

Tbe facts in relation to these cattle are, that when they were delivered to Frémont be bad no use for them, and be turned them over to one Stearns to be pastured for three years at tbe compensation of one-half their natural increase. Stearns drove them into Lower California, in Mexican territory, and there pastured them on bis own land for tbe time agreed upon. At tbe expiration of that time, Frémont, being no longer in tbe public service, having resigned bis military commission, and not being able himself to pay for tbe same, and tbe United States Government not having adopted or ratified bis contract, redelivered all tbe cattle and half tbe increase to tbe original owner, as agreed upon, and they were accepted by him on tbe land of said Stearns in Mexico. This claim, besides being open to all tbe objections found against tbe promissory note sued on, is even less meritorious on tbe part of tbe claimant, because tbe property was returned to him, and it does not appear that be suffered any loss.

Still another clabn is set forth for $712.58, paid for duties assessed and collected by tbe collector of the port of. San Diego on tbe cattle wlieu brought from Mexican territory, after baying been pastured there three years, into the United States.

Against the consideration of this claim by the court the Assistant Attorney-General sets up the plea of want of jurisdiction, on the authority of Nichols v. The United States (7 Wall., 122). It was held in that case, as we have repeatedly held, that to claims for the recovery back of taxes and duties illegally assessed, for which special provisions are made by statute, giving jurisdiction to other tribunals and other courts, the general jurisdiction of this court does not attach., (Kaufman v. The United States, 11 C. Cls. R., 659; Boughton v. The United States, 12 id., 330; Winnisimmet Company v. The United States, 12 id., 319; Walker v. The United States, 12 id., 408.) And the position of the Assistant Attorney-General would be correct if the claimant were here of his motion, voluntarily invoking the jurisdiction of the court. But this claim was specially referred to us by an order of the Senate of the United States, under that provision of the statute which expressly confers jurisdiction upon this court over “ all claims which may be referred to it by either house of Congress.” (Act February 24, 1855, ch. 122, § 1, 10 Stat., 612, now .Rev. Stat., § 1059.)

Upon the question whether or not we have jurisdiction of such a claim thus referred to us, it is unnecessary now to express a final opinion, because there are two substantial grounds of defense on the merits which have been fully argued, while the jurisdictional question was not considered by the claimant’s counsel at the trial. First, the duties must be held to have been voluntarily paid, no protest or objection having been proved (Rev. Stat., § § 3010-3014, and the acts revised therein); and, second, it does not appear that they were not legally and properly assessed and collected. The claimant’s intestate owned the cattle in Mexican territory and regularly imported them into the United States, and thereby became hable to pay duties thereon, even although they had previously been in this country. ■(Customs Regulations, Treasury Department, 1874, art. 373,378, and like regulations and laws previously existing.)

On the whole case, the claimant has no legal cause of action, •and his petition must be dismissed.  