
    THE UNITED STATES v. LA ABRA SILVER MINING CO. ET AL.
    [No. 17917.
    Decided April 16, 1894.]
    
      On the defendants’ Demurrer.
    
    The treaty with Mexico, 1868, provides instead of a sum in gross that individual claims shall he investigated by a commission, and the awards of the umpire he final and conclusive. The defendants present a claim, the umpire makes an award, and Mexico pays the . amount of it to the United States, but alleges that it was procured by fraud and perjury. Before the money is paid over to the claimants Congress pass an act conferring jurisdiction on this court to hear and determine the allegations of fraud with power to vacate and set aside the award. The United States file a bill and the defendants demur.
    I.The sacredness of an international award should be upheld by the judiciary. But where the government against which it was made has complied with it, the government in whose favor it was made may question the bona fides of the claim and invoke judicial aid and return the money.
    II.When a citizen applies to his government to press his claim against a foreign power, he does so subject to the wise and judicious discretion which a nation has a right to exercise in determining its duty to itself, the citizen, and the foreign power.
    III.It is a part of the sovereign right of a government, if at any time before the consummation of the transaction it becomes satisfied of the falsity or injustice of a claim, to abandon all further action on behalf of its citizen.
    IV. So long asmoney received from a foreign power remains in the hands of a government it is its duty as sovereign in the discharge of its moral and international obligations to inquire and ascertain its duty with respect to the fund, not only toward the citizen for whom it has received the money, but toward the government from which it was derived.
    V. The Aci 18th June, 1878 (20 Stat. L., p. 144), requesting the President to investigate charges of fraud in regard to the claims of Weil and La Abra Mining Company was only an expression of the desire of Congress to have the charges investigated. The Act 28th December, 1892 (27 id., p. 409), provided an approimiate and effective means of investigation in a judicial forum, being the “domestic tribunal” anticipated by the Supreme Court in Boynton v. Blaine (139 U. S. R., 306). Neither act limited or increased the constitutional diplomatic powers of the President.
    
      VI.The statutory recognition of a claim to an international award in the custody of the Government changes its character from thp/fc of a mere appeal to the grace of the sovereign to a right susceptible of judicial determination. Against such a claim the Government, as trustee of the fund, may file a bill in the nature of a bill of interpleader, or to quiet title; and such a proceeding will not conflict with the diplomatic authority vested in the President by the Constitution.
    VII.The United States, by the act of 1892 conferring Curisdiction on this court, suspended their relation to the fund as sovereign, and recognized a right in the defendants, but subjected that right to the provisions of the statute which recognized it.
    VIII.When a citizen insists upon a recognition and adjustment of a claim, he imposes a legal obligation upon himself to become subject to the jurisdiction of such court as Congress may empower to adjudicate the claim, and it is within the constitutional power of Congress to impose necessary and proper terms and conditions in the act of jurisdiction. Thus Congress may provide that if an award which is the subject of litigation was procured by fraud, the parties may be barred from all claim on the faith of the award, and the money be returned to the Government from which it was received.
    
      The Reporters’ statement of tbe case:
    The allegations of the petition will be found set forth substantially in the opinion of the court, to which the defendants interposed a demurred assigning the following grounds:
    1. That by the. Constitution and laws of the United States the subject-matter of the complainant’s suit is not within the jurisdiction of this honorable court or of any court of the United States, but is within the final and exclusive control of the executive department of the Government of the United States.
    2. That the question whether the award which was rendered in favor of the defendant, La Abra Silver Mining Company, by Sir Edward Thornton, as umpire of the United States and Mexican Claims Commission, under the treaty of July 4,1868, between the United States and Mexico, was obtained in whole or part by fraud; and the question whether the whole or any part of the money received and remaining undistributed by the Secretary of State on account of the said award should be returned by the President of the United States to the Government of Mexico, are not, nor is either of them, competent, fit, or proper to be considered and finally determined by this honorable court, or by any municipal court of either of the two sovereign parties to tbe said treaty, but tbat tbe said questions are, and each of them is, of diplomatic or political nature and cognizance, and that Congress.has no power to authorize this honorable court, or any court of the United States, to consider and finally determine the said questions, or either of them, as against the powers and discretions appertaining to the executive department of the Government of the United States.
    3'. That the United States has not such interest in the matters and things alleged in the said bill of complaint as to enable it to maintain this suit or to entitle it to the relief prayed for in the said bill.
    4. That the Government of Mexico is the party pecuniarily interested in this suit, and that at all times since the discovery of the alleged frauds and injuries set forth in the said bill of complaint the said Government of Mexico has had a remedy by suit against the alleged wrongdoers in the courts of the United States for the annulment of the said award and the recovery of the moneys paid by the said Government on account thereof, and that by failing since such alleged discovery to prosecute such suit the said Government of Mexico has been guilty of laches, and has forfeited all rights to relief in equity, and that, therefore, the United States is not entitled to demand such relief for the benefit or in the interest of Mexico in this suit.
    5. 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, is recognized by the law of nations and by the Constitution and laws of the United States as, and that it is, in fact and law, a court of exclusive and final jurisdiction, and that an award of such a commission is recognized by the law of nations and by the Constitution and laws of the United States as, and is, in fact and law, a judgment of a court belonging to the judicial system of the Government of the United States, and can not be seta-side, reopened, or vacated by a municipal court' of the United States, either in virtue of pretended authority or jurisdiction conferred upon such court by act of Congress or otherwise, and that Congress can 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 can, on the part of the United States, be set aside, vacated, or reopened only by the action of the treaty-making power of the Government of the United States; and that. the question presented by the complainants’ bill of complaint, to wit, whetherthesaid award shall be reopened or not on the grounds alleged in the said bill, having been submitted to the said treaty-making power and by it decided in the negative, is res adjudicata.
    
    6. That it appears on the face of the bill that the question whether the award in favor of the defendant, La Abra Silver Mining Company, was obtained in whole or part by fraud, effectuated by means of false swearing or other corrupt and fraudulent practices, is substantially the • same question that was tried by the commissioners under the treaty of July4,1868, between the United States and Mexico, such fraud and fraudulent practices having been charged by the Mexican agent and commissioner at the trial, and that the said 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 said defendant, was referred to the umpire for his decision, and having been by him decided in favor of this defendant, is res adjumcata and can not be reexamined and redetermined by this honorable court.
    7. That the act of Congress under which this suit is i>rose-cuted is unconstitutional and inoperative on the further grounds that it assumes and undertakes to direct, control, and bind the courts in adjudicating the questions submitted for the final adjudication of the courts named in the act, to receive evidence and apply legal principles to the said adjudication which are erroneous and wholly inadmissible according to law as administered in the courts of the United States in like cases; and such act undertakes to prescribe to the court what weight and effect they shall give to the evidence, and how the court shall reach the conclusion that said award was obtained in whole or part through fraud.
    8. That inasmuch and because the questions presented by the complainants’ bill are of a political and diplomatic nature, and not justiciable, or fit and proper to be considered and finally determined by a municipal court, Congress can not impose upon this honorable court, or upon the Supreme Court of the United States, or upon the judges thereof, the trial and determination of such questions.
    9. That said act of Congress is 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 which it ever received being on the 28th day of December, A. D. 1892, when Congress was not in session, both houses of Congress having adjourned on the 22d of December, A. D, 1892, to the 4th of January, A. D. 1893.
    10. That the complainants7 bill of complaint does not set forth facts sufficient to constitute a cause of action or to warrant this honorable court in granting any relief in the premises.
    
      Mr. John O. Jhmfs argument on the question whether the President could sign the bill conferring jurisdiction after the adjourment of Congress was made in this case, but is given in tbe case of tlie United States v. Weil et al., post, where the question was considered by the court.
    
      Mr. Samuel Shellabarger in support of the demurrer:
    It is not true as a matter of law or fact that a citizen has no property interest in an award, for the value of property owned by him, by an international .mixed commission, honestly obtained, but, on the contrary, by the uniform judgment of all tlie courts of Christendom, he has such property interest, which is protected against being taken, without just compensation therefor, by the Government, for the public use or otherwise, by the Constitution, in the same sense, degree, and way in which any other property interest is protected.
    A leading case on this subject is that of Oomegys v. Vasse (1 Pet., 193). Here we have a decision by Justice Story, which reviews the entire field of our present inquiry. That field includes :
    
      First. What is the property interest of a citizen in a claim for his property, wrongfully taken by a foreign government, where no treaty or other legal remedy exists whereby he could recover for the property? — this including the question whether such claim is property.
    
      Second. Whether it passes to an underwriter or insurer by surrender, where the property lost is that which comes to the insurer in virtue of a surrender.
    
      Third. Whether a mixed commission, acting under a treaty such as the one at bar, is a court.
    
      Fourth. Whether such court is one of competent jurisdiction to make an award on such claim.
    
      Fifth. Whether such award is absolutely conclusive, final and binding, like the judgments of other courts of last resort.
    
      Sixth. Whether such claim, even in the absence of all remedy for collection, is still property that passes by an assignment in bankruptcy, either with or without being specifically named in the assignment,- and,
    
      Seventh. Whether the creditors of the claimant, in virtue of his assignment, are entitled to enforce the collection of such claim through said assignee.
    Every one- of these questions this decision answers in the affirmative.
    
      This opinion and decision are characterized by all the qualities of clearness, precision, and thoroughness which characterize the other leading opinions of Justice Story, and it has ceived, in all its parts, from the courts of this country, universal approval without any single dissent. Among these subsequent decisions we venture here to refer the court to Erwin v. United States (97 TJ. S., 392), Phelps v. McDonald (99 TJ. S., 298-303).
    Please carefully observe what is stated in the case of Gome-gys v. Vasse, and repeated in this case of Phelps v. McDonald!, in regard to there being no element of donation or gift in the claim of the citizen against a foreign government that has wrongfully appropriated his property.
    In the case of the heirs of Urnerson v. Rail (13 Pet., 409-413), the court again cites with approval the case of Oomegys v. Vasse.
    
    In the case of Milnor v. Metz (16 Pet., 221-227), the court again cites with approval the case of Oomegys v. Vasse, and explains that that case asserts that the right of property is not lost by the citizen, even though the Spanish Prize Court had decided against his rights and such decision was irreversible.
    In Mayer v. White (24 How., 317, 322), the court again approves Oomegys v. Vasse, and, in the light of that decision, held that a claim against a foreign government for supplies furnished constituted property in the highest sense, and passed by virtue of an assignment in insolvency to the assignee, and the court says:
    “The case of Oomegys v. Vasse (1 Peters, 183, 216, 218, 22.0) is a full authority upon this point.”
    The case of Bachman v. Lawson (109 TJ. S., 659) is one where the court again approves the law of the case of Oomegys v. Vasse.
    
    In the case of Phelps v. McDonald (99 TJ. S., 298,302, et seq.), the citizen’s right of property in an award made by a mixed commission under a treaty is examined, reaffirmed, and strongly enforced by the court, and all the authorities to which we have alluded are again presented, including the case of Oomegys v. Vasse, Olarh v. OlarJc, Milnor v. Metz, supra, and others.
    
      But if all this line of unanimous adjudications of tbe highest court of the land, extending throughout almost the entire existeiice of the Government, all solemnly adjudging that such awards do confer vested property rights in the awardee, should be ignored and held for naught, except the very latest of these, then these latest adjudications, taken by themselves, are absolutely conclusive of our present and main proposition, asserting that we hold property rights in the award which can only be divested by due process of .law, and showing that neither the case of Frelinghuysen v. Key, nor that of Boynton v. Blaine, mean to, or do, negative or question that jmsition.
    These latest decisions, to which I refer, are the Chinese Fxelnsion Case (130 U. S. R., 581), and the cases which cite and follow it. This Chinese TSxelusion Case furnishes a test as to what kind of rights it is that are so placed beyond the power of Congress to divest, and which involve vested private property rights. This test is stated in a paragraph of the syllabus, hereafter quoted in another connection, and which is as follows:
    “The rights and interests created by treaty, which have become so vested that its expiration or abrogation will not destroy or impair them, are such as are connected with and lie in property capable of sale and transfer or other disposition, and not such as are personal and intransferable in their character.”
    Apply, now, to the case at bar this test, which says that private property rights, protected from invasion by the Constitution, are “suchas are connected with, and lie in, property capable of sale and transfer, or other disposition.” The cases already gone over establish, unanimously, that a claim against a foreign government, even where there is no remedy for its collection, is property transferable in every possible sense. And, a fortiori, where that claim has been adjudicated by an award, made under a treaty making the award final, the claim and the award ,are, in still higher senses, property.
    The government’s relation to this award is that of trustee; ours that of beneficiary, or cestui que trust.
    
    On this point I first again refer to the case of JSrwin v. United States (97 U. S. R., 392, supra).
    
    It is expressly decided by the Supreme Court that, in the case of captured and abandoned imoperty, the position of the government, sustained with reference to that property, was and is that of trustee. (United States v. Klein (13 Wall., 128.)
    
      In tbe case of Lamar, executor, v. Brotone et al. (93 TJ. S., 187,195), tbe Supreme Court reaffirms tbis doctriue just quoted from tbe case of Klein.
    It may be bere proper to remark tbat I do not mean to assert tbat tbe Government became trustee in tbe sense tbat it could, in tbe absence of acts authorizing suit, be sued as trustee, as in tbe case of private trustees, but simply tbat tbe equitable obligation of tbe Government became wbat is expressed in tbe case of Fmerson v. Sail (13 Pet., 413, supra), where, speaking of just such a claim as tbe present, tbe court says tbat “the demand is in such cases founded upon tbe law of nations, and tbe obligation is perfect on tbe offending government.”
    Tbat tbis obligation of tbe United States is a “perfect” obligation is nowhere more clearly or admirably expressed than it is in tbe case of Gray, administrator, v. United States (21 C. Cls. B., 392-3):
    “Tbat any government bas a right to do tbis ” (to wit, bar by treaty tbe rights of American citizens against France, in exchange for release by France of tbe United States of international obligations to France), “as it bas tbe right to refuse war in protection of a wronged citizen, or to take other action which, at tbe expense of tbe individual, is most beneficial to tbe whole people, is too clear for discussion. Nevertheless, tbe citizen whose property is thus sacrificed for tbe safety and welfare of bis country bas bis claim against tbe country, and be bas a right to compensation, which exists even if no remedy in tbe courts, or elsewhere, be given. A right often exists where there is no remedy, and a most frequent illustration of tbis is found in tbe relation of tbe subject to bis sovereign, tbe citizen to bis government.”
    The same thing is decided by this court in Mead v. United States (2 G. Gis. B., 224).
    Tbe doctrine of tbis case of Gomegys v. Vasse {supra) as to finality, etc., of an award by tbe commissioners, is very forcibly reasserted in tbe opinion by Justice Field in tbe case of United States v. Flint (4 Sawyer, 42, 71).
    I cite tbis case of United States v. Flint simply because of its bearing .upon tbe case which we cite under another bead of Judson v. Oorcoran (17 How., 621), and which was controlled by the provisions of tbe act of March 3,1849 (9 Stat. L., 393), and was to carry into effect tbe provisions of tbe same treaty of Gu.adalou.pe Hidalgo, for tbe enforcement of which, the statute brought into view in said case of Flint was passed.
    The powers of the two commissions, created by these two statutes respectively, were substantially identical, and, if the decisions of the commissioners in the case of Flint were conclusive, then they are equally conclusive in the case of Judson v. Cor cor <mi, cited below.
    These cases, holding that a government coming into possession of the property, or the proceeds of the property, of a citizen is under a “perfect” obligation to compensate that citizen for the property whether the obligation is suable or not, and that the government thus becomes a quasi trustee, might be indefinitely multiplied.
    But I will conclude my reference to this class of cases by a reference to the case of Ciarle v. Ciarle (17 How., 315).
    I say this case is analogous to the case at bar in every material particular, because the recovery in our case was required to be and was made before the commission and umpire in the name of the awardee; because the recovery was in his individual name, and was paid into the hands of the Secretary of State as and for his money. The only difference between the case at bar and this case of Clark is in the fact that an aggregate sum of three and a quarter millions of dollars was in the treasury which was to be divided, pro rata, between successful claimants, whereas, in our case, the recovery was in our own name and the money paid in as ours. In this respect, certainly, the difference, if there be any, is in favor of the claimant in the case at bar.
    Whilst it is true, as repeatedly stated in the authorities I have cited from the Supreme Court, that our equitable ownership of this property arises primarily out of the fact that we were the owners of the property which was the subject-matter and basis of the award, it was and is, nevertheless, true that the adjudication of the mixed commission is that which establishes and confirms our said equitable title in the fund so awarded, and becomes, as between us and the United States, a conclusive judgment, by a court of last resort, that we are said equitable owners.
    This, as we have seen, is most carefully and solemnly announced and reannounced in thé decision by Justice Story which I have quoted from Comegys v. Vasse. He there says, what we bave above quoted in substance, that the treaty gave “full power and authority to the commission to receive, examine, and decide upon the amount and validity of the asserted claim” — that “ their decision, within the scope of this authority, is conclusive and final” — that “ if they pronounce a claim valid or invalid, if they ascertain the amount, their award in the i>remises is not reexaminable ” — that “ the parties must abide by it as the decree of a competent tribunal of exclusive jurisdiction” — that “a rejected claim can not be brought again under review in anyjudicial tribunal; an amount once fixed is a final ascertainment of the damages or injury.”
    Such, precisely, in the very words of this decision, is the character of that decision.
    In the case of Judson v. Corcoran (17 How., 612), the award was made by a commission, as I have above explained, created by the act of March 3,1849 (9 Stat. L., 393). We have seen from the opinion of Justice Field in the case of Flint that an award made by an exactly similar commission, in execution of another provision of the same treaty, is declared by him to be as conclusive as the opinion of Justice Story (1 Pet., 212) makes the decision in the case of Comegys v. Vasse to be.
    The law of the opinion of Attorney-General Hoar (13 Opin. Atty. Geni., 19), of date April 10,1869, is, in effect, approved as good law, by the Supreme Court, in the case of Frelinghuy-sen v. Key (110 IT. S. It., 73, supra). That opinion had been presented, in this case of FrelingJmysen v. Key, to the court, and the court unanimously approves the law of the opinion, but denies its applicability to the case then at bar.
    Like as in the case at bar, so in the case of Gibbes, the treaty provided for a mixed commission to adjudicate the claims of our citizens against New Granada. (See treaty of September 10, 1857,12 Stat. L., 985.) It provided, in article 3, page 987, that the aggregate amount of the sums awarded be paid to the Government of the United States at Washington, in equal semiannual payments, the whole to be paid within eight years, the sums to bear interest, and the Government of New Granada pledged certain receipts from the Panama Railroad'in security for said payments.
    This makes the relations of the Government to Gibbes, as to the possession and custody of the money, identical, in point of law, with the case at bar, and yet this opinion, so approved by tb.e Supreme Court of tbe United States, at'the bottom of' pages 23-’4, says: ■
    
      u Sueb payment to our Government was, of course, intended to be in trust for parties whose claims should be ratified by the board. Mr. Gibbes’s claim was within the class of cases referable by the first article of the treaty to the board.”
    Here, then, we have a decision by the Attorn ey-General of the United States establishing our present proposition, thoroughly and to all intents and purposes, to wit, that such international awards confer upon the awardee a title in equity which is not subject to the mere whim and pleasure of the Government of the United States, but as to which the United States is the trustee for the awardee.
    What I have now gone over, I submit, establishes incontrovertibly that the award in this case, assuming that it was honestly obtained, is a legal muniment of title in the awardee, arising and growing out of the force which the Constitution gives to a judgment pronounced in virtue of a treaty of the United States with a foreign government, and which the Constitution makes the supreme law of the land.
    , Where the provisions of a treaty have been executed and carried into effect so as to invest rights of property whilst the treaty was in force, by a judicial investigation and judgment thereunder, which judgment the treaty expressly makes to be final, there the finality of that judgment can be only escaped from by the consent of the two governments that were parties to the treaty ; and the rights of property growing out of such final judgment can be divested only by such consent of the two governments.
    This question, whether rights of property invested by the operation, and in pursuance of the provisions of a treaty whilst such treaty was in force can be divested by repeal of the treaty, or by mere force of act of Congress, or otherwise than by such judicial action as is requisite for divesting all other private property rights, received a most thorough investigation in the case of The Chinese Exclusion Case (130 U. S., 581). '
    The doctrines of that case were reconsidered and reaffimed in the case of 'Fong Yue Ting v. United States (149 U. S., 698); also in Nishimura FMu v. United States (142 U- S-, 651).
    
      It is impossible to mistake or to resist tbe conclusiveness of this ease as applied to the controlling questions raised by the present demurrer.
    But in the way of making assurance doubly sure, I notice further, in support of the immediate proposition under consideration, to wit, the proposition that rights of property duly vested in virtue of the provisions of a treaty whilst the treaty was in force, can not be taken away, either by direct operation of an act of Congress, or by means of the action of a commission, or a court empowered by act of Congress to take them away in a manner not sanctioned by the constitutional pro visions protective of vested private property rights, some other cases:
    
      Reiohart v. Relps (6 Wall., 160).
    Where acts of Congress have based executive action upon the establishment of a set of facts, duly ascertained, as a condition precedent to stick executive action, and which does not invade or affect vested rights of property, there Congress may use the instrumentality of any tribunal which it may select, including the courts, for the ascertainment of such facts; but where the thing to be accomplished is the divesting of rights of property vested by operation of the law, in every such case it is beyond the power of Congress to accomplish such divestiture, except in the way prescribed by the constitutional provisions protective of vested property rights; and, in the case at bar, this can only be accomplished through a new trial, authorized by a new treaty assenting to such a new trial.
    In Cooley’s Constitutional Limitations, side page 95, top page 115,116 (fourth edition), the author says:
    “If the legislature can not thus indirectly control the action of the courts by requiring of them a construction of the law according to its own views, it is very plain it can not do so directly by setting aside their judgments or compelling them' to grant new trials.”
    Citing, in note 1, page 116, 3 Maine, 326; 4 Id., 140; ¿0 Id., Ill; 2 Chip., 77; 1 Ark., 314; 1 N. II., 190; 3R.I., 299; 4Id., 324; 15 Penna. St., IS; 4 lud., 103; 6 Id., 515; 13 La. Ann., 175; 26 Md., 194; 43 Ala., 224; Id.,. 173; 29 Mich., 59; 32 Wis., 409; 26 Cal., 135; 47 Miss., 686; 37 Md., 64. To these we might add an endless number of cases, as, for example, 31 Gratt., 105; 10 Sin. and Mar., 301; 2 Watts and Sargent, 271, etc.
    It is because this is unquestionable law, and also because it is not competent for Congress, either by direct legislation or by the indirection of directing a court to do so, in á way not known to the Constitution and laws of the United States, to divest vested property rights, that it is impossible for Congress, by the means appointed by this act, to take from the citizen his rights, vested in virtue of the treaty, and the award thereunder. Murray’s Lessee v. Hoboken Land Oo., 18 Wall., 276; Railroad Oo. v. Minnesota, 134 U. S., 418, 455-6-7; Webster v. Cooper, 14 How., 495; Oreen v. Biddle, 4 Wheat., 84; Van Hof man v. Quiney, 4 Wall., 553; Willdnson v. Leland, 2 Pet., 657; Leffingwellv. Warren, 2 Black., 605; MeOrac hen v. Hayward, 2 How., 608; Sinking Fund Gases, 99 U. S., 719; Shields v. Ohio, 95 U. S., 324; State v. Warren, 28 Maryland, 328; Lucas v. Sawyer, 17 Iowa, 517; Miller v. Railroad Go., 21 Barber, 519, approved in 95 U. S., 325Commonwealth v. Fssex County, 79 Mass., 253; Dimrtis Administrator v. Sargent, 101 Mass., 326; People v. Auditor, 9 Mich., 327; La Forge v. Maga, 6 California, 650; Pembroke v. Fpsom, 44 New Hampshire.
    The effect of the recission of the treaty, and of the award thereunder, upon the claim of the citizen, is this most vital one: Before the treaty and award, the claim itself was property, it is true, but property arising out of the same implications of the common and public law which imply and create a right of remuneration against a wrong-doer growing out of the fact of the sufferer’s ownership of the property lost, and his wrongful deprivation thereof.
    This property right, the authorities declare, exists in the absence of all treaties and of all remedies, and springs out oí the wrongful invasion of the ownership of said property, and “travels with it.” (1 Pet., 217.) It does not have in it (at least where the wrongdoer is an individual citizen of a foreign state, and ot the foreign state itself) any element of international character or obligation.
    But this claim and right of property is, as to its foundations, radically changed after it has become merged in the award of an international commission, adjudicating, finally, under a treaty. When this has occurred, our Government has come into relations with said adjudicated right, and the claim has become international and diplomatic in its foundations. The Government has then assumed political obligations, as between it and its citizen, the awardee, and, also, as between it and the other government.
    This assumption has been accomplished by a compact or treaty between the nation of the wrongdoer and the United States. It has been by this treaty submitted to a high international court of exclusive and final jurisdiction. (1 Pet., 112.) That court has, by its solemn and final judgment, declared and established the title in the claimant.
    This title, so established by the treaty, has, whilst the money awarded is in the hands of the successful government, the peculiarities which are asserted by the court in the case of Frelinghuysen v. Key and Boynton v. Blaine (supra). That peculiarity is, as we have seen, that, whilst the matter is in fieri, the successful government is entitled to such control of the award, prior to its being paid over to the citizen, as that the Government may, owing to the presence of any frauds of the awardee, dispose of it in such way as is required by the dictates of honor and of public law. But, subject to this power and right in the Government, the effect of the treaty, and of the award thereunder, is, in the absence of all wrongdoing by the awardee, to invest the awardee with the full equitable ownership and title in the award, of which he can not be deprived, except in some way by which the vested property rights of the citizen can be taken from him. And, where the Government is the taker, in the absence of all wrongdoing, as aforesaid, it must be taken under all the conditions which attach to the assertion of its right of eminent domain.
    The next proposition I wish to submit is that a final judgment by a commission, made under a treaty, as in the case at bar, can only be set aside by the assent of the two parties to the treaty. I submit that, so far as our Government is concerned, its consent to an international bargain vacating an award made final by a treaty, can only be given through the action of the President and Senate, acting under the treaty clause of the Constitution.
    And right here, in passing, I may remark that the fifth section of the Act of Congress of June 18,1878 (20 Stat. L., 144), gives no countenance to the contention set up by our adversary that an act of Congress, as distinguished from a retrial, “in tbe manner agreed on between tbe United States and Mexico ” (as provided for in said section 5), could set aside sucb award without resort to a treaty providing for a new trial.
    Tbe section specifies one specific event, on the happening of which the President’s right to detain the money is terminated. That specific event was the attainment of a retrial and decision “in the manner agreed on between the United States and Mexico,” thus showing that Congress regarded a new trial as possible only in virtue of a new treaty.
    The words which follow this provision relating to such new trial, to wit, the words “or until Congress shall otherwise direct,” have no reference to some other mode of securing a retrial, or some other mode of divesting the awardees of their property rights than by a retrial so agreed upon, but have reference merely to some other termination of the retaining by the President of the money than by the attainment of the new trial and decision alluded to in said connection. These words, “or until Congress shall otherwise direct,” contemplated that Congress might terminate in any way that was competent the retention of the money.
    But I do not allude to this section 5 because I suppose that Congress could legislate away the rights of the awardee at its own mere pleasure. 1 allude to it simply as persuasive, and as indicating that there is nothing in the section which indicates that Congress was of opinion that it might so legislate as to destroy the award by the mere force of its own law.
    And right here it is most important to call the attention of the court to the fact that this construction of section 5 for which we contend, to wit, that it was not the intention of such section to prohibit the executive from determining the question of a new trial under the treaty, on the one hand, or paying the money over to the awardee on the other, but. was the intention of said section to leave that matter wholly with the executive and treaty-making power, is distinctly asserted by what, by the public records, appears to be the unanimous opinion of the Judiciary Committee of the Senate, as stated in Senate Eeport No. 712, Forty-sixth Congress, second session, made by said committee, and which committee was composed of Messrs. McDonald, Thurman, Bayard, Garland, Lamar, Davis, Edmunds, Conlding, and Carpenter — certainly one of the most, if not the most, exalted body of lawyers, jurists, and statesmen then in America.
    
      Turning, now, to the opinion of Chief Justice Waite in the case of Frelinghuyson v. Key {supra), we see that that entire opinion proceeds upon the idea that the vacation of the award could only be accomplished by the consent of the two nations. It fortunately so says in terms. It delares that the award, as between the two nations, is final (p. 72); that Mexico could not refuse payment; that “ what she asks is the consent of the United States to her release from liability under t)he convention on account of the particular awards now in dispute.” The court then adds that it has no doubt of the right of the United States to treat with Mexico for a new trial (pp. 72-74).
    This opinion of Chief Justice Waite thus impressed, as it is most manifestly, with the holding that a new trial, setting-aside the finality which the opinion asserts the award has, as between the two governments, could only be accomplished by means of such new trial as a new treaty might authorize, is enforced, and in its totality sanctioned by the opinion of the Supreme Court in the case of Boynton v. Blaine, and I therefore say that these decisions prohibit any new trial that shall deprive the awards of their finality, except such new trial as shall be authorized and provided for by a new treaty.
    Regarding this point of the power of Congress to transfer to some other officer or department of the Government duties which the treaty-making clause imposes upon the President and Senate, see Cooley’s Constitutional Limitations, side page 115; Attorney-General v. Brown, 1 Wis., 522; State v. Kennan, 7 Ohio St., 546; JDavis v. State, 7 Maryland, 161; Bridges v. Shaleross, 6 West Virginia, 562.
    In principle, all that class of cases which hold that where the Constitution confers the power of appointing to office upon the executive department such appointments can not be made by the legislative department, go to the same effect as the authority just quoted from Cooley.
    One such case is that of Wood v. United States (15 O. 01s. R., 151).
    And see the reasoning and authority in the opinion of the Chief Justice at page 161 in said case. (State v. Kennan, 7 Ohio St., 546; JDavis v. State, 7 Maryland, 161; Taylor v. Commonwealth, 3 J. J. Marshall, Ky., 404.)
    5. But suppose that I am wrong in this, and that the “ consent” of the two governments to the setting aside of this final award may be given, for example, by means of acts of the supreme legislatures of the two governments concurring in giving this “ consent,” or in some other inconceivable way, no odds how. I assert that then, and even in that case, the giving of that consent is a political transaction involving the discretions, etc., thatpertainto the exerciseof legislative power and control; and that, even in that ease, it is utterly beyond the power of Congress to transfer to the courts of the United States the jurisdiction to exercise these political discretions and to finally adjudge them.
    The case of United States v. Ferreira (13 How., 40), where the opinion was by Chief Justice Taney, decides what the syllabus thus states:
    “An act of Congress having authorized the district judge of the United States for Florida to adjudicate on claims for injuries suffered by inhabitants of Florida by the operations of the American army in Florida, which claims were to be paid if the Secretary of the Treasury should, on the report of the evidence, deem it equitable: Held, not to be an authority to exercise any of the judicial power of the United States under the Constitution, and that the judge acted as a commissioner, and no appeal lay to this court.”
    This case of Ferreira is cited with approval in the leading case of Murray’s Lessee v. Sobolcen Land a/nd Improvement Oo. (18 How., 280). Fx parte Gaines (5 McCreary, 395).
    The same thing is enforced in the last opinion written by Chief Justice Taney, the case appearing first in 2 Wallace, 561, but the opinion of the Chief Justice was not published until in the appendix to 117 United States Reports, 797. At page 702 the pith of this opinion by the Chief Justice is found in this sentence:
    “ Nor can Congress authorize or require this court to express an opinion on a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and the process of execution awarded to carry it into effect.”
    On page 704 this sentence is found in said opinion:
    “It is very clear that this court has no valid power over these special tribunals, and can not, under the Constitution, take jurisdiction of any decision upon appeal unless it was made by an inferior court exercising independently the judicial power granted to the United States. It is only from such judicial decisions that appellate power is given to the Supreme Court.”
    
      In view of these authorities, it is impossible to doubt our position, asserting that it is not within the power of Congress to confer upon the courts the discharge of political duties intrusted by the Constitution to the President and Senate.
    The act does not stop at authorizing this court to find out whether the award was obtained by fraud on the part of La Abra Company, and at authorizing the President, if the court should find in the affirmative, to return the money to Mexico. On the contrary, it contains on its face, and in its very letter, the following' additional elements:
    It does not purport to nor stop at authorizing the court to make an investigation and finding of facts for the information of the executive and treaty-making power; but, on the contrary, expressly authorizes this court to render a final judgment or decree in equity, according to the principles of equity and justice, and to enforce the same by injunction, or other proper final process, and gives jurisdiction, on appeal, to the Supreme Court of the United States in the same manner; and authorizes the courts to decree a bar and foreclosure against said awardee of all claim in law or equity to the moneys awarded.
    The act does, therefore, attempt to hand over to the courts, as courts, the entire field of inquiry, discretion, determination, and administration which was occupied by the treaty-making power of the two governments when it made the treaty, and also the field occupied by the Executives of the two governments in conducting the trial before the mixed commission; also the field occupied, explored, and passed upon by the mixed commission in making the award; also the field occupied by the President in considering and deciding upon the question of presenting to the Senate for ratification a new treaty vacating the awards aud providing for a new trial; also the field occupied by the Senate in considering such new treaty submitted to it, and in rejecting the same; also the field which would be occupied by the mixed commission if a new treaty, providing for a new trial, were duly ratified.
    The organization and action of a mixed international commission, under and by virtue of a treaty, duly agreed upon and ratified, by action of the President and Senate, with a foreign nation, is a court of the United States, created, recognized, and acting under the express authority of the Constitution and laws of the United. States; and its adjudications, as such court, are possessed of the same qualities, in the way of investing title, and as to conclusiveness and finality, that belong to the final adjudications of the other courts of the United States ; but in the case of awards upon private claims, subject to the condition and qualification that, owing to the Government’s trust and governmental relation to the treaty, the award, and the citizen claimant, it may, while the matter is in fieri, and where there is shown to the Government “probable cause” to believe that the award was obtained by the fraud of tire citizen, there the Government may assent to the granting of a new trial by means of a new treaty, and this without making itself liable to the citizen for the overthrow of his award.
    That which makes such mixed commission one of the courts of the Constitution is the fact that such court is, and at the date of the Constitution was, a well-known instrumentality and power, created by and existing under the law of nations ; and that the law of nations is, by the Constitution, made to be, and is, part of the laws of the United States.
    “ The law of nations, although not specially adopted by the Constitution or any municipal act, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation, subject to modifications on some points of indifference. Indeed, a people may regulate it so as to be binding upon the departments of their own Government, in any form whatever; but with regard to foreigners, every change is at the peril of the nation which makes it.”
    A conclusive indication of the existence, presence, and force of the law of nations over the people of the United States, not merely as a vague and persuasive moral influence, but as positive and strict law, is to be found in the way in which statutes of the United States assume that existence, and base the legislation upon that assumption. Nearly the- entire body of the laws of war have existence only in and by virtue of the law of nations.
    Section 563 of the Revised Statutes of the United States, defining the jurisdiction of the district courts of the United States in paragraph 17, assumes the existence of the law of nations as furnishing grounds for criminal prosecution in case of the violation thereof, and gives the district courts jurisdiction thereof.
    
      In Insurance Go. v. Canter (1 Pet., 545-6), in an opinion by Chief Justice Marsha]!, it is declared that a case in admiralty does not in fact arise under the Constitution or laws of the United States — that these cases are as old as navigation itself — and the law of admiralty and maritime jurisdiction, as it has existed for ages, is applied in our courts to cases as they arise.
    This is, in effect, an assertion that the law of nations is the foundation of all admiralty jurisdiction.
    The finality which is given to all judgments of condemnation in prize courts disposing of the question' of title to the property captured, and which sentence of condemnation extinguishes the title of the original owner conclusively and forever (Wheat-on’s International Law, 282-3; Wheaton, 78; 2 Dallas, 1; 7 Oranch, 423), is a finality given to such judgments by the law of nations, and by the law of nations alone, and it gives this finally in the absence of all statutes and of express constitutional provisions.
    That rule which extends the general territorial jurisdiction of a nation into the sea as far as cannon shot will reach and no farther (1 Kent, 29), and which was generally calculated to be a marine league, and which is recognized by our act of Congress of June 5,1794, chapter 50, is itself the creature of international law, aud has its force in nothing else.
    But what is still more conclusive, is that this is so held by the Supreme Court of the United States in the case of JEstrealla (4 Wheaton, 298).
    I have made these references to the existence of the law of nations in this country, not, as I have said, for the mere purpose of establishing that existence generally and indefinitely, but for the purpose of establishing the point that where the law of nations has play and control its precepts, rules, and requirements become positive, “perfect,” and strict rules of obligation and of property.
    This being established, as it abundantly is, it results that when, by the law of nations, a court or tribunal is, by means of a treaty, constituted with power to finally adjudicate the question of title to a private claim, then that adjudication is the judgment of a real court of the Constitution, having the qualities of all other final judgments, with this difference only, where the judgment is for a private claim.
    
      But the conditions and circumstances which control the propriety and right of giving such consent are likewise defined by the law of nations. Yattel, in his work on the Law of Nations (s. p. 270), says, speaking of such arbitrations:
    “ These [the subjects-matter submitted] constitute the whole of what is submitted to the decision of the arbitrators; and it is upon these points alone that the parties promise to abide by their judgment. If, then, their sentence be confined within tli ese precise bounds, the disputants must acquiesce in it. They can not say that it is manifestly unjust, since it is pronounced on a question which they have themselves rendered doubtful by the discordance of their claim, and which has been referred as such to the decision of the arbitrators. Before they can pretend to evade such sentence, they should prove, by incontestable facts, that it was the offspring of corruption or flagrant partiality.”
    Either Congress has the power or' right, by the force of its own legislation, to abolish this award, or it has not'such power. What I have gone over abundantly shows that it has not such power, because the award establishes vested property rights which can not be taken away by mere act of Congress, nor otherwise than by l< due process of law.”
    Hot having such rights, then, assuming even that Congress can give the consent of the United States to the annulment of the award by means of the final decree of one of the courts of the United States, that jurisdiction, so given to the court, must be exercised subject and according to the known principle of law controlling the adjudication of such a subject-matter.
    Here the subject-matter is whether a final judgment of one of the courts of the Constitution ought to be canceled and vacated by decree of court; and, hence, the rules which are applicable in courts of equity in such a case, and as to such a subject-matter, must, upon general principles, be applied according to the principles governing courts in overthrowing a judgment or decree of one of the courts of the country.
    Hence, there can be no possible question but that, if this act is operative at all in giving the jurisdiction which it attempts to give, this court must proceed to determine whether it will overthrow the award on the principles which courts of equity follow in a case for canceling an award, judgment, or decree rendered in other courts, and must require at least as much evidence as is required for such cancellation in other cases.
    
      I say “at least” here, because, if the rule which I have quoted from Yattel is followed, then the award must not be vacated (where it is within the submission) even on what Avould overthrow an ordinary judgment, because (here quoting again the words of Yattel) “before they can pretend to evade such a sentence they should prove, by incontestable facts that it was the offspring of corruption or flagrant partiality.”
    My contention is that this degree and character of proof alone is sufficient, in a tribunal where there is competent j axis-diction, to vacate an international award.
    The leading authority which I cite in support of our proposition that section 1, taken by itself, prescribes a rule for reaching the final decree that is repugnaut to the general prin-cipies of law, and is, therefore, unconstitutional, is found in the case to which I have already alluded, of United States v. Throck-morton (98 U. S., 68). Paragraph 2 of the head note to said case exactly expresses what the holding of the court was in this case touching the present point:
    “The frauds for which a bill to set aside a judgment or a decree between the same parties, rendered by a court of competent jurisdiction, will be sustained are those which are extrinsic or collateral to the fraud, and not a fraud which was in issue in the former suit.”
    In this Throckmorton Case the decision had been reached, in the District Court of the United States for California, which that case sought to overthrow a decree of the District Court of the United States by showing that such decree was obtained by means of both perjury and forgery. These were not extrinsic or collateral facts or frauds; but were matters that were in issue in the said case in said District Court, and hence the court refused to overthrow the former decision by reason of said fraud.
    How, it will appear, by the discussion of the facts shown by the complainant’s bill and exhibits, that every fraud which the bill sets up as a ground for vacating the award was in issue before the arbitrators and umpire.
    The law of the Throckmorton Oase is affirmed, or at least recognized as good, in the following cases, and many others: Railroad Go. v. Railroad Co. (Ill U. S., 520); Malm v. Har-wood (112 U. S., 365); United States v. San Jacinto Tin Go. (10 Sawyer, 641); Railroad Go. y. United States (108 U. S., 512); Vanee v. Burbanlc (101 TJ. S., 520); Moffat v. United States (112 U. S., 32; United States v. Minor (114 U. S., 241); McDer-mott v. Copeland (9 Federal Beporter, 537); Graham, y. Railroad Go. (14 Federal Beporter, 760); Railroad Go. v. Railroad Go. (2 McCreary, 229).
    Next, Congress is totally with out jiower to prescribe tbe rules and legal principles by which the court shall reach its decree upon a specific subject-matter committed to the jurisdiction of the court under the requirement that it shall be adjudicated accordingtolawánd equity,or committing such specific subject-matter to the final adjudication of the court without any requirement as to how the decree shall be reached. This is as unquestionable law as is the proposition last considered.
    In the case of United States v. Klein (13 Wall., 328, supra), the proviso in an appropriation act, approved July 12,1870 (16 Stat. L., 235), undertook to prescribe what effect as evidence, or rather want of effect, a pardon by the President should have in any and all cases where a claimant sued in the Court of Claims of the United States.
    That proviso enacted, among other things, that “no pardon or amnesty granted by the President shall be admissible in evidence on the part of any claimant in the Court of Claims as evidence in support of any claim against the United States, or to establish the standing of any claimant in said court, or his right to bring or maintain suit therein,” etc., and it prohibited the court from considering such pardon as any part of the proof to sustain the claim, and required loyalty to be proven irrespective of the effect of the pardon. It also required the court to dismiss the case unless loyalty was proven otherwise than by the pardon or amnesty. This proviso was held to be unconstitutional.
    This case is reaffirmed or recognized as good law in a multitude of cases, for example: Great Falls Mfg. Go. v. Attorney-General (124 U.S., 599); ffyrty. United States (118 U. S., 67); Knote v. United States (95 U. S., 153); The Laura (8 Federal Beporter, 617).
    To the same effect as that just quoted from the case of United States v. Klein is the following laid down in Cooley’s Constitutional Limitations (fourth edition), at top pages 110 and 111, side page 91, where the author quotes — first, from Bates v. Kimball (2 Chip., 77); next, from Frvine’s Appeal (16 Penna. State, 266), and from Newlandv. Myrsh (19 Ills., 382); Greenough v. Greenough (11 Penna. State, 494); Deehastellux v, Fairehild (15 Penna. State, 18); Trustees, etc., v. Bailey (10 Florida, 238).
    It is unnecessary further to pursue this matter, because the proposition which I now assert, to wit, that where one of the courts had jurisdiction to adjudicate a case according to law, it is not within the power of Congress, while that jurisdiction remains, to prescribe rules for that adjudication which it may prefer.
    
      Mr. George Tielcnor Curtis and Mr. George 8. Boutwell for defendants in support of the demurrer:
    Congress has no constitutional power to confer on a municipal court of the United States jurisdiction to review, revise, or set aside an award made in favor of a citizen by an international tribunal of arbitration, constituted under a treaty between the United States and a foreign government.
    Perhaps the counsel of the United States will endeavor to rest the jurisdiction of the court, and the authority of Congress to confer it upon the clause of the Constitution which extends the judicial power to controversies to which the United States shall be a party; but this necessarily means judicial controversies or cases in which the United States shall be a party by reason of some interest in the subject-matter. Congress can not arbitrarily make the United States a party plaintiff in a suit against a citizen where the United States has no interest in the controversy.
    The act June 18, 1878, was an act passed to authorize and direct the Secretary of State to receive the moneys paid in by Mexico and to distribute them among the several claimants in whose favor awards had been made, excepting in the case of Weil and La Abra Mining Company; that in these cases the President, before he makes any payment, is requested to investigate the charges of fraud, and that if he shall be of opinion that the honor of the United States, the principles of public law, or considerations of justice and equity require that the awards, or either of them, should be reopened and the cases retried, that he will withhold payment until the case or cases shall be tried and decided in such manner as the governments of the United States and Mexico may agree, or until Congress may otherwise direct.
    
      It is perfectly apparent, first, that this act conferred on the President no power to negotiate or withhold payment that he did not possess as a constitutional prerogative of his office without it. Second, that after President Arthur had investigated and negotiated the new treaty with Mexico, and two-thirds of the Senate were not satisfied that the evidence submitted as the result of the investigation sustained the charge of fraud, the power of the Government of the United States, whether exercised by President Arthur independent of or in compliance with the act of Congress, was spent. Third, that the reservation to Congress by the words “ until Congress may otherwise direct,” clothed in its legislative capacity with no authority whatever to legislate in what manner, or by what means or device, a decision of an international tribunal in favor of a citizen of the United States is to be set aside and his title to the money awarded him, is to be rendered null and void. Congress had, before this reservation in the act oí 18 7S, just the same power of legislation on the subject, just the same power to direct the Executive, that it has now after the reservation ; that is to say, it had and has no power at all in the case.
    The ivhole of it was a work of supererogation. It was not needful to employ the Secretary of State, by a §pecial law, to receive this money and distribute it to the parties in whose favor awards had been made, nor was it necessary for Congress to interpose and direct the President to make an exception in these two* cases of Weil and La Abra Company. This act evinces on its face that its promoters were fearful that if they did not procure the interference of Congress the claimants would get their money. But under such treaties as that of July 4,1868, between Mexico and the United States, it is an ordinary executive function and duty, resulting as an incident from the execution of the treaty, for the President of the United States, acting through the State Department, to receive such moneys and to distribute them to the parties in whose favor awards have been made.
    It is an established principle that a judgment of a competent judicial tribunal, when once it has become final, can not be varied or in any way affected by the legislative power, yet this is what Congress has undertaken to do by the law which authorizes and directs this suit. It necessarily assumes that the mixed commission between the United States and Mexico had full jurisdiction of the claim made by Weil on the G-ov-ernment of Mexico, and the award of the umpire was final and conclusive by the terms of the treaty. It could not be otherwise.
    But now, seventeen years after the award was made, after papers had been lost and witnesses have died, Congress undertakes to authorize the Court of Claims to revise, review, and set aside the judgment of the international tribunal. The act of Congress plainly makes the present suit a bill of review, because it directs the court to adjudicate on the same evidence that was before the commissioners and on such further evidence as either of the parties may offer. This is equivalent to a legislative act granting a new trial in a case which has passed into judgment by the action of a judicial tribunal.
    The interference by the legislative department was wholly a work of supererogation, and was, moreover, without the slightest constitutional power. The act conferred on the President no power of investigation that he did not possess before. It was not needed as a direction, for when a foreign nation complains of anything in the execution of a treaty, the complaint is properly addressed to the President of the United States, and it is one of his official prerogatives and duties to entertain the complaint and to act upon it as he thinks proper. It was not needful for Congress to confer on the Secretary of State, by a special law, authority to receive the money from Mexico and to distribute and pay it to the p'arties in whose favor awards had been made, nor was it necessary for Congress to interpose and authorize or direct the President to make an exception in the two cases of Weil and La Abra Mining Company. Under such treaties as that of July 4,18G8, between Mexico and the United States, it is an ordinary executive function and duty, resulting as an incident in Die execution of the treaty, for the President of the United States, acting through the State Department, to receive such moneys and distribute them to the parties in whose favor awards have been made.
    The reservation made in the act of Congress by the words, u or until Congress may otherwise direct,” clothed it in its legislative capacity with no authority to legislate in what manner, or by what means or device, a decision of an international tribunal in favor of a citizen of the United States is to be set aside and Ms title to the money awarded him is to be rendered nail and void. Congress had before this reservation, in the act of 1878, just the same power of legislation on the subject, just the same power to direct the Executive, that it has now after the reservation; that is to say, it had and has no power at all in the case.
    These positions are fully borne out by the opinion of Mr. Chief Justice Waite, in the case of Frelinghuysen v. Key (110 U. S. R., p. 63).
    There is nothing whatever in the opinion or the reasoning of the court which in any way warrants the assumption that Congress in its legislative capacity, or either house of Congress in its legislative capacity, can investigate the merits or honesty of the original claims with a view to legislating for some mode of retrying them in a court of the United States, or otherwise. After the Senate had nonconcurred in the Frelinghuysen convention, everything that the honor of the United States required to be done in the premises had been done and performed, and done and performed by the proper department, namely, the diplomatic power. The reason for which the Supreme Court refused to grant the mandamus asked for, namely, that the two governments were negotiating, had spent its force when the Senate rejected the new treaty. It became thereupon the duty of the Secretary of State forthwith to distribute and pay the money in his hands to the parties entitled by the awards to receive it. With that duty, Congress, in its legislative capacity, could not interfere; for the very plain reason that the diplomatic power, on full consideration, had decided, in that branch of it which is fully coordinate with the other branch, that no sufficient reason existed for setting aside or disturbing these awards. The very question submitted to the Senate was whether the awards were based upon fraud.
    The idea that Congress can confer jurisdiction on a court of tbe United States — a municipal tribunal — to review, or overhaul, or rejudge a decision of an international tribunal of arbitration constituted under a treaty, is a mere chimera. In the first place, an international tribunal of arbitration is no part of the judicial power of the United States, and its decisions are not reviewable and can not be made reviewable in a court of the United States. It is a voluntary tribunal, resorted to and constituted by an agreement between two nations. It is a tribunal known only to tbe law of nations. Its jurisdiction is both original and final in respect to the matters submitted to it.by the sovereign parties. When it has acted and been dissolved, the matters submitted to it are finally determined. There is generally a clause inserted in such treaties — there was in this treaty of July 4,1868, with Mexico — binding each of the sovereign parties to abide by and carry out the decisions of the international tribunal. This has been the general practice for more than ninety years. But without such a clause, the decisions of the international tribunal on the merits of all claims submitted to it are final and conclusive, and the only process by which such finality and conclusiveness could be taken away was by a new treaty between the sovereign parties.
    
      Mr. Robert B. Lines, special assistant to the Attorney-General, for the complainants:
    
      The specific moneys whose disposition is directed by act of Congress of December 28, 1892, to be determined by this suit, were moneys of the United States, and were not, before the passage of that act, subject to any right, legal, equitable, or moral, of defendants thereto.
    
    1. Said moneys were part of a “balance,” or excess in value of certain American claims against Mexico over certain Mexican claims against the United States, which values were ascertained by a board of diplomatic commissioners (one from each country and a third in dispute) appointed under the treaty of 1868 between the two countries, and which balance was paid to the United States by Mexico at the rate of $300,000 per annum, commencing January 31, 1877, and ending January 31, 1890.
    For this reason, as well as for the reason that under Article II of the treaty all claims and evidence were to be presented only by the respective governments, the moneys received on account of the “awards” are to be treated as public moneys. (Frelinghuysen v. Key, 110 U. S., 63; Boynton v. Blaine, 139 U. S., 306; U. S. ex reí. Angarica v. Bayard, 127 U. S., 251-259.) ■
    2. It is conceded, as argued by defendants, that a claim of an American citizen against a foreign government is private property, passing by assignment, voluntary or involuntary, and forming assets in his estate; that a judgment on such claim in his favor, rendered by a court of competent jurisdiction, in a suit between bim and sucb foreign government, is also property; and that such a judgment can only be set aside or vacated' by judicial proceedings between the same parties, and not by legislative, action; but
    3. Either claim or judgment may, like other property, be taken by the United States for public use, by means of a treaty with such foreign government releasing it from the demand of the citizen. (Gray, ad/mr. v. The United States, 21 O. Cls. IS.., 340-393; Meade v. The United States, 1 O. Cls. 11., 224, and 9 Wall., 691.)
    Such a release and appropriation was effected by Article V of the treaty of 1868, with respect to .all claims on Mexico arising prior to its ratification — the appropriation taking effect November 20, 1876.
    That article stipulated that every American claim against Mexico, “ arising out of any transaction of a-date prior .to the exchange of ratifications ” of said treaty, should, “ whether or not the same may have been presented to the notice of, made, l>referred, or laid before the said commission,” “be considered and treated as finally settled, barred, and * * * inadmissible ” “ from and after the conclusion of the proceedings of the said commission,” which proceedings, under -convention of April 29, 1876, were concluded November 20,1876. This stipulation was in consideration of the future payment of such balance by Mexico and of a Similar stipulation on'her part releasing the United States from ail Mexican claims arising prior to said date of ratification.
    4. For the appropriation of his property by the United States the citizen has a claim for “just compensation,” justiciable in the Court of Claims .as on an implied contract, unless expressly excluded from the j urisdiction of that Court. (Grant v. The United States, 1 C. Cls. B., 41; Great Falls Mfg. Go. v. The United States, 16 C. Cls. It., 160, and 112 U. S., 645 j Russell v. The United States, 5 C. Cls. 1Í., 121, and 13 Wall., 423; Ailing v. The United States, 114 U. S., 562; Meade v. The United States, supra.) But upon the money, territory, or other thing resulting to the United States from the public use of the citizen’s claim, or judgment, or other property, by way of exchange with some other government, or otherwise, the citizen has no lien whatever. If his government use his claim to buy territory, as in the treaties with France of 1803, Spain of 1819, and Mexico of 1848, the land does not belong to the citizen any more than tlie sovereignty ceded with it. If it exchange bis claim or judgment against Mexico for the claim of some Mexican against itself, the citizen is not subrogated to the rights of the Mexican claimant. The claim or judgment may be relinquished in exchange for some purely political concession, such as a release from a burdensome alliance, as in the treaty with France of 1800, and whether the relinquishment effect one claim or many, and whether, if many claims are released for a money consideration, the latter be paid in lump or in specific sums apportioned to each claim, it belongs to the government and not to the citizens whose claims are thus dealt with. (Rustomjee v. The Qxieen, L. B., 1 Q. B. Div., 487, andL. B., 2 Q. B. Div., 69, 73; Burnand v. Rodocanachi, L. B., 7 App. Gas., 333; Great Western Ins. Go.y. The United, States, 21 O. Ols. B., 206, and 112 U. S., 193, and mandamus cases first above cited.) All the citizen can demand from his own government is u just compensation ” according to the value of his claim or judgment, without regard to the value of the thing received in exchange.
    5. If it be said that the treaty of 1868 did not operate an appropriation for public use, because the taking was not by “ due process of law,” one answer is, that this constitutional guarantee was waived by the citizen who, after the ratification of the treaty and with full knowledge of its terms, presented his claim to his Government to be disposed of in accordance therewith. The citizen consented to the public use and looked forward to future provision for compensation. (Grantv. The United, States, supra; Great Ralls Mfg. Go. V. The United States, supra.)
    
    6. The status of the moneys received from Mexico under the treaty of 1868 differed totally (before the act of 1892 was passed) from that of the moneys received from sales of captured and abandoned property under Act of March 12,18G3 (12 Stat. L., 820), casesarising under which are relied upon by defendants. That act provided, in section 2, that such property might be appropriated for public useupon appraisement and certificate, or sold and the proceeds paid into the Treasury, subject (under sec. 3) to future suits in the Court of Claims. With respectto property so sold it was decided in such suits that the title was not divested and that the proceeds were held by the Government in trust for fihe owners. With respect to property appropriated for public use it must have been held (if any suits had been brought before the act of July 4,1864, took away the jurisdiction of the Court of Claims) that the title was divested and that the remedy was by way of suit for “just compensation,” without regard to the use to which the property had been put. (Grant V. The United States, supra. Great Falls Mfg. Co.v. The United States, supra.)
    
    7. While the moneys received from Mexico were moneys of the United States, they were not in the Treasury in the meaning of paragraph. 7, section 9, Article I of the Constitution, providing that no moneys shall be “ drawn from the Treasury” except on appropriations by Congress. They were, nevertheless, subject to the control of Congress, which might have directed them to be covered into the Treasury, or to be otherwise disposed of. Of our numerous “claims conventions” fifteen have expressly provided (unlike that of 1868) for distribution to private claimants. (Senate Beport 1316, first session Forty-ninth Congress, p. 13.) In other cases such distribution has been made by the Executive, without invoking legislation. The right of the Executive to make distribution in such a case is not in question here, since Congress has .acted. His right to return to a foreign government moneys collected on unjust claims has beeu asserted and recognized. (Case of the Caroline, Senate Ex. Doc., 52, 1st sess. 43d Cong.) The property of the citizen, which Article V of the treaty appropriated from November 20, 1876, was merely a claim, and not a judgment.
    1. Article Y, in terms, released Mexico from all “claims” arising out of transactions prior to ratification, “ whether or not the same may have been presented to the notice of, made, preferred, or laid before the said commission.” This language expressly includes “ claims ” which had been presented to and passed upon by the commission, and treats them as “ claims” after the awards or assessments of value had been made.
    2. Although Article IY speaks of “ awards in favor of citizens” and “awards to citizens,” that language is not to be taken as indicating that the governments regarded these awards as “judgments” in the legal sense. Such language is common in claims conventions. Sometimes, as in the treaty of 1859 with Venezuela, citizens are spoken of as parties to the convention, but this language, of course, does not make them such parties.
    3. For a “judgment” to be rendered there must be parties free to sue, and a suit in due form in a court of competent jurisdiction.
    
      
      (a) No citizen could sue before tbe commission established under the treaty of 1868. Claims could not be presented to ' that commission except by the governments parties to tire ' treaty. Evidence and argument in support of claims could" only be adduced by the governments. The award in this case ■ was “ thatthere be paid by the Mexican Government, on account of the above-mentioned claim, the sum of $358,791, with an : annual interest,” etc., not to La Abra Company, but, under the terms of the treaty, to the United States.
    
      (h) The commission was not, under this treaty, and could not be under any treaty, a court competent to render judgment in favor of tli e citizen against the Government. It could not m ake rulesforthe taking of evidence, or punish perjury or contempt, or enforce its judgments. It could not allow a motion for rehearing in a case once decided, except by consent of the governments. None of its members held office for life or good behavior, and but one of them was appointed by the President of either country. And, under the Constitution of the United States, and presumably under that of Mexico, the treaty-making power can not establish “courts,” no matter for what purpose, or by whom or for what term the judges are to be appointed. That power belongs exclusively to Congress, which alone can determine how and in what courts the Government may be sued, by aliens or citizens, in tort or on contract. Our consular courts were “established” by Congress, though the right to establish them was granted by treaty. (Senate Doc. No. 58, 2d sess., 28th Gong.; Dainese v. Hale, 91 U. S., 13; Boss v. McIntyre, 140 U. S;, 453.)
    4. From the foregoing it results that the commission was intended to be, and in fact and law was, a mere diplomatic agency, a “ board of appraisers ” (to use the language of the treaty of Washington) to examine the individual claims and to “ decide upon ” their value, as between the governments. Each nation agreed to pay the other no less and to demand no more than the values so found, respectively. “ Full effect” was to be, and has been, given such decisions by payment of these values by the respective governments, each to the other, “without any objection, evasion, or delay whatsoever.” (Art. II.) Thus was accomplished the object of the treaty (which was, as expressed in the preamble, “ to maintain and increase the friendly feeling between the United States and the Mexican Republic, and so to strengthen the system aud principles of republican government upon the American continent”), by wiping out all international complaints for injuries to citizens and leaving them to deal with their respective governments for compensation. The same result might have been reached by an investigation and payment of the claims through ordinary instead of extraordinary diplomatic agencies (as in the recent cases of American claims against Chile and Italian claims against the United States) ; or by awards of a commission appointed under a diplomatic agreement not ratified by the Senate (like that with Spain of 1871); or by treaty release of the claims without any present investigation, with or without payment of a lump sum on either side, and with or without express assumption of the claims coupled with provision for such future ex parte investigation and payment as was stipulated in the treaties with Spain of 1819 and Mexico of 1848. (Boynton v. Blaine, supra, citing Frelmglmysen v. Key, supra.)
    
    5. None of the Supreme Court cases relied upon by defendants are in conflict with the above propositions. All except one treat of rights acquired under acts of Congress, and the excepted case (Phelps v. McDonald, 99 U. S., 298) decides a dispute between citizens as to the proceeds of an award voluntarily paid into court by the claimant’s Government. So far as the opinion of Attorney-General Hoar, in the Gibbes Case (13 Op.), treats the award on the claim as a judgment in favor of Gibbes, it has, I submit, been overruled by the cases above cited. Moreover, it ignores the very peculiar provisions of the Act of Congress (12 Stat. L., 145, sec. 7) passed to carry out the treaty with New Granada. The act of December 28,1892, under which this suit is brought, vests judicial power and equitable jurisdiction in the Court of Claims and in the Supreme Court, and is constitutional. It does not remit to the courts a political question as to what the United States ought to do with this money, but, on the contrary, in itself solves the political question by determining the disposition of the money one way or another according to the decree of the court on the facts.
    1. Holding the moneys received from Mexico as its own, free from all obligations to the citizens with respect thereto, the Government nevertheless had a “ political trust” to discharge, an obligation “to do justice” (in the language of Boynton v. 
      Blaine and Bustomjee v. The Queen, supra) to the citizens whose claims it bad appropriated by the treaty of 1868. This was a political question, because it bad never, to use an expression from Duroussean v. The United States (6 Or., 307)been “ brought within tbe reach” of the courts by Congress. By Act of Time 18,1878 (20 Stat. L., 144), Congress in part discharged this trust by the use of a portion of these moneys, vesting a justiciable loyal interest in the same in certain citizens whose claims it had dealt with by the treaty, excluding defendants. To the extent of the appraised value of each claim this act provided “just compensation ” for its release to Mexico, and was enforei-ble by mandamus. (White v. Bayard, 127 IJ. S., 251.)
    ’ 2. In defendants the act of 1878 vested no right, section 5 reserving the moneys received by the United States in respect of the award on La Abra claim for future disposition by Congress, in case a certain decision of the President, contemplated in the act, should not be followed by the opening of the award as between the United States and Mexico. (Frelinghuysen v. Key, supra; Boynton v. Blaine, supra.)
    
    3. The act of 1892, directing this suit, was a declaration of trust, vesting an equitable interest in these moneys in defendants, subject to the condition that it should not appear, in the suit authorized by the act to discharge the trust, that the award had been obtained by the United States G-overnment by the use of false evidence presented to it by La Abra Company, its agents, attorneys, or assigns, or by other imposition upon the United States through false and fraudulent practices of said company, its agents, attorneys, or assigns. Tlie act of 1892, to the extent of the appraised value of La Abra claim, provides a method of “just compensation” for its release to Mexico.
    4. The first section of the act of 1892, setting forth the conditions of the trust assumed, and the single issue to be tried here, pervades and governs all the other sections. When, therefore, the second section uses the terms “ the principles of equity and justice” and “ according to law and the rules of said court, so far as the same are applicable,” these terms refer to principles and rules applying to suits and issues of this nature, and trusts upon these conditions.
    5. The validity of defendants’ claim against Mexico never having been adjudged between the parties to such claim, still less, between the parties to this action, this is not a suit to set aside a judgment, and tlie rules governing- such suits have no application. Intrinsic as well as extrinsic fraud may be shown. Laches or misconduct of Mexico, if such existed (as it did not), can be no defense here. When the Government consents to be sued it may prescribe the conditions on which it may be sued (Le Groot’s Gase, 5 Wallace), and so when it declares a trust and sues to discharge itself therefrom.
    But even if the act of 1892 does not vest judicial power in the courts, the Court of Claims may still proceed under it.
    The act requires the Court of Claims to find certain facts. This Congress may do for its own information and action, or for that of the President. If the decree (of injunction against defendants) which the act directs to be entered upon a finding for plaintiff can not be constitutionally rendered, that does not make the whole act unconstitutional and void. The provisions for the injunction and for the appeal are separable from the rest of the act, and the Secretary of State may distribute the money or the President may return it to Mexico, accordingly as the court find for plaintiff or defendants on the question of ' fraud. (Little Boole and Fort Smith B. B. Go. v. Worthen, 97 U. S., 102-106.) The act of 1892 was approved according to constitutional requirements.
    The bill, originating in the Senate, xiassed the House and was enrolled and signed by the presiding officers of both Houses on tlie 15th of December, 1892. For some reason it did not reach the President until December 20, after a concurrent resolution had been adopted to adjourn on the 22d for more than ten days. The President signed it on the 28tii, six days after the adjournment and eight days after it had been presented to him. This met every constitutional requirement. The President has ten days in which to determine whether he will approve a bill, and Congress can not, by adjournment, deprive him of this time for deliberation, although it may, by Such adjournment, deprive itself of the right to overrule his objections if he do not approve tlie bill. (Town of Seven Hickory v. Filery, 103 U. S., 423.) The bill of complaint filed in this suit presents a case for the exercise of the power and jurisdiction conferred upon this court by the act of 1892.
    Following, as it was bound to do, the lines laid down by the act, the bill sets forth the allegations for and against the claim as tbe. same were presented to tbe commission. It also sb'ows in full tbe evidence on wbicb tbe award was made, and charges that it was false and procured by fraudulent means, giving tbe names of witnesses and much of tbe documentary evidence relied on to support tbe charge. ' It also shows (wbicb was unnecessary in this suit, though proper in a bill to set aside a judgment, or in a motion for a new trial) when and how tbe evidence of fraud was discovered. It is for tbe court, applying tbe charges of tbe bill (and tbe evidence appended as Exhibit B) to the claim as it stood before tbe commission, to say whether a prima facie case is not presented to proceed with tbe inquiry into the facts as directed by tbe act of 1892. Even if tbe charges of tbe bill were unsupported by tbe newly discovered matter disclosed in Exhibit B, tbe court might (and, I submit, would) find a prima facie case of fraud on the evidence passed upon by tbe commission, and indeed in tbat presented by tbe claimant if there bad been none for the defense. And it might, without a particle of new evidence, reach a.decree in favor of tbe complainant upon tbe old evidence alone.
    
      Mr. Grammond Kennedy for tbe defendant, La Abra Silver Mining Company, in reply:
    1. Tbe original right of tbe defendant to tbe proceeds of the award in question does not arise from t’be convention of July 4,1868, between tbe United States and Mexico, or from tbe acts of Congress of June 18, 1878, or December 28,1892, but from tbe defendant’s ownership of tbe claim on wbicb tbe award was rendered.
    
      (a) The complainant admits, as must be admitted in view of tbe authorities cited by Mr. Shellabarger in his opening argument, that a claim of a citizen against a foreign government is property and passes by assignment, voluntary or involuntary.
    ■ (b) But it is argued for tbe complainant tbat “ either claim or judgment may, like other property, be taken by tbe United States for public use by means of a treaty with such foreign government, releasing it from tbe demand of tbe citizen;” and that “ such a release and appropriation was effected by Article V of tbe treaty of 1868, with respect to, all claims on Mexico arising prior to its ratification, tbe appropriation taking effect November 20, 1876.”
    
      (e) Instead of either government being released by the fifth article of the convention, both governments bound themselves by that article “ to consider the result of the proceedings of this commission as a full, perfect, and final settlement of every, claim upon either government arising out of any transaction of a date prior to the exchange of ratifications of the present convention.” That is, the awards of the commissioners and umpire were to take the place of all of the claims that were or might have been presented for adjudication under the convention.
    
      (d) The fifth article of the claims convention of July 4, 1868, with Mexico is word for word the same as the fifth article of the claims convention of February 8, 1853, with Great Britain. (10 Stat. L., 990.) If there was an appropriation of the claims of its citizens by the United States in the one case, there was also in the other. But the proceeds of the awards in favor of citizens of the United States under that British-American convention were paid over to them by the Secretary of State without any act of Congress, and payment was made in the same case to British subjects by act of Parliament on the express ground that they were thereto entitled under the awards of tlie said commissioners and umpire. (18 and 19 Yict., cap. 77.)
    (e) It is also argued for the complainant, in harmony with the theory of an appropriation of the claims by the United States, that “the act of 1892 (under which this suit is brought), to the extent of the appraised value of La Abra claim, provides a method of ‘just compensation ’ for its release to Mexico.” The provisions of the act and the nature of the suit which has been brought under it have been thoroughly discussed by Mr. Shellabarger, and will be merely adverted to later on.
    2. The convention under which the award was rendered in favor of the defendant was negotiated between the United States and Mexico for the settlement of individual claims of citizens of each country against the government of the other, as set forth in the preamble and Article I of the convention. Neither government released or exonerated the other from those claims, or assumed their pajrment (as the United States did in the treaty of 1819 with Spain, and of 1848 with Mexico), but the two governments simply furnished their respective citizens with a forum for the adjudication of their respective claims, the expenses of which were to be met by an assessment of 5 per cent on the awards. (10 Opin., 33.)
    (a) By Article II, each claim was to be decided in writing, and the decision of the commissioners conjointly, or of the umpire as the case might be, was to be “ absolutely final and conclusive upon each claim decided upon by him or them respectively,” and the two governments agreed to give full effect to such decisions without any objection, evasion, or delay whatsoever.
    
      (b) By Article IT, the total amount awarded in all cases in favor of the citizens of the one country was to be deducted from the total amount awarded to the citizens of the other country, and the balance was to be paid in annual installments of $300,000 to the government in favor of whose citizens the greater amount in the aggregate should be awarded.
    (c) It appears from the records of the claims commission and also from the face of Mr. Attorney-GeneraPs bill, pages 5-8, that the claims were presented to the commission, through the agents of the respective governments, in the form of memorials subscribed and verified by the individual claimants, or their attorneys, and were entered in the docket of the commission in the names of the individual memorialists, the title of this defendant’s case being 11 La Abra Silver Mining Company v. Mexico, No. 489; ” and also that the awards were made by the commissioners or umpire to the individual claimants, or on their several claims, eo nomine, as provided in the convention.
    3. Such awards to individual citizens upon their respective claims are to be distinguished (a) from an award of a lump sum to one of the sovereign parties, as in the Geneva arbitration, and (b) from a lump sum payable by one government to another in a direct settlement, as a result of diplomatic negotiations, by way of indemnity for injuries suffered by a class of persons, as (e. g.) in the fifth article of the treaty of August 29, 1842, between Great Britain and China. (British and Foreign State Papers, vol. 30, pp. 389-392.)
    (a) Therewasno adjudication or ascertainment ofthe amount due or to be paid on any individual claim in the Geneva arbitration. (Papers Relating to the -Treaty of Washington, Vol. Ill, p. 249.) The amounts due upon individual claims for irijuries inflicted by the inculpated cruisers were subsequently determined by the Alabama Court of Claims under acts of Congress. Burnand v. Bodoemiaehi (L. It.., 7 App. Cases, 333), on which the complainant relies, was decided upon the right and intention of Congress to admit the claims of owners and deny the claims of underwriters to share in the Alabama award, and is not relevant to the case at bar. The power and duty of Congress in respeet to the disposition of a sum awarded to the United States in gross for a class of injuries, without any previous adjudication or ascertainment of the losses of■ individual sufferers, are no criterion of the power and duty of Congress in respeet to awards made to individual citizens in satisfaction of their own personal claims against a foreign government, under a convention expressly providing for the final settlement of such individual claims by the adjudications of a mixed or international commission.
    
      (1>) Bustomgee v. The Queen (L. B., 2 Q. B. I)iv., 69) arose upon ' a petition of right for a share of a lump sum which was paid by China to G-reat Britain in accordance with the fifth article of the treaty of August 29, 1842 (supra) between the two countries. There had been no arbitration between Great Britain and China, no mixed commission, as in the case at bar, to ascertain and finally determine what was to be paid on each claim of the individual claimants. How clearly that case is distinguished from the case at bar on this material point appears from'the opinion of the lord chief justice. His lordship said:
    “No specific sum was ever ascertained either between the two governments, or between the British Government and the suppliant, as to the amount of the suppliant’s claim, and it is plain that no such specific sum was ever considered between the plenipotentiaries who negotiated the treaty. It is not, therefore, correct to say, as the suppliant does in his petition, that this money was ever paid to the plenipotentiaries of the Queen, Cor the purpose of paying his claim.’ ”
    (e) Where a forum and a remedy had been afforded to individual claimants by the “convention for the settlement of claims” between the United States and Great Britain, concluded February 8,1853, and Congress had appropriated tfie sum total of the various amounts awarded to British subjects by the mixed commission under that convention, the British Parliament passed an act for the distribution of the sum so paid, in the preamble of which the legal right of the individual claimants to the amounts awarded to them, respectively, is recognized as follows:
    
      u And whereas it is expedient that the commissioners of the treasury should be enabled to cause the sum payable under the said act of Congress to be distributed among the British subjects entitled under the awards of the said commissioners and umpire, be it enacted, etc.” (18 and 19 Viet., cap. 77.)
    4. The Government of the United States, by the Secretary of State, in the exercise of its j>roper executive functions, receives payment upon suoh awards and collects the claims of individual citizens of the United States against foreign governments, for the use and benefit of the individual claimants, and, as between those citizens and their Government, the moneys so collected are not “ public moneys ” and do not pass into the Treasury, and are not “ moneys of the Unit eel. States” in the ordinary or proper sense, but are received by the Secretary of State for the purpose of being paid over to the original claimants, or their legal representatives, and are so paid over to them, as a rule, without any act or intervention of Congress.
    
      (a) Such payment was made of the amount received from Great Britain under the claims convention of 1853 (supra) although that convention, lite many other claims conventions, was silent on the matter of distribution. The act of Congress to give effect to that convention simply appropriated the amount necessary to pay the awards in favor of British subjects and left the Secretary of State to distribute the amounts received from Great Britain among citizens of the United States who had obtained awards from the commission, according to the usual practice of the Government. (10 Stats., 703,704.) Since then awards against Spain and .Haiti have been collected and paid over by the Secretary of State to the individual beneficiaries, not only without any intervention pf Congress, but also without any provision for distribution in the diplomatic agreements or protocols under which the decisions of the arbitrators were rendered.
    
      (b) In a case arising under Article YII of the Jay treaty, Mr. Attorney-General Breckinridge said (1 Opin., 154):
    
      “ The government has only to see that the moneys are paid, to those in whose favor they were awarded, or to those who are legally entitled under them.”
    So Mr. Attorney-General Legare (4 Opin., 177):
    “ The government is a mere stakeholder for the use of those who are really entitled to the proceeds paid over under a treaty.”
    So Mr. Chief Justice Kent in Grade v. N. T. Ins. Go. (8 Johns. Reps., 237), cited by Mr. Justice Story, delivering the opinion of the Supreme Court of the United States in Gomegys v. Vasse-(1 Pet., 212).
    “ If France should at any future period agree to and actually make compensation for the capture and condemnation in question, the Government of the United States, to whom the compensation would in the first instance be payable, would become trustee for the party having the equitable title to the reimbursement.”
    Wharton’s Digest of International Law, Vol. II, p. 703, citing 10 Opin., 31:
    “Where, by the convention of 1853 with Great Britain {supra) it was agreed that all moneys awarded by the commissioners, on account of any claim, should be- paid- by one government to the other, it was held that the moneys found due from the foreign government to the claimants, who were citizens of the United States, were to be paid to the Secretary of State, whose duty it was to have the same paid to those entitled to receive them.”
    So Mr. Attorney-General Hoar, referring to the third article of the claims convention of September 10, 1857, with New Granada, which, as in the case at bar, provided that the sums awarded to the claimant should be paid to their government (12 Stat. L., 985):
    “Such payment to our government was, of course, intended to be in trust for parties whose claims should be rectified by the board.” (13 Opin., 19.)
    In his note of January 19,1877, to the chairman of the Committee on Foreign Affairs, explaining why legislation was necessary for “ carrying into effect the awards” under the convention of July 4,1868, with Mexico, Mr. Secretary Fish said that provision should also be made for the distribution of the money as it might be received among the “several parties entitled.” (Mis. Doc. No. 39, H. R., 44th Cong., 2d sess., p. 1.)
    
      Mr. Secretary Evarts (Mis. Doc. No. 13, H. R., 45th. Cong., 2d sess., p. 1):
    “ No doubt the prompt distribution of money awarded to our citizens and paid over to the Government of the United States for that purpose is an obligatory duty which the Government should be most anxious to discharge.”
    In 1882, during the Venezuelan controversy, the Senate Committee on Foreign Relations unanimously reported “that the Department of State has full power and authority touching the distribution of the moneys paid under the awards.” Rep. No. 311, Senate, 47th Cong., 1st sess., cited in Wharton’s Dig. Inter. Law, Vol. II, p. 551.)
    In 1885 the same committee unanimously reported a resolution (S. R. Ill) to the effect—
    “ That the distribution and payment of the principal and interest of the awards rendered by the mixed commission at Caracas in the year 1868, under the convention of April 25, 1866, properly belong to the JUxeeutive, and are hereby referred to that branch of the government.” (Rep. No. 1201, Senate, 48th Cong., 2d sess.)
    The construction given to the act of June 18,1878, by the Supreme Court in JTrelinghuysen v. The United States (110 IJ. S., 63) decided most emphatically that Congress could not take the question of the payment or retrial of such international awards out of the hands of the President without encroaching on his functions. Referring to the first section of the act, Mr. Chief Justice Waite said:
    “ At most it only provides for receiving and distributing the sums paid without a protest or reservation such as, in the opinion of the President, is entitled to further consideration. It does not undertake to set any new limits on the power of the Executive.”
    And, referring to the fifth section, the Chief Justice said:
    u From the beginning to the end it is, in form even, only a request from Congress to the Executive. * * * In our opinion, it would have been just as competent for President Hayes to institute 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.”
    The President’s authority to distribute the funds or to withhold distribution for the purpose of investigating Mexico’s charges of fraud, or entering (as he did) into negotiations with Mexico for a readjudication of two of the claims by a new commission, was not derived from Congress but was inherent in bis office under the Constitution,
    15. All the conventions to which the United States has been a party for the settlement of individual claims by mixed commissions recognize the individual claimants as the parties pecuniarily interested in the result, either by providing that a decision shall be made in writing, specifying what is to be paid on each of their several claims, as in the claims convention of 1853 with Great Britain {supra) and of July 4,18G8, with Mexico, or that a certificate of the award on each claim shall be given to the respective claimants, as in the conventions with Costa Bica, New Granada, Ecuador, Venezuela, and other countries.
    
      {a) But no matter how the rights of the individual claimants as the eventual payees are recognized, payment is made in the first instance to the Secretary of State, or other proper representative of the creditor government, for, in these international adjustments, governments deal directly with each other and not with each other’s subjects or citizens. (Supra, par. 4, and authorities cited.)
    
      (b) In this respect the Jay treaty (1794) might seem to be ah exception, for the two governments agreed that each should cause the sums awarded to the individual claimants against itself to be paid to them, but nevertheless the payments were made through their respective governments, as in the aforesaid cases, and Mr. Secretary Madison at one time pirjposed, before that treaty was finally executed, to strike a balance and make a settlement between the two governments by paying the difference. (2 State Papers, 390.) But, of course, this was for convenience in adjusting the accounts between the two governments, and not on the complainant’s theory that in and by the very act of providing a forum for the settlement of the claims of its individual citizens, the Government of the United States had appropriated those claims and made the proceeds absolutely its own.
    6. The rights of citizens of the United States to whom awards were made by the commissioners or umpire were in no way affected by the fact that Mexico reserved the amount awarded to her citizens and paid only the balance or difference to the Secretary of State.
    
      (tt) Under tbe fourth article of--tbe convention of July 4, 1868, tbe Mexican Government deducted tbe sum total of tbe awards in favor of Mexican citizens from tbe sum total of the awards in favor of United States citizens, and paid tbe difference in annual installments to tbe Government of tbe United States, but Congress restored tbe amount so retained by-Mexico to tbe Secretary of State, by section 2 of tbe act of June 18,1878, which provided that tbe sum so paid to that officer should be regarded as “part of tbe awards made under tbe said treaty.” (20 Stat. L., 144.)
    
      (b) In his note of November 6, 1877, to the chairman of tbe Committee on Foreign Affairs, Mr. Secretary Bvarts, who bad been importuned by tbe individual awardees to distribute tbe installment received without waiting for Congress to appropriate tbe amount which tbe Mexican Government bad reserved, explained tbe situation prior to tbe passage of tbe aforesaid act, as follows:
    “ I have, however, hesitated to make this distribution of tbe money on band, which would be according to tbe practice of tbe Government, because of some legislation being necessary to make good to tbe fund tbe amount with which tbe Government of tbe United States is chargeable, and because it is desirable that tbe form and manner of tbe reservation from the installment in band of tbe expenses of tbe government should now be settled.” (Mis. Doc. No. 13, H.R.,45tb Cong., 1st sess.,p.2.)
    (c) In her payment to tbe Secretary of State, Mexico reserved the amount which otherwise tbe United States would have paid directly to her in satisfaction of tbe awards in favor of her citizens, and Congress by tbe second section of tbe aforesaid act restored tbe amount to tbe Secretary of State as “part of tbe awards,” which bad been made under tbe treaty to citizens of tbe - United States. This would not have been done if, as contended by tbe complainant, tbe Government bad appropriated tbe claims or was “bolding tbe moneys received from Mexico as its own, free from all obligation to tbe citizens with respect thereto.”
    
      (d) Tbe complainant relies on a detached expression in Boyn-ton v. Blame as authority for this alleged absolute ownership of these moneys by tbe United States. But although Mr. Chief Justice Fuller said, in delivering tbe opinion of tbe court in Boyntons. Blaine, that “ tbe moneys paid in liquidation of that balance belonged to tbe United States,” be did not stop there, as tbe complainant does, but added in tbe same sentence — “to be increased by appropriation, and tbe aggregate to be distributed as might be provided.” And, of course, tbe distribution would be according to tbe awards, in order to give effect to tbe convention, as stipulated by tbe sovereign parties, unless the President, as tbe author of treaties and tbe organ of tbe United States in its intercourse with foreign governments, saw ñt to withhold payment in any particular case. (Freling. huyseny. United States, 110 U. S., 63; Boynton v. Blaine, 139 U: S., 306.)
    7. A claims commission, such as that organized under tbe convention of July 4,1868, is an international court.
    
    “ Tbe mixed commission when duly organized will constitute an international tribunal, that is to say, a court of tbe highest order known to public law, and will have complete jurisdiction of all questions of fact or of law which may come before it in virtue of tbe treaty between tbe two governments.” (Mr. Secretary Seward to Commissioner Talmage, November 15,1867, Mis. Doc. No. 30, H. JL, 45th Cong., 2d sess., Appendix, p. 6.)
    “ Tbe commission established by the Spanish treaty of 1819 (8 Stat. L., p. 252) was a special tribunal having exclusive jurisdiction of claims arising under tbe treaty, and no other court can correct its mistakes or revise its decisions.” Meade v. United States, 2 C. Cls., 224.)
    “The parties must abide by it (tbe award of tbe commission) as tbe decree of a competent tribunal of exclusive jurisdiction. (Mi\ Justice Story in Oomegys v. Vasse, IPet. 193).
    8. Arbitration is a legal means of obtaining international justice.
    Phillimore says that international rights have their appropriate remedies under tbe law of nations and “ are capable of being protected and enforced by legal means.” He speaks of war as tbe international right of action — the terrible litigation of statesj and be proceeds:
    “But as we approach these awful confines we must remember that it is tbe bounden duty of every State to exhaust every legal means of redress before it lias recourse to tbe dreadful necessity of war. These means are classified under two beads, viz:
    “1. Measures taken via amicabili.
    
    “2. Measures taken via facti, which, nevertheless, fall short of war.”
    Measures taken via amicabili are: 1, negotiation; 2, arbitration. (Ill Phill. Inter, law, 2.)
    
      Arbitration came into tbe law of nations as into tbe municipal law of European and American countries from tbe Eoman law. Tbe eigbtb section of tbe fourth book of tbe Pandects is devoted to this subject. Arbitrament and award were known to that law five centuries before Christ. We find in tbe fragments of tbe twelve tables now extant:
    “It shall be a capital crime for a judge or arbitrator to take money for passing judgment.” (Table IX, Law III, Cooper’s Justinian, p. 595.)
    It is in tbe Eoman law that the publicists have found tbe rules that are still applicable to international arbitration, and similar rules also obtain in respect of arbitration between private persons, whether at common law or under municipal statutes.
    9. Tbe award in tbe defendant’s favor is an international judgment.
    “An award is tbe determination of matters in controversy by submission to persons indifferently chosen by tbe persons contending.” “It must be final.” (1 Bac. Ab., p. 201.)
    “An award is a judgment.” (Ib., p. 212.)
    “Money retained under an award of a tribunal specially clothed with jurisdiction of tbe subject-matter, and from whose decision there is no appeal, * * * is, in legal effect, money paid under a judgment.” (1 C. Cls., 135.)
    “Every argument derived from tbe spirit of tbe statute of jeofails in favor of judgments applies with increased force in favor of awards since the judges in tbe latter case are of tbe parties’ own choosing.” (Mr. Justice Pendleton in Shermor v. Beale, 1 Wash., 14.)
    “ The award of the arbitrators lias, therefore, tbe same legal effect as tbe verdict of a jury and judgment thereon, under an issue strictly made up.” (Bigelow on Estoppel, pp. 18, 19.)
    “Tbe difference between a mediator and an arbitrator consists in this, that tbe arbitrator pronounces a real judgment, which is obligatory, and that tbe mediator can only give bis counsel and advice.” (Lawrence’s Wheaton, Int. Law, p. 133, note 51.)
    Tbe conclusiveness of tbe awards and tbe obligation to give them “full effect” — these essential elements of a judgment — are inherent in tbe very nature of arbitration. So Yattel (B. II, Cb. XVIII, sec. 329):
    “When once tbe contending parties have entered into articles of arbitration they are bound to abide by the sentence of tbe arbitrators; they have engaged to do this, and the faith of treaties should be religiously observed.”
    
      “ Tbe sentence once given is binding upon tbe parties whose own act bas created tbe jurisdiction over them.” (Phillimore Inter. Law, Yol. Ill, p. 5.)
    Authorities could be multiplied, but these ought to be sufficient to secure to tbe defendant tbe benefit of tbe admission which tbe complainant’s learned counsel made in open court, and reiterated on page 101 of bis brief, in tbe following terms:
    “If tbe award of tbe mixed commission was in any sense a judgment against Mexico in favor of La Abra Silver Mining Company I concede that Congress could not set it aside, or vacate it, or inquire into its validity.”
    10. Tbe award of an international commission can be opened and tbe original claim readjudicated only by international proceedings under a new agreement of tbe treaty-making powers.
    Among tbe rules of international arbitration “mostly derived,” be says, “from tbe civil law,” Halleck lays down the following, with á long list of authorities, including Voef s Commentaries on tbe Pandect:
    “A decision once formally delivered can not be reconsidered without a new agreement, for, when tbe opinion is delivered, tbe arbitration is fundus officio.” (Inter. Law, Ob. XII, “International Disputes,” 15. 293.)
    This rule was stated as follows by Sir Frederick Bruce, late Her Britannic Majesty’s minister at Washington, as umpire, uuder tbe convention of 1864, between tbe United States and Colombia: ' .
    “In civil courts an appeal lies to a superior tribunal; in international courts, which recognize no superior judge, fresh negotiations are opened and a fresh commission appointed, to which tbe disputed cases are referred.” (Journal of the mixed commission between tbe United States and New Granada, MSS., Dept, of State, p. 162.)
    Wharton cites Gommegys v. Vasse (1 Pet., 212), as authority for tbe following proposition:
    “Tbe decision of an international tribunal over matters as to which it is made tbe supreme arbiter is final, and is not the subject of revision except by tbe consent of tbe contesting sovereigns.” (II Dig. Inter. Law, sec. 221, p. 572.)
    On this point Wharton also cites tbe report of tbe Senate Committee on tbe Judiciary, No. 172, Forty-sixth Congress, second session, as follows: ^
    
      “The substance of this report is that the result of an arbitration authorized by an international convention should not be defeated or controlled by the separate action of one of the two governments, but that the proper remedy was in a new convention, in which provision should be made for doing justice to all claimants.” (Dig. Inter. Law, Yol. II, p. 562.)
    (a) This rule of international law was followed by the United States and Venezuela in negotiating the convention of 1885 for the readjudication of the claims that had been adjudicated at Caracas, under the convention of 1866, after many attempts had been made in Congress to refer the awards of the mixed commission to the Court of Claims or the Supreme Court of the District for revision. This rule of international law was also followed by the United States and Mexico, in the case at bar, in negotiating a new convention for a rehearing of the Weil and La Abra claims, which was submitted by the President to the Senate July 20,1882, and rejected by that branch of the treaty-making power April 21,1886.
    (&) In his report to the President (Ex. Doc. 140, 49th Cong., 1st sess.), cited by Wharton (Dig. Inter Law, Yol. II, p. 562), Mr. Secretary Bayard refers to Mexico’s part in this international proceeding for a readjudication of the defendant’s claim, as follows:
    “It seems proper here to observe that by the voluntary negotiation of this second treaty Mexico submitted the question (whether these claims should be readjudicated or not) to the treaty-making power of the United States, of which it is well known that two-thirds of the Senate was an essential part, and that the relief sought from the effects of the former treaty could only be secured by obtaining such a constitutional majority in its favor.”
    (c) It can not be said that this second treaty was rejected by the Senate because it believed that the defendant’s claim should be readjudicated or the award reviewed in a municipal court, for the Senate had ordered the indefinite postponement of a bill for that very purpose on the unanimous report of the Judiciary Committee, cited by Wharton on another point (supra) to the effect—
    “That the bill under consideration proposes to withdraw these two claims from the dominion of intern ational jurisdiction, and place them before a tribunal organized and existing solely by virtue of the laws of this country, and in this way it would seem designed to avoid the opening up of other questions of complaint that are known to exist on behalf of the citizens of the United States whose claims for various causes failed to receive favorable consideration by said commission under tlie treaty creating the commission.” (Eep. No. 712, Senate, 40th Cong., 2d sess.)
    
      (d) The Judiciary Committee also held, in the same report, that it was for the President to determine what the honor of the United States required in this matter, and that he could not delegate this duty to Congress, because—
    “This would involve an investigation by Congress of facts of an international character, which, in the opinion of the committee, properly belongs to the Executive Department, and which it was the intention of the fifth section of the act of June 18, 1878, to leave with the Department.” .
    (e) Subsequently (in March, 1882), the Senate ordered the indefinite x>ostponement of two similar bills (S. 799 and S. 893) on the unanimous report of Mr. Windom from the Committee on Foreign Eolations—
    “That, in their opinion, the Court of Claims can not be clothed with jurisdiction to modify or annul the action of the commission organized under the provisions of the act (convention) of Ax>ril 20, 1886, between the Government of the United States and Venezuela. The committee are also of the opinion that the Department of State has full power and authority touching the distribution of moneys paid in under the awards made by said commission, and they therefore recommend the indefinite postponement of said bills.” (Eep. No. 311, Senate, 47th Cong., 1st sess., cited in Wharton’s Dig. Inter. Law, Vol. II, x>. 551.)
    (/) In February, 1885, while the new convention with Mexico for a retrial of the defendant’s claim was pending in the Senate, the Committee on Foreign Eelations unanimously reported a resolution (S. B. Ill) “referring the controversy between the United States and Venezuela in respect to the awards of the mixed commission to the President,” in the following terms:
    “That the distribution and payment of the principal and interest of the awards rendered by the mixed commission at Caracas in the year 18.68, under the convention of 1866, x>rop-erly belong to the Executive, and are hereby referred to that branch of the Government.” (Eep. No. 1201, Senate, 48th Cong., 2d sess.).
    
      (g) And this was done after Congress had passed the joint resolution of March 3,1883, in which the p resident “ is requested to ojien diplomatic correspondence with the Government of the United States of Venezuela with a view to the revival of the genera] stipulations of the treaty of April 25, 1866, with said
    
      government, and tbe appointment thereunder of a new commission,” etc. (22 Stat. L., 643.)
    
      (h) Mr. Secretary Bayard in his report of May 6,1886, to the President (supra) expressed the opinion that Congress did not intend, by the act of June 18, 1878, to interfere with this international rule for reopening and reviewing an international award, and he restated the rule (the italics- being his own) as follows:
    “The act of Congress of June 18, 1878, contains a request that the President should investigate any charges of fraud presented by the Mexican Government against the claims in question, and that if he should be of the opinion that the honor of the United States, the principles of public law, or’considerations of justice and equity should require that these awards or either of them should be reopened and the cases retried, it should be lawful for him to withhold payment of said awards, or either of them, until such case or cases should be retried and decided in such manner as the government of the United States and Mexico may agree. The retrial of these cases was, therefore, to be subject to such international arrangement as might be agreed upon between the governments of the United States and Mexico.”
    It can not be said that afterwards, by advising the President that “a recommendation be made to Congress to take action to provide expressly for the reference of the claims in question to the Court of Claims, or such other court as may be deemed proper, in order that a “competent investigation of the charges of fraud may be made,” Mr. Bayard admitted, or in any way suggested that Congress could clothe this court with jurisdiction to annul, set aside, or modify the decisions of the mixed commission, for when he proposed to the defendants7 counsel to agree to such an investigation, his proposition was that it should be made by this court under the twelfth section of the Tucker Act of March 3,1887. (Ex. Doc. No. 109, Senate, 50th Cong., 1st Sess., pp. 24, 25.) But it has been decided by the Supreme Court of the United States that the Court of Claims, under the twelfth section of that act, can not render judgment. (In re Sanborn, 148 U. S., 226.)
    
      (i) The “further investigation77 which Mr. Secretary Evarts suggested in his second report to the President might be made, could not have meant a judicial determination in the case of La Abra Company’s award, for he expressed his conclusion that in respect to that award such an investigation, “ should Congress institute it,” ought to be confined to the alleged exaggeration of damages, and that its distributive share of the installments received up to that time from Mexico might properly be paid over to the Company, reserving the question as to later installments. (Ex. Doc. No. 150, Senate, 46th Cong. 2d Sess.)
    Of course, Mr. Evarts knew that the fraud for which equity will grant relief must go to the whole of a decree, under the authorities cited in the opening argument.
    
      (j) Subsequently the Judiciary Committee of the Senate expressed the opinion that Mr Evarts’s conclusions in regard to La Abra award, approved as they were by the President, andfollowedby payment to the Company, “virtually determined the question submitted to the Executive Department by said fifth section so far as that claim was involved.” (Bep. No. 712, Senate, 46th Cong., 2d sess.) This was probably one of the grounds on which the treaty for a readjudication of the claim was subsequently rejected by the Senate.
    11. The jurisdiction intended to be conferred on tire Court of Claims by the act of Congress of December 28, 1892 (27 Stat. L., 409), is strictly judicial.
    
      (а) The defendants admit that Congress, at the President’s request (at least before the rejection of the convention for a rehearing), might have authorized the Court of Claims to assist him in his investigation of Mexico’s charges of fraud in the same way substantially as the court assists Congress under the Bowman Act or the Executive Departments under the twelfth section of the Tucker Act. But the act in question (sec. 2) confers “full jurisdiction to hear and determine such suit,” which suit is described in section 1 as a suit * * * to determine whether the award made by the mixed commission in respect to the company’s claim was obtained as to the whole sum or any part thereof by fraud, effectuated by means of false swearing or other false or fraudulent practices on the part of the said company, and, in case it be so determined, then to bar and foreclose all claims in law or equity on the part of the company or its assigns, to the money, or any such part thereof, received from the Bepublic of Mexico for or on account of such award.
    (б) The defendant company may thus be divested of all its right, title, and interest in the proceeds of the award by the judgment of this court, although the company’s claim from the beginning has been of diplomatic cognizance, and the award in its favor is the result of international arbitration under a convention between two nations, and the question whether the claim should be readjudicated or not has been submitted by Mexico and the United States to the treaty-making authorities of the two governments and decided in the negative (see supra,' par. 10 (a) and (5).
    
      (o) The act also provides (sec. 3) for an appeal from any final decision in said cause to the Supreme Court of the United States. This is a conclusive test of the nature of the jurisdiction which the act intends to confer. (The Western Cherokee Indians v. The United States, 27 C. Cls., 1; Harvey v. United States, 105 U. S., 671; United States v. Old Settlers, 148 U. S., 427.)
    
      (d) The act also provides (see. 4) for the return of the money ■ by the President to Mexico in case it shall be finally adjudged that the award was obtained by fraud; and (sec. 5) for the distribution of the funds in whole or part to the company or its assigns in case the final judgment of the court shall be that the award or some severable part of it was not obtained by fraud.
    
      (e) Everything connected with the disposition of the funds in question is thus made to depend absolutely upon the final judgment that may be rendered in this suit. The whole affair is taken out of the hands of the Executive, or, as Mr. Attorney-General, giving his view of the act, says in his bill (Par. XIX, p. 21):
    “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, # * * to return the proceeds of the said award to the said Republic of Mexico.”
    Thus the questions between the United States and the defendant company, and also the questions between the United States and Mexico, growing out of the company’s claim and the award of the mixed commission under the convention of July 4,1868, are to be “determined” and “finally adjudged” by the Court of Claims, or, on appeal, by the Supreme Court of the United States. And according to the admission made in his oral argument by the learned counsel for the complainant,- and repeated in his brief (pp. 134,135), this final judgment is to be the outcome of a new trial by this court of the same issues and of the same issues only wliidh were tried and determined by the mixed commission under the treaty. Complainant’s admission on this point is as follows:
    “Defendants, through one of their counsel, Mr. Kennedy, have filed an argument of 90 pages in support of - their sixth and tenth causes of demurrer. Their sixth cause is that the allegations of the bill (including certain newly discovered proofs appended thereto as Exhibit B, and by Paragraph XVI of the bill made part thereof) relate solely to issues passed upon by the mixed commission when it examined the claims of La Abra Company. This is true, and there is no need to say anything more on that point in behalf of complainant. If this be ground for demurrer, the bill must be dismissed, and the whole purpose of the act of 1892 must fail (if the power it confers be judicial).”
   Weldon, J.,

delivered the opinion of the court:

Oh the 14th day of July, 1808, the United States entered into a convention with the Republic of Mexico for the appointment and organization of a commission to adjust and determine such claims of citizens of the United States against the Republic of Mexico, and claims of citizens of said Republic against the United States, as had been presented to the government of either party to said convention for its interposition with the other since February 2, 1848; and which might be presented to the commissioners, to be appointed under said convention, within eleven months from the day of their first meeting. By the terms of the treaty the awards of the commission, or of the umpire appointed by it, were to have the force of absolute finality and conclusiveness, and operate as a settlement of such claims. The treaty was ratified by both parties on the 1st day of February, 1869, and proclaimed by the President of the United States on the 1st day of February, 1869. (15 Stat. L., 679).

The commissioners appointed by the respective parties held their first meeting on July 31,1869, and thereafter, in pursuance of the power vested in them, appointed an umpire.

The commissioners and -umpire who finally acted upon the claim which is in controversy in this proceeding were Mr. Henry Wadsworth on behalf of the United States, Señor Don Manuel Maria de Zamacona on the part of Mexico,.and the Eight Honorable Edward Thornton, K. C. B., envoy extraordinary and minister plenipotentiary to the United States of her Majesty the Queen of Great Britain, as umpire. Mr. J. Hubley Ashton appeared as agent of the United States and Mr. Caleb Cushing as agent of Mexico. On or before the 30th of Juné, 1870, the United States, through their agent, presented to said commissioners, appointed as aforesaid, 873 claims, aggregating the sum of $470,126,613.40, and 144 claims, the amounts of which were not stated, and the Eepublic of Mexico, through its agent, presented to the commission 998 claims, aggregating the sum of $86,661,891.15. On the 19th of April, 1871, by a further convention, the time in which the commissioners were to decide claims was extended one year; and by further convention the time was extended to the commissioners and the umpire until the 20th of November 1876.

Pursuant to the power vested in said commissioner's, they made money awards to the United States (including those awarded by the decisions of umpires) in the sum of $4,125,622.20, in favor of Mexico in the sum of $150,498.41, and the difference between said amounts was paid by Mexico to the Secretary of State, in annual installments, as required by the several treaties aforesaid.

On the 17th of March, 1870, La Abra Silver Mining Company, by its attorneys, gave notice to the United States of the existence of a claim of said company against the Eepublic of Mexico for the sum of $1,930,000, for alleged damages and losses suffered by it in consequence of outrages and violence committed by the authorities of said Eepublic to and against the rights of said company in the years 1867 and 1868; the notice was, by the Secretary of State, referred to said commissioners, and the company on the 14th of June, 1870, filed with the commissioners a memorial in which it is substantially alleged that in the year 1865, under and by act of the legislature of the State of New York, the said company became a body corporate, that said company was chartered for the purchase and mining, melting, dressing and smelting, buying and selling argentiferous and other ores, minerals and metal;” that the stockholders were citizens of the State of New York, the amount of capital stock $300,000, and the existence of the company limited to fifty years; that part of its business by the terms of its charter was to be carried on outside said State, to wit, at Tayoltita, in the State of Durango and in the mineral district of San Dimas, both in the Republic of Mexico. That shortly after said incorporation the company purchased valuable mines and haciendas in the States of Durango and Sin-aloa; that said mines purchased, as aforesaid, in Durango became and were known by the name of La Abra Mines; that upon becoming the proprietors of said mines, the said company proceeded with all possible dispatch to develop and improve the same; that in thepurchaseof the mine machinery and property incident to its successful operation the company invested the sum of $303,000; and that as a result of such improvement and expenditure, it was getting out of said mine's a large amount of rich ore and were in the act of realizing a profit of ^1,000,000 per annum; but it was compelled to abandon said mines by reason of the unfriendly and illegal acts and conduct of the officials of the Republic of Mexico; that intense prejudice existed in the public mind against all Americans; that such prejudice was intensified by the belief that the United States intended to annex said States to the dominion and territory of the United States; that the agents and,servants of said company were arrested without cause; and acts of violence were committed against the property of the company which were encouraged by the authorities of Mexico; that the servants of the said company while in the performance of their duty were intimidated, killed, and driven out by the Mexican people; that the authorities made no effort to protect the property of the company, and that the purpose was to obtain possession and control of said property. It is further alleged that in consequence of such treatment the company was compelled to abandon its mine and other valuable property, which at the time of abandonment was a damage to the company of $3,000,030.

Tt is further alleged that at the time of the abandonment as aioresaid, the said company was compelled to abandon one thousand tons of ore, worth at the time the sum of $500,000, and which was wholly lost; that the profits of the company if permitted to work the mines would have been at the rate of $1,000,000 per annum; that in consideration of the premises the loss to the company is $3,000,030; that the whole amount of the claim belongs to the company; that it has not recovered any indemnity for said claim; that the claim was not presented prior to January 1,1869, to the Department of State of either G-overnment, or to the minister of the United States at Mexico.

Such proceedings in relation to said claim were had: that the same was heard by the said commissioners on the memorial and evidence aforesaid on or about the 19th day of May, 1875; that after hearing and considering said claim, said commissioners differed in opinion as to the allowance thereof, Commissioner Zamaeona delivering his opinion that said claim should be rejected altogether, on' the ground that the evidence in support thereof was insufficient, false, and in part procured by fraud, and that it was outweighed by the defensive evidence, and Commissioner Wadsworth delivering his opinion in the words and figures following, to wit:

“The company in my opinion is entitled to indemnity for the seizures of its money, supplies, mule trains, and other property by the Mexican armed forces, under command of their officers, undoubtedly for the use of such troops, and for the destruction of the mining property and interests of the company by the various Mexican authorities, civil and military.
“ The amount of money seized and taken by force, according to the proof, as I read it, was altogether $2,978. The value of the several mule trains and supplies seized and appropriated for the public use I make, say, $75,000. The property and interests destroyed in addition, by the arbitrary, lawless, and malicious acts of the authorities, amounted to a large sum, difficult to estimate, but equal in my judgment to the.total investment made by the company, less the aggregate of the money, teams, and supplies taken as above stated.
“ Upon these sums the claimant should have interest in lieu of prospective profits.
“ The profits of mining in Mexico during civil war (that is at all times nearly) and under the extraordinary circumstances surrounding claimant are more than doubtful. But I do not consider prospective profits even a part of the measure of damages in such cases. They are at best speculative, while interest is a definite and moderate allowance that may, with great propriety, take their place.
“ It is, however, idle for me to go into this important case with any particularity, since it must go to the umpire to be disposed of by him according to his views alone.”

And thereupon said claim was referred to Sir Edward Thornton, umpire, for his decision upon the points of disagreement between said commissioners.

Thereafter, on the 37th day of December, 1875, he decided that the said Bepublic of Mexico should pay, on account of said claim, the sum of $358,791.06, for the expenditures of said' defendant La Abra Silver Mining Company, with interest on said sum, and the further sum of $100,000 for the value of the unreduced ores alleged to have been extracted from said mines and abandoned by said defendant company, with interest on said last-named sum, and delivered his opinion in the words and figures following, to wit:'

“La Abba Miking- Company v. Mexico, No. 489. “AWARD 03? THE UMPIRE.
“With reference to the case of ‘La Abra Silver Mining-Company v. Mexico,’ No. 489, the umpire is fully satisfied and can not doubt that the company is entitled to be considered a corporation, or company of citizens of the United States, in accordance with the terms of the convention of July 4, 1868, .having been duly chartered in conformity with the lairs of the State of New York.
“ He is also of opinion that the enterprise upon which the claimants entered, of purchasing, denouncing, and working certain mines in the State of Durango, in Mexico, was a serious and honest business transaction on their part, and that there was nothing rash, deceitful, or fraudulent in it, but that it was engaged in with the sole intention of carrying out legitimate mining operations.
“ There is no doubt that the Mexican Government was very desirous of attracting foreigners to the Bepublic, and of indu-cin g them to bring their capital into it and raising up industrial establishments of all kinds. With this view it issued proclamations encouraging the immigration of foreigners, and promising them certain advantages and full protection. It can not be denied that the claimants were justified in placing confidence in these promises. They complain, however, that the local authorities of the district in which their mines and works connected with them were situated did not fulfill the engagements entered into by their Government, but, on the contrary, behaved toward them in an unfriendly and hostile manner. The ground of their claim is that these hostilities were carried to such an extent that they were finally compelled to abandon their mines and works and to leave the Bepublic.
“The evidence on the part of the claimants is, in the umpire’s opinion, of great weight; the witnesses are, for tbe most part, highly respectable and men of intelligence, and their testimony-bears the impress of truth. Notwithstanding what is stated to tbe contrary by the witnesses produced by the defense, the umpire is constrained to believe that the local authorities at Tayoltita and San Dimas, far from affording to the claimants that protection and assistance which had been promised them by the Mexican Government, and to which they were entitled by treaty, not only showed themselves a spirit of bitter hostility to the company, but encouraged their countrymen who were employed by the claimants in similar behavior, and even frightened them into refusing to work for their American employers. The conduct of these authorities was such, and the incessant annoyance of and interference with the claimants was so vexatious and unjustifiable, that the umpire is not surprised that they considered it useless to attempt to carry on their operations, and that for this reason, as well as from the well-grounded fear that their lives were in danger,.they resolved to abandon the enterprise. These facts are not, in the umpire’s opinion, at all refuted or even weakened by the evidence submitted by the defense; on the contrary, he believes that the local authorities were determined to drive the claimants out of the country.
“ It appears that the superintendent of the mines took such steps as he could to obtain protection from these authorities, and, finding his efforts in vain, he appealed, through a lawyer of high character, to the highest authorities in the State, who declined to interfere in the matter. To suppose tha,t, when so determined a spirit of hostility on the part of the local authorities (one of whom was the jefe politico, who wielded great power) and so much indifference by the State government were displayed toward the claimants, it would have been of any avail to appeal to the courts of justice would be puerile. In short, the umpire does not see what else, in presence of such opposition to their efforts, the claimants could do but abandon the enterprise.
The umpire is of opinion that the Mexican Government, which, with a spirit of liberality which does it honor, encouraged all foreigners to bring their capital into the country, is bound to compensate the claimants for the losses which they suffered through the misconduct of the local authorities. What the amount of this compensation should be it is very difficult to decide. The umpire is of opinion that the claimants should be reimbursed the amount of their expenditures . and also the value of the ores extracted which they were forced to abandon, with interest upon both these sums. He can not consent to make any award on account of prospective gains, nor on account of the so-called value of the mines. Mining is proverbially the most uncertain of undertakings;, mines of the very best reputation and character suddenly come to an end either from the exhaustion of the veins or from flooding or from some of the innumerable difficulties which cross the miner’s path. A certain interest upon the money invested is a much surer compensation than prospective gains$ the latter are, in fact, the interest upon the sums invested. They may be greater or less or none at all, and there may be even great losses of capital. To award both interest and prospective gains would be to award the same thing twice over. The so-called value of the mines must depend upon the prospective gains. It may be great, small, or nothing, and may be but a mere snare to lead one on to utter ruin. It is, in the opinion •of the umpire, equally inadmissible that the Mexican Government can be,called upon to pay a value, the amount of which, even approximately, it is impossible to decide. A moderate interest on the amount invested in the business and upon the amount of the ores reduced and of those extracted and deposited at the reduction works is a further compensation which, in the opinion of the umpire, that Government ought to pay.
“The evidence of George O. Collins, with regard to the amount invested, is clear and straightforward. He states it to be—
From subscriptions and sales of stock..$235,000.00
Lent and advanced. 64,291.06
Due for rent, expenses, salaries, law expenses. 42,500.00
341,791.06
“Any so-called ‘forced loans’ and contributions must have been paid out of this amount. To charge them, therefore, separately is to make the same charge twice over. The umpire takes occasion,, however, here to observe that a forced contribution exacted upon a train of goods, the property of the company, in transit from a seaport or elsewhere to the mines, is not in the nature of a forced loan. The fatter should be recovered by the proper authorities, at the headquarters of the company, and should be in the same proportion as that imposed upon all the inhabitants of the country. The former is an arbitrary exaction which is frequently much more prejudicial than the actual money loss, on account of the detention and abstraction of goods without which the mining operations can notproceed. To the above-mentioned amountof $341,791.06 should be added $17,000, which is shown to have been the amount derived from reduced ores.
“ The umpire is satisfied, from the respectable evidence produced, that a large quantity of valuable ore had been extracted from the mines and deposited at the company’s mill, and that it was there when the superintendent was compelled, by the conduct of .the local authorities, to abandon the mines and cease working them. But the umpire is of opinion that there
is not sufficient proof, nor indeed sucb proof as might liave been produced, that the number of tons stated by the various witnesses were actually at the mill, or at the mines, at the time of the abandonment. In so well regulated a business as the umpire believes that it really was, he can not doubt that books would have been kept in which the daily extraction of ores would have been regularly noted down, and that periodical reports would have been made to the company at New York. Neither books nor reports have been produced, nor has any reason been given for their nonproduction. The idea formed, even by persons intelligent in the matter, of the quantity of a mass of ore must necessarily be vague and uncertain, and that of its average value still more so. Still, the umpire is strongly of opinion that claimants are entitled to an award upon this portion of the claim...
“ He will put it at $100,000. It is possible that it is much less than the real value of the ores, but in the absence of sufficient documentary proof, and considering the fact that the expenses of reduction are great and sometimes even much greater than is anticipated, he does not think that he would be justified in making a higher award. Neither should interest be allowed on this amount so soon as on the others, for the reduction of the ores would have taken time — say a year. It is not shown that the company had received any dividends before the period of the forced abandonment of the mines, about March 20,1868. Neither ought interest to be awarded before that date.
“The umpire therefore awards that there be paid by the Mexican Government, on account of the above-mentioned claim, the sum of three hundred and fifty-eight thousand seven hundred and ninety-one Mexican gold dollars and six cents ($358,791.06), with an annual interest of 6 per cent from March 20,1868, to the date of tbe final award; and further, the sum of one hundred thousand Mexican gold dollars ($100,000), with the same interest from March 20,1869, to the said date of the final award.
“Bdw. Thornton.
“Washington, December 27,1875.”

Thereafter, on the 29th day of January, 1876, and the 19th day of September, 1876, Mr. Avila, agent for the Republic of Mexico, filed with the umpire a motion for a rehearing of the claim, on the grounds set forth in the opinion of Mr. Zama-cona, commissioner, as aforesaid, and on the further ground that the allowance of $100,000 with interest on the value of unreduced ores was invalid, because no allowance for the ores had been made by Mr. Wadsworth, commissioner, and the question of such allowance had not been referred to the umpire. But the umpire, ou the 20th day of October, 1876, denied the motion for rehearing, and on the 20th day of November, 1876, the functions of the umpire terminated, as provided by the convention of April 29,1876, aforesaid. By a decision of the umpire, dated July 31, 1876, that date was fixed as the date to which interest on all claims was to be computed, therefore the award on the claim of the said defendant company, including interest, amounted to $683,041.32.

In the year 1877 the authorities of the Bepublic of Mexico were advised, as it is alleged, that certain testimony offered on the part of said company was false, and procured by use of money in the subornation of witnesses; and in said year were further informed, that since the proceeding before the commissioners, important and material testimony had been discovered, which, if presented to the commissioners and umpire, would have changed the result of the examination of said claim. On the 18th Jane, 1878, Congress passed an act, chapter 262 (20 Stat. L., 144), directing the distribution of the fund paid by Mexico under the decree and judgment of tiie commission; but authorized the President to investigate any charges of fraud presented by the Mexican Government with respect to the claim of said mining company; and if in the opinion of the President “ the honor of the United' States, the principles of public law, or considerations of justice and equity, required that the award in the case of the said mining company should be opened and the case retried, it should be lawful to withhold payment of the award to said company, until such case should be retried, and decided in such manner as the governments of the United States and Mexico might agree, or Congress should otherwise direct.”

On the 8th day of August, 1879, in pursuance of the provisions of said act, the Secretary of State of the United States, in a report to the President, stated that the evidence presented by the Bepublic of Mexico in said claim brought in grave doubt the sincerity of the evidence as to the measure of damages, and that the honor of the United States required a further investigation of the claim.

The Secretary further said:

“Third. The executive government is not furnished with the means of instituting and pursuing methods of investigation which can coerce the production of evidence or compel tbe examination of parties and witnesses. Tbe authority for such an investigation must proceed from Congress. I would advise, therefore, that the proofs and conclusions you shall come to thereon, if adverse to the immediate payment on these awards of the installments received fr'om Mexico, be laid before Congress for the exercise of their plenary authority in tbe matter.
u Fourth. It may be that, as the main imputation in the case of the La Abra Silver Mining Company is of fraudulent exaggeration of the claim in its measure of damages, it may consist with a proper reservation of further investigation in this case to make the distribution of the installments in hand.
“I have this subordinate consideration still under examination, and, should you entertain this distinction, will submit my further conclusions on this point.”'

Said opinion was approved and adopted by the President,' and thereafter, on the 3d day of September, 1879, the Secretary further reported to the President:

“The parties interested in the case of the La Abra Mining Company having desired from you a further consideration of the,point reserved in my former statement to you of my views in that case, and the matter having been referred to me to that end, I respectfully submit my conclusion on that point.
“1. Upon a renewed examination of the matter as laid before me by the Mexican Coyernment, I am confirmed in the opinion that the proper limits of the further consideration which the honor of the Government should prompt it to give to this award should confine the investigation to the question of a fraudulent exaggeration of the claim by the parties before the commission to which, under the provision of the convention, it was presented by this Government.
“2. Upon a careful estimate as to any prpbable or just reduction of the claim from further investigation, should Congress institute it, and under a sense of thé obligation of the executive government to avoid any present deprivation of right, which does not seem necessary to ultimate results, I am of opinion that its distributive share of the installments thus far received from Mexico may properly be paid to the claimant, reserving the question as to later installments.
“ If this conclusion should receive your approval, the payment can be made upon the verification at the Department of State of the rightful parties to receive it.”

In pursuance of the recommendation of the Secretary, there has been paid to the said mining company from time to .time, until the amount received by the United States has been diminished to the sum of $403,030.08, which now remains in the possession of the Government.

Because of tbe alleged fraud against tbe justice and fairness of tbe award, an attempt was made to submit tbe question to a new convention; but tbe effort failed in consequence of tbe rejection of tbe treaty by tbe Senate of tbe United States. Tbe matter being unadjusted, and tbe money still remaining in tbe possession of tbe United States in December, 1892, there was passed and approved an act, as follows:

“An act to amend and enlarge tbe act approved June eighteenth, eighteen hundred and seventy-eight, entitled ‘An act to provide for the distribution of tbe awards made under tbe convention between tbe United States of America and tbe Bepublic of Mexico, concluded on tbe fourth day of July, eighteen hundred and sixty-eight.’
“ Whereas tbe Secretary of State, after investigating the charge of fraud presented by tbe Mexican Government as to tbe case of La Abra Silver Mining Company, has heretofore reported that tbe ‘honor of tbe United States requires’ that said case ‘ should be further investigated by the United States, to ascertain whether this Government has been made tbe means of enforcing upon a friendly power claims of our citizens based upon or exaggerated by fraud,’ but that ‘the executive government is not furnished with means of instituting and pursuing methods of investigation which can coerce the production of evidence or compel the examination of parties and wi; nesses,’ and that ‘ the authority for such an investigation must proceed from Congress;’ and
“Whereas the President of the United States has transmitted to Congress the recommendation of the Secretary of State that said case ‘be referred to the Court of Claims, or such other court as may be deemed proper, in order that the charge of fraud made in relation to said claim may be fully investigated: ’ Therefore,
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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 can not 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 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 fii\al 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 and 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, or its legal representatives, attorneys, or assigns; and in case it shall be finally adjudged in said cause either in the Court of Claims or in the Supreme Court of thp 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 ther'eto.
u Approved, December 28, 1892.”

In pursuance of the provisions and powers of said act, the Attorney-General, on the 30th of March, A. D. 1893, in behalf of the United States, filed a bill of complaint,' in which it is substantially alleged, inter alia, that the said comqiany was not compelled by threats or acts of the Mexican officials or people to abandon its mines, as stated in the memorial of the company, as hereinbefore alleged ; but that said claim was a sheer fabrication, and that every substantial allegation in said memorial contained is false; that the material testimony on which the award was made is and was false; and that tlie whole of said award was obtained by fraud, effectuated by means of false swearing, subornation of witnesses, and other false and fraudulent practices. It is further alleged, that in the1 year 1877 the Government of Mexico first learned of the existence of a press-copy book, containing letters and reports of the various superintendents of said company, and letters from the treasurer of said company, showing that the company was in possession of its mine until August, 1868, and that at said time the said mines were abandoned because of a lack of means on the part of the company, and because the working of the same was unprofitable; that the said company did not quit and abandon said mines because of the illegal act of the officers of Mexico; nor because of the illegal interference of the people of said Government.

It is alleged that the United States has obtained from the Republic of Mexico the said press-copy book, affidavits, letters, and documents, and files the same as Exhibit B to said bill. In further extension of the general allegations of the bill the complainant specifically charges as follows:

“ And your orator says that * * * Julius A. de Lagnel can and will, under oath, testify to the genuineness of the said press-copy book and of the letters of the said D. J. Garth,
and to other important and material facts respecting the claim of said defendant La Abra Silver Mining Company; and that William F. Tuttle can and will testify to the genuineness of the said letters of the said Charles II. Exall; and that Charles B. Dahlgren, J. F. Gamboa, and J. M. Loaiza can and will testify that the affidavits purporting to have been made by them in support of said claim were false and were obtained by fraudulent practices; and that Frederick Sundell, A. B. Elder, llamón Hermosillo, Eugenio Somero, and Francisco Torres can and will testify that the material allegations of the,said memorial and the material testimony submitted, by said defendant company in support of said claim are false. And your orator says that the said documentary evidence and the said witnesses will enable your orator conclusively to show the facts in the fifteenth paragraph of this bill alleged, and also the following which your orator says are the facts, to wit:
“ That there was no hostility toward said defendant La Abra Silver Mining Company .on the part of Mexican officials or people, but that, on the contrary, their relations to its officers were friendly. That ‘prorogas,’ or extensions of title, were frequently granted to said company, and that said company received from officers of the Republican army special military protection for its property and for the mule trains belonging to contractors with said company during the war between the Republican Government of Mexico and the Imperialists. * * *
“That the superintendent was not imprisoned, but only told to consider himself in arrest (at his own hacienda) for alleged contemptuous treatment of a judge, and that he straightway complained to the prefect, after which no further restraint was imposed upon him. That no redress was denied the officers of the company, and no wrongs were inflicted upon them. That the officers of the company paraded their rights as American citizens, and Superintendent Bartholow proposed, if certain taxes were imposed upon him, to hoist the American flag, and to have them taken from under it by the military, the result of which threat was, as he explained it to Treasurer Garth in his letter of April 10,1866, that instead of paying three or four thousand dollars he only paid thirty. That when Garth instructed Superintendent Exall, in his letter of July 10, 1867, to be firm in maintaining his rights as an American citizen in any difficulties with the authorities, the latter replied, on the 6th day of October, 1867: ‘There is no difficulties about authorities, boundaries, or anything else concerning the mines and hacienda provided there is money on hand, and money must be sent.’
“That as early as May, 1867, the said Garth, treasurer of said company, advised Superintendent Exall, at the mines, that no more money could be sent him by said company; that a draft on said company for $5,000, drawn by Superintendent De Lagnel through the Bank of California, had been protested, and that the said Exall must pay all expenses from the proceeds of the mines. And in July, 1867, the said Garth wrote the said Exall, £if it costs more than it coinés to, the sooner we find it out the better, and the sooner we stop the better for all parties concerned.’
“ That the ores extracted from the said mines were worthless, the only reduction made being of 90 tons in August, 1867, and yielding less than $6 per ton, which was not enough to pay the cost of mining, and the rest being so poor that, according to Exall’s report of October 6, 1867, it would not ‘pay to thow it in the river.’ That for this reason, if for no other, they were not carried off by Mexicans, and are still at the mines. * * *”
“That the said Granger remained in charge of the said mines and property until after August 12,1868, on which date he advised the Mexican collector of taxes that there were neither money nor effects to pay taxes on said mines, but that the superintendent would return in November, 1868, when the same would be paid.
“That the said Exall and the president of the said defendant company, George C. Collins, and the first superintendent of the said defendant company, Thomas J.Bartholow, grossly and fraudulently misstated and exaggerated, in their affidavits made in support of said claim, the amount of money expended by said defendant company in the purchase and operation of its mines and property, and that said defendant company expended in such purchase and operation much less than $200,000.
“That instead of paying gold for twenty-two twenty-fourths of La Abra mine, as was sworn by the said Bartholow, the said defendant company paid for such interest in La Abra mine in stock of the said defendant company, and that the remaining two twenty-fourths interest in said La Abra mine belonged to a. person who, although a claimant against Mexico before said commission, brought no claim on account of his said interest in said La Abra mine.
“ That instead of purchasing 550 feet in said Nuestra Señora de Guadalupe mine, as sworn by the said Collins, the said defendant company purchased 550 shares of the stoek of the Nuestra Señora de Guadalupe Mining Company, which company owned said last-named mine and made claim against Mexico before said commission, alleging that it had been forcibly compelled to abandon its Nuestra Señora de Guadalupe mine, which said claim was dismissed by said commission, wherefore said defendant company, even if it had been entitled to recover on any portion of its said claim against Mexico, was not entitled to recover for its investment in the stock of said Nuestra Señora de Guadalupe Mining Company.
“ That the investment of said company derived from reduction of its ores was only $420.09, instead of $17,000, as sworn by tbe said Exall and allowed by said umpire in Ms said award.
“That instead of tbe unreduced ores extracted by said defendant company and abandoned at its said mines being worth $100,000, as estimated by tbe said umpire, from conflicting statements of witnesses for said defendant company and allowed by tbe said umpire in bis said award, said ores were absolutely worthless and would not pay tbe cost of reduction.
“That tbe affidavits of said J. F. Gamboa and said J. M. Loaiza so as aforesaid made in tbe month of May, 1870, and submitted to said commission by said defendant company were false and were procured by bribery and other unlawful means by tbe agent of said defendant company. And that tbe affidavit of tbe said Charles B. Dahlgren, as tbe same was submitted to said commission by said defendant company, was false and was not made by the said Dahlgren.
“Your orator further shows that by reason of tbe premises a. controversy has arisen between your orator and tbe defendants hereinbefore named, tbe said defendants claiming that it is tbe duty of your orator to pay over to them tbe sums by them, the said defendants, claimed respectively from tbe proceeds .of said award now in tbe possession of your orator, and your orator claiming that it is tbe right and duty of your orator to have tbe 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 tbe part of tbe said defendant La Abra Silver Mining Company or its agents, attorneys, or assigns, to return tbe proceeds of said award to tbe said Republic of Mexico; that the said defendants have made persistent demands upon tbe Department of State and upon tbe Congress of your orator for tbe payment to them of said moneys, and that some of tbe defendants have brought suits in tbe courts of your orator to compel such payment, and that, unless restrained by tbe judgment and decree of this honorable court, the said defendants will continue to harass and annoy your orator with such demands and suits.
“ To tbe end, therefore, that tbe said defendants may, if they can, show why your orator should not have tbe relief hereby prayed, and that they and each of them, on oath, may full, true, direct, and perfect answer make to tbe matters and things aforesaid, and that as fully as if the same were here again repeated and they thereunto severally interrogated paragraph by paragraph.
“And that the said defendants and each and every of them may be compelled to disclose as aforesaid.
“And that the said defendants and each and every of them
may, by the decree of tbis honorable court, be forever restrained and enjoined from setting np 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 tliis honorable court, be declared to have been wholly obtained by means of false swearing a,nd other false and fraudulent practices on the part of said defendant company, its agents, attorneys, and assigns.”-

To the bill the defendants ñle a demurrer; but “not confessing all or any of the matters and things in the complainant’s bill of complaint alleged.” In connection with that reservation as to the truth of the allegations of the bill, the defendants say for cause of demurrer in Substance, that by the Constitution the subject-matter of the complainant’s suit is not within the jurisdiction of this court or of any court of the United States, but is within exclusive control of the Executive Department; that the question whether the award was obtained in whole or in part by fraud, and the question whether the whole or any part of the money should be returned by the President to Mexico, are not competent, fit, or proper, to be considered and determined by this court, or by any municipal court, but that the said questions are diplomatic or political,' and Congress has no -power to authorize a court to consider said questions as against the powers and discretions appertaining to the Executive Department of the Government of the United States; that the United States have no such interest in the matters alleged in the bill as will enable them to maintain this suit or entitle them to the relief; that the Government of Mexico is the party interested in this suit, and at all times since the discovery of the alleged frauds and injuries set forth in the said bill of complaint, the said Government of Mexico has had a remedy by suit against the alleged wrongdoers in the courts of the United States for the annulment of the said award, that by failing to prosecute such suit the Government of Mexico lias been guilty of laches, and has forfeited all rights to relief in equity, and that, therefore, the United States is not entitled to demand sucb relief for the benefit or in the interest of Mexico in tliis suit.

It is further averred that the mixed commission -which met under the treaty of July 4, 1808, is recognized by the law of nations and by the Constitution and laws, of the United States as a court of exclusive and final jurisdiction, and that an award of such a commission is recognized by the law of nations and by the Constitution and laws of the United States as a judgment of a court belonging to the judicial system of the Government of the United States, and can not be set aside by a municipal court of the United States; that Congress can not grant a new trial in respect of matters determined by arbitration under such a treaty. Such an award can, on the part' of the United States, be reopened only by action of the treaty-making power of the Government, and that the question presented by the complainant’s bill is res judicata; that it appears on the face of the bill that the question is the same question that was tried by the commissioners under the treaty of July 4, 1808; such fraud and fraudulent practices having been charged by the Mexican agent and commissioner at the trial is res judicata, and can not be reexamined and redetermined by this honorable court.

It is also alleged the act of Congress under which this suit is prosecuted is unconstitutional on the further grounds that it assumes and undertakes to direct, control, and bind the •courts in adjudicating the question submitted for the finál adjudication of the courts named in the act; to receive evidence and apply legal principles to the said adjudication which are erroneous and wholly inadmissible according to law as administered in the courts of the United States in like cases; and such act undertakes to prescribe to the courts what weight and effect they shall give to the evidence, and how the courts shall reach the conclusion that said award was obtained in whole or part through fraud; that inasmuch and because the questions presented by the complainant’s bill are of apolitical and diplomatic nature, and not justiciable, or fit and proper to be considered and finally determined by a municipal court, Congress can not impose upon this honorable court, or upon the Supreme Court of the United States, or upon the judges thereof, the trial and determination of such questions.

Said act of Congress is void on the farther ground that it was never approved by the President of the United States as required- by law, the only alleged approval which it ever received being'on the 28th of December, A. D. 1892, when Congress was not in session, both Houses of Congress having-adjourned on the 22d of December, A/D. 1892, to the 4th of January, A. D. 1893; that the complainant’s bill of complaint does not set forth fapts sufficient to constitute a cause of action or to warrant this honorable court in granting' any relief in the premises.

Wherefore, these defendants do demur thereto, and humbly pray the judgment of this honorable court.

The bill of complainant is very peculiar in form, and presents the anomaly of a pleading embracing by direct allegation (and by exhibits u which are made part of the bill” and asked to be considered as being directly averred) more than three hundred pages of closely printed matter. The demurrer, except for the purpose of demurrer, expressly reserves any admission of the truth of the allegations of the bill. But treating the bill as sufficiently definite and appropriate to accomplish the purpose of the statute conferring upon the court jurisdiction, and regarding the demurrer as sufficient to present the questions of law indicated by the demurrer, we proceed to consider the case upon the issues presented by the record.

This is one of the most extraordinary cases that has come within the jurisdiction of this court, either from the general law or by special act of Congress. In form, it is a suit between the United States and the Mining Company, and such persons as may have acquired an interest by assignment from the company. The United States have no pecuniary interest in the result of the proceeding, but, as a sovereign, are interested in preserving the rights of its citizens as they may be affected by the acts of a foreign government; and in the honor of the Government in not enforcing the payment of an unjust claim against one of the great family of nations. Aside from the question of national duty upon the part of the Government of the United States, the real parties in interest are the Republic of Mexico, La Abra Mining Company, and such citizens of the United States as have a pecuniary interest, by assignment, in the enforcement of the award against the Government of Mexico.

From the time the Government of the United States became aware of the fact that Mexico disputed the justice of the claim (after the award of tlm umpire), it has been most solicitous to deal justly between the parties, and has withheld from payment to the company a sum sufficient to indemnify Mexico against any fraud which may have been committed beyond what was thought to be the substantial bounds of the loss of the company, as it may have existed in fact. The Mexican Government has sought, by an application to the United States for a new convention and treaty, to retry the cause, in the hope that it might by the introduction of new evidence, before another commission, lessen, if not entirely reverse, the judgment or award in favor of the company; but that application was unsuccessful, the Senate of the United States not concurring in the policy of again submitting the question to a new arbitration. The subject-matter of this controversy had been considered in all the branches of the United States Government, the legislative, executive, and judiciary, before it reached this jurisdiction by the terms of the act of December 28,1892; and many conflicting theories and opinions have been held and promulgated, both in relation to the justice of the claim and the power and duty of the United States to deal with the funds still held as a residue of the award. It has a history written in the proceedings of Congress, decisions of the highest court of the land, and in the action of the executive branch of the Government as it has been advised by the opinions and reports of able Secretaries of State.

The bill, in substance, is an allegation that the award is the result of fraud on the part of the company; and that, upon a retrial, the fraud will be shown. To the relief sought because of such alleged fraud, the defendants interpose, through the medium of the demurrer, many objections which will now be considered as they appear upon the face of the record.

Preliminary to the consideration of the question of jurisdiction, which is the first point raised by the demurrer, it may not be amiss to consider the delicate and responsible ground upon which we tread in the discussion and determination of that question. Underlying this controversy is a convention, a treaty, made between two independent and sovereign nations, in settlement of claims and contentions which, without such convention, could have been settled only by an appeal to arms, and the consequent infliction on both parties of the terrible consequence of war. Against the protestation of the party entitled to the residue of the award, the question of its fairness and integrity is collaterally submitted to this court, and we are called upon, in effect, to pass judgment upon the binding force of the finding and award of a mixed commission sitting to decide upon international claims between independent and coordinate nations.

Arbitration as to international controversies is among tbe achievements of modern civilization, and is tlie result of that progress which regards the normal condition of nations in their relations to each other as a state of amity and friendship, instead of enmity, hatred, or ili will. The law of nations, under which it is practicable to settle disputes without the eonilict of war, is a result of that growth which nations have made from the barbarism of the past to the enlightenment of the present.

“The principle of the settlement of international difference by arbitral commissions is of such deep and wide-reaching interest to civilization, and the value of such arbitration depends so essentially upon the certainty and finality of its decision, that no government should lightly weaken its influence or diminish its consideration by making its action the subject of renewed discussion.” (Attorney-G-eneral Evarts’s opinion.)

Aside from the general law applicable to the decision and judgment of the arbitrators, in being obligatory upon the parties submitting the question to arbitration, it is expressly provided in the treaty, “The President of the United States of America and the President of the Mexican Eepublic hereby solemnly and sincerely engage to consider the decision of the commissioners conjointly, or of the umpire, as the case may be, as absolutely final and conclusive upon each claim decided upon by them, or him, respectively, and to give full effect to such decisions without objection, evasion, or delay whatsoever.” It is a general and fundamental principle of the law that the award of an arbitration whether sitting between individuals or nations, in the absence of fraud or mistake, is binding upon the parties to such arbitration. The obligatory efficacy of its judgment is implied in the very existence and purpose of its creation and being. It is organized and commissioned to settle disputes by the ascertainment and recognition of the rights and duties of the respective disputants; and to accomplish that purpose it must have impressed upon its findings the quality of finality. But like all general rules it is subject to qualifications and exceptions, and within those exceptions and qualifications the finality of a judgment may be questioned.

Upon the part of the complainants we are told that the position of the defense as exemplified in the demurrer, and elaborated in the argument of counsel, calls upon the court to delare unconstitutional an act which passed the branches of Congress almost unanimously, received the sanction of the President, and which, from its declared purpose, subserves a great public interest in relieving the executive branch of the Government in the discharge of a very important duty toward the Bepublic of Mexico, and the disposition of a trust, recognized by the act of 1892, in a citizen of the United States. Upon the part of the defendants we are told that in the exercise of an assumed judicial power we are encroaching on the domain of the political and international function of the Government; that we threaten to disturb and destroy an award most solemnly made by a mixed commission in the discharge of the highest functions and prerogatives of international law; that the exercise of judicial power through the medium of domestic courts upon the part of one of the parties encroaches upon the integrity of such commission, in violation of international law, as recognized and adopted by this country in the Constitution of the United States. It will be seen by the statement of the issues how important and delicate is the judicial trust which we assume and discharge. The importance of preserving the fundamental law in the legislation of Congress, and the preservation of political power and inter, national questions from the consideration of the judiciary, can not be overestimated.

The consideration of the question of jurisdiction as raised by the demurrer and argument of counsel for the respondents involves the constitutionality of the act under which the bill was filed, and by virtue of which this court has proceeded thus far in the case. It being the expressed purpose of the act to confer jurisdiction on the court, if no jurisdiction is conferred it is because Congress exceeded its constitutional power in the passage of the act of December 28, 1892. The law provides a very complete, plain, and ample jurisdiction, to deal with the subject-matter of the controversy, in the broadest scope and exercise of judicial authority. The first and second gr'ounds of demurrer, substantially stated, are, that this court, nor any other court, has jurisdiction of the subject-matter of the complaint, and that it is within the exclusive control of the executive department of the Government; that the questions presented for the decision of the court are not justiciable questions, but diplomatic in their nature, which Congress has no power to authorize the Court of Claims or the Supreme Court of the United States to finally adjudicate. If the doctrine stated by these objections be correct in principle, it follows as a logical necessity that the act of December 28,1892, is unconstitutional, and this court is without lawful authority to go beyond the decision of the question of jurisdiction.

The court in this connection is not unmindful of the sacredness of international arbitration, and the binding force of its judgments upon the parties to its records; but do the proceedings contemplated by the statute of 1892 lessen the force and respect due the awards and judgments of a mixed commission sitting in the settlement of an international claim ? Mexico has performed and discharged every duty it was bound to perform in relation to the award made by the tribunal. It has paid the last installment, and the money is now in the possession of the United States. It paid the money in the discharge of the debt created by the judgment of the arbitration. It is conceded in the demurrer that it is within the right of the United States to agree to a new convention, with power to retrythewhole case upon any and all grounds of dispute; but that the award can not be attacked, collaterally or directly, by a less power than the one from which it emanated. The complainant, upon the other hand, says the law, bill, and decree, if in pursuance to the prayer, do not attack the integrity of the award, and that the award, as such, is above and beyond their powers and purposes; that the award as a matter of law is unaffected by the proceedings authorized by the act of our jurisdiction.

The United States Government is the moving party in questioning the justice of the award, by the passage of the act of 1892, and in the prosecution of the cause against the company in pursuance to the powers of that act. It is the party in whose favor the award was made who attempts to inquire, in the form of this proceeding, as to whether the award in good conscience ought to jirevail to its full consummation. Can it be said, where one of the powers to an arbitration questions an award in its favor, that it is doing violence to that sanctity and sacredness which, from the policy of international law, surrounds the findings of an international tribunal? Nations and states are the only parties to an international tribunal, and so long as they keep faith with each other, in abiding by the judgments and decrees of the common tribunal, the great purpose of compromise and settlement, by diplomacy, and not war, is accomplished. If the United States have become suspicions of the fairness of what they recovered from Mexico, there should be some way in which they can satisfy themselves on that point; and if it can be accomplished by a new convention, can not the same end be reached in some other mode? If Mexico had failed and refused to comply with the decree of the tribunal in the payment of the money, and was seeking some forum, against the protestation of the United States, to attack and nullify the award, it would be open to the objection of disregarding its duty as one of the contracting parties, and by those acts would not only violate an express provision of the treaty, but would be disregarding that higher law which, in the policy of modern civilization, protects as sacred the results of international commissions. If the rights of the person for whose property or grievance the. award was obtained can in the exercise of a discretion upon the part of the sovereign be subjected to a new inquiry through the medium of a new commission, can not the sovereign adopt some other mode of inquiry, if it desires to be more fully satisfied? Will the fact that the United States have sought to inquire through the instrumentality of a judicial investigation as to their duty in relation to the proceeds of the award impair the international force and dignity due the result and labors of the commission which sat under the provisions of the treaty of 1868? It seems to us that the passage of the act of 1892, and the proceedings under it, are not liable to that objection.

The constitutionality of the law and the consequent legality of the proceedings under it are to be determined, in a great measure, by considering and deciding the duty of the Government in relation to the right of the company in and to the claim which it alleged against the Republic of Mexico, and the relation of the company to the proceeds of the award received by the United States by the .judgment of the commission. It is sought to be maintained by complainant that originally the Government was possessed of all the property in the money obtained from Mexico, that it received and held it as a sovereign, unaffected by any trust of property in behalf of the defendants, that as sovereign it has a perfect and legal right to deal with it as such sovereign, irrespective of any claim of tbe defendants, “that tbe specific money whose disposition is directed by the act of Congress of December 28, 1892, to be determined by this suit, were moneys of the United States and were not, before the passage of that act, subject to any right, legal, equitable, or moral, of defendants thereto.” As counter to this proposition, the defendants seek to maintain that the Government relations to this^award is that of trustee, and that the defendants are beneficiaries, or cestui que ■trusts, and that upon the recovery of a gross sum upon the part of the United States, including the claim of the company, a right became inherent in the company, amounting to property, and that such property is not subject to the judicial jurisdiction provided by the terms of the statute. Upon this branch of the controversy both parties cite the two cases which have been in the Supreme Court of the United States, having as the subject-matter of dispute the alleged right of the defendants to money still in the possession of the Government. (Frelinghusen v. Key, 110 U. S., 63, and Boynton v. Blaine 139 U. S., 306.)

In connection with this branch of the controversy, it was conceded on the part of the defense that if the company has no vested right of property in the award or its proceeds, it was then within the constitutional power of Congress to pass the act of 1892, and the defendants have no right to complain. The question in issue in this branch of the case turns upon the inquiry, whether the United States was, prior to the act of 1892, a sovereign, exercising’ only the political responsibility of a sovereign toward its citizens, or a trustee clothed with a duty to be performed in the recognition and protection of a property right in behalf of the defendants. In the case of Frelinglmysen, supra, it is said: “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.” * * * “ Thus, while the claims of the individual citizens were to be considered by the commission in determining the amounts, the whple 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.” * # * “ International arbitration must always proceed on the highest principles of national honor and integrity.” * * * “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.” * * * “ None of the cases cited by counsel are in opposition to this. They all relate to the dispositions 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 case of Boynton v. Blaine (139 U. S., 306) was a proceeding in mandamus to compel the Secretary of State to discharge what ivas alleged to be a mere ministerial duty in the execution of a trust in behalf oí the petitioners. In the decision of that case, on appeal, the Supreme Court sustained the Supreme Court of the District of Columbia in refusing the writ of mandamus. The opinion of the court quotes very largely from the opinion in the Frelinghuysen case; and as to the contention of the claimant that the Government had not now and never had any interest in the funds, and that the rejection of the new treaty by the Senate ousted all jurisdiction and control by the President, the court said that those propositions had been disposed of by the decision in Frelinghuysen v. Key and that the court had no disposition to recede. That opinion quotes with approval “ 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.” In reference to the act of 1878 the court said: “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, dr in such reexamination as a domestic forum as would demonstrate whether the honor of the United States required a different disposition of the particular amounts in question.” # * So long as the political branch of the Government had not lost 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.”

In speaking of the disposition of the Frelinghuysen case and the act of 1878, the court says: “On the contrary, that control was expressly reserved, for it was made the duty of the President, if of the 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 of Congress is not equivalent to a direction by Congress. The political department has not parted with power over the matter and the intervention of the judicial department can not now be invoked.”

TTpon the question of the character in which the Government acts in the presentation and enforcement of claims of the citizens, the counsel for the complainant relies on the case of Rustomjee v. The Queen (L. R. 1, Q. B. div., 487, L. R. 2, Q. B. div., 69).

In that case it was held “ that petition of right would not lie by one of the British merchants to obtain payment of a sum of money alleged to be due to him from one of the Chinese merchants.” In tlie treaty the sum of $3,000,000 was paid by China to England as part of the proceeds of an international arbitration in satisfaction of certain claims due British subjects for wrongs committed against their property Avhile resident in China. The sum was paid in gross, but the claim in question constituted a part of the basis on which the allowance of $3,000,000 was made. On appeal the judgment of the court below sitting in division was affirmed, the court of appeal holding (1), “That there was nothing in the terms of the treaty to make the Crown an agent or trustee in respect to any specific sum for the supplaint or any other person.” (2). “That in all that relates to the making and performing of a treaty in the other sovereign the Crown can not be either a trustee or agent for any subject.” The Chief Justice in his opinion says: “ To say that the Queen was agent for any person seems to me to be utterly unfounded upon any authority whatever.”

In the very able briefs of the counsel for the defendants they cite many cases tending to show that the company has a right of property in the award made in favor of the United States, a part of it being for tbe amount allowed the company, all of which, we have carefully considered and some of which we proceed to examine. The leading cases in that connection were no doubt considered by the Supreme Court in the two cases referred to, and the court remarks that they related to “the disposition to be made of the funds after they had passed beyond the reach of the Government into the hands of private parties.” In the case of Comegys v. Vasse (1 Pet., 193) there ivas a contest between the bankrupt Vasse and the successors to his assignee in bankruptcy, after the payment of the funds into the hands of such successors. We have been unable to find a case in this country in which the controversy was between the Government and the citizen, except the two cases cited in the Supreme Court. In the case of Phelps v. McDonald (99 U. S., 298) the money, it is true, was still in the hands of the agent of the British Government, to whom it had been paid by the United States, and the Supreme Court recognized the right of parties to litigate as to it, before it had actually passed into the custody and control of private parties; but the proceeding did not affect the United States or the English Government, which might have dealt with the money as their interest or duty might dictate, without reference to the suit.

That the Government in this country may become a trustee under certain conditions of the law is well established. It has been held by the Supreme Court that with reference to the proceeds of captured and abandoned property it may become by provisions of law a trustee. In the case of United States v. Klein (13 Wall., 128) it is said “the act of March 12, 1863 (12 Stat. L., 820), to provide for the collection of captured and abandoned property within insurrectionary districts within the United States, does not confiscate or in any case absolutely divest the property of the original owner, though disloyal. By the seizure the Government constituted itself a trustee for those who were entitled or whom it should thereafter recognize as entitled.” Haycraft v. The United States (8 C. Cls., p. 483).

That a debt due an American citizen from a foreign government is property, and can not be taken without the right of compensation, is well-established law. Mead v. United States, (2 C. Cls. 224).

The case of Judson v. Corcoran (17 Howard, 612) is cited by counsel for the defendants as establishing’ the doctrine that the award in this case created a legal title to the money in the company. That case was undoubtedly before the Supreme Court in the case of Frelinghuysen v. Key, and so was the opinion of .the Attorney-General in the Gibbs Case (13 Opinions 19). In the case of Judson v. Corcoran the contention was between two innocent assignees of a portion of the same claim, and the court held that Corcoran’s right was superior, because it was supported by a legal title, based upon the award of the commission appointed to settle the claims of citizens in the fund paid to the United States under the fifteenth article of the treaty of Guadalupe Hildalgo made on the 30th of May, 1848. It was not the award of the mixed commission, but a domestic commission, organized by the sovereign to settle disputes growing out of conflicting claims to the fund. The Supreme Court in the two cases of Key and Boynton did not consider that the case of Judson v. Corcoran had gone to the length of holding that La Abra and Weil had a legal title to a portion of the fund recovered from Mexico. The theory of the court in both cases is adverse to such a conclusion.

The duty of the United States with reference to the claims of its citizens upon foreign governments, is well stated by Judge Davis in the opinion in the case of Gray v. United States (21 C. Cls., 392), where it is said, “That any government has the right to do this (bar by treaty the right of American citizens against France in exchange for release by France of the United States from international obligations to France) as it has the right to refuse war in the prevention of a wronged citizen or to take other action which, at the expense of the individual, is most beneficial to the whole people is too clear for discussion. Nevertheless, the citizen whose property is thus sacrificed for the safety and welfare of the country has his claim against that country and he has a right to compensation which exists even if no remedy in the courts or elsewhere be given. A right often exists where there is no remedy and a most frequent illustration of this is found in the relation of the subject to his sovereign, the citizen to his government.”

So far as the defendant La Abra Company is concerned, the purpose of the treaty of 1868 is not yet accomplished, and with its purpose the United States are still dealing as a sovereign. When the company made application to the Government to collect its claim against the Republic of Mexico, it did. so subject to the duty of the United States to protect its citizen against the encroachments of every foreign power; but subject also to the wise and judicious discretion which the nation had a right to exercise under all the circumstances, in determining its duty to itself, the citizen, and the Government of Mexico. The Government had a right to be satisfied as to the justice of the claim before it demanded satisfaction, either by payment or arbitration, and, if satisfaction was not given, it had a right to consult its own ability and resources in deciding the question of the employment of force in the vindication of the right of the citizen. The sovereign right to determine everything connected with the claim is commensurate with the whole duty of the Government in the premises; and if at any time before the consummation of the transaction it becomes satisfied of the falsity and injustice of the claim, it is not only the right, but the duty of the Government to abandon all further action in bolialf of the citizen.

After the rendition of the award, and while the Government is in possession of the money, if from representations made by the power from which the money was derived, the Government becomes suspicious of the justice of 'the claim upon which the award was made, it then becomes the duty of the sovereign in the discharge of its obligations, as prescribed and recognized by not only international law, but all law incident to civilized nations, to seriously inquire and ascertain its duty not only toward the citizen, but toward the Government from which the money has been derived. It has been conceded that the United States have a right to retry the case before a new commission under a new treaty, but that in no other form .can they affect the integrity of the award. If the United States deals with the results of the commission which sat under the treaty of July 4,1868, as a sovereign, and not as a trustee representing rights of property, then can not they adopt such measures of inquiry as to them seem most expedient to accomplish the desired end?

It is insisted that the proceeding authorized by the act is lacking in the qualities of a law suit; that it is deficient in the necessary elements of a judicial investigation; that it is the creation upon the part of the legislature of a subject-matter which in its nature is not and can not be made justiciable, that tbe domain of judicial power as to subject-matter is well defined in and by tbe law, as recognized by tbe Constitution, and that domain can not be changed by legislative authority without peril and damage to tbe coordinate branches of tbe Federal Government.

In support of that theory, we are cited to two cases in the Supreme Court, the first of which is the case of Haybwrn, reported in 2 Dallas, p. 409. That was a proceeding in mandamus, to compel the Circuit Court of Pennsylvania to put the name of Hayburn upon the pension list, in pursuance of the provisions of an act of Congress of the 23d of March, 1792. The Supreme Court declined to entertain jurisdiction of the petition, because the act imposed upon the Circuit Court, the performance of a duty which in its nature was not judicial. The court in substance decided that by the Constitution the Government of the United States is divided into three branches, that it is the duty of each to abstain from encroach-1 ments on the others, that the legislative can not constitutionally assign to the judicial the performance of any duty not strictly judicial, and that the duties assigned the Circuit Court under said act not being judicial in their nature, the court was not bound as a court to perform them.

In the case of Murray's lessees et al. v. Hoboken Land and Improvement Company (18 Howard, 282) the court after the statement of the contention of the counsel, which was that “the fact that Congress has enabled the District Court to pass upon it is conclusive evidence that it is a judicial controversy,” says, “We can not admit the correctness of the last position. If we were of opinion that this subject-matter can not be the subject of a judicial controversy and that consequently it can not be made a subject of judicial cognizance, the consequence would be that the attempt to bring it under the jurisdiction of a court of the United States would be ineffectual.” If the coordination of the three branches of the Government is the correct theory of the nature and character of the Federal Government, then it follows that the legislative branch by the passage of a law can not take from the other branches any of their constitutional power and jurisdiction. The judicial department of the Government as such by its consitution is intrusted with a subject-matter of jurisdiction, which fundamentally embraces such controversies and contentions as are applicable to the individual rights of the citizen, either of property, liberty, life, or reputation; while the other departments are intrusted with the broader but not more important questions of public policy, political and international action. If the duty of the United States with reference to the award of the commission is purely political, and can not by the exercise of constitutional authority upon the part of the legislature, become the subject-mattei of personal right upon the part of a citizen, then the jurisdic tion sought to be given to the court under the act of 1892,i> lacking in the essential quality of a judicial proceeding, ano the demurrer should be sustained upon the ground that the; act is unconstitutional.

The Supreme Court has from the earliest period of the Constitution most jealously guarded the jurisdiction of the courts, and during the first seventy-five years of the Government five acts of Congress were declared to be unconstitutional, all of which related to the jurisdiction of the national judiciary.

It will be seen by a reference to the cases — Haybarn Case, (2 Dall., 209), United States v. Yale Todd (13 Howard, 52), Marbury v. Madison (1 Cranch, 137), United States v. Ferreira (13 Howard, 40), Gordon v. United States (2 Wall., o61) — that in every instance the enactment of the statute was an effort upon the part of Congress to increase the jurisdiction of the courts by requiring of them the performance of a duty which in itself was not judicial. It is a most remarkable coincidence that in all of the cases the unconstitutionality of the acts grew out of an increase rather than a diminution of the jurisdiction of the judiciary. It happily illustrates that broad and generous confidence which the popular branch of the Government has reposed in the more limited department, in not regarding its jurisdiction with selfish jealousy.

In this connection we are brought directly to consider the provisions and purpose of the act of 1892. In 1877 the political branch of the Government found itself in the possession of a large amount of money, which came to it through the medium of an award of a mixed commission; the basis of that award was a claim which belonged to citizens of the United States; the power from which it was obtained alleged that the award in favor of the United States had been procured by .fraud; that its retention and distribution by the United States would be in violation of that good faith which from the requirements of international law should always subsist between nations; and in consideration of the premises, the power paying the money asked that the question of its liability might be examined in some form, not as a matter of right in resistance to the judgment of the arbitration, but as a matter of grace and favor. The Government of the United States became most seriously impressed by the gravity of the charge and the evidence to sustain it; and in .the exercise of its powers and duties as a sovereign determines that it will inquire as to the truth of the charge of fraud, and from the result of that examination discharge its duty to itself, as the sovereign of the citizen, and to the Bepublic of Mexico. Can there be any serious question as to the obligation and duty of the Government if while it has the control of the fund, it becomes suspicious of the justice of the judgment which it has recovered against Mexico?

The Government, in pursuance of what it believed to be its duty in the premises, passed the act of June 18,1878 (20 Stat. L., 144), which provides: That the President is requested to investigate any charges of fraud presented by the Mexican Government as to the cases of Benjamin Weil and La Abra Mining Company, and if he shall be of the opinion, “That the honor of the United States, the principles 0f 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 ' pay mei it of said awards, or either of them, until such case, or cases, shall be retried and decided in such manner as the Government of the United States and Mexico may agree, or until Congress shall otherwise direct.”

That statute became the subject of judicial review in the two eases of Frelinghuysen v. Key and Boynton v. Blaine, and in both cases it received the sanction of the Supreme Court as constitutional and proper legislation.

It was held in the Frelinghuysen case, .as to the act of 1878, “ That it was only an expression of the desire of Congress to have the charges investigated, but did not limit or increase the executive powers in that respect under preexisting law.” (Frelinghuysen v. Key, 110 U. S., 64.)

The act of December 28, 1892, is an act to amend and enlarge the act approved June 18, 1878, and carries out the general policy of investigation as recognized by the act of1878. In the view which we now take of the decision in the case of Boynton v. Blaine, we eliminate from the consideration of this case all speculation upon the subject of whether the United States is a sovereign or trustee; .whether the company has a vested right of property in the fund, or award, and whether the claim is in abeyance or in esse, and place our conclusion as to the legality of the act of 1892 upon what is said in that case.

The court, in the conclusion of the opinion, held in substance that so long as the political branch of the Government had not1 lost control of the fund, that the claimant as between itself and the Government was not in a position to insist on the conclusiveness of the award; that by the act of 1878 that control was expressly reserved, and that such control was to be kept until a retrial could be had in an international tribunal if the two Governments so agreed, or in a domestic tribunal if Congress so directed. It seenrs to us that the very legislation which the Supreme Court anticipated in its decision as the outcome of the legislation of 1878 followed in the legislation of 1892. The last-named act provided a more effective and appropriate form of investigation than could be instituted under the act of 1878 by the President, in converting the process of investigation into the judicial forum; and one of the recitals in the act is “the executive govern ment is not furnished with means of instituting and pursuing methods of investigation which can coerce the production of evidence, or compel the examination of parties and witnesses.”

By the act of 1892 the United States recognizes the fact of the claim of the company to the unpaid portion of the award, and by that recognition establishes in the company the existence of a right, which becomes the subject-matter of judicial cognizance by the fact that it is recognized; and by the force of the statute it passes from a mere grace as against the sovereign to a right susceptible of justiciable determination.

The recognition by the United States of the claim of the company lias imparted to it the qualities of property which, as between the company and the United States for the purpose, not of determining a political question, but to ascertain a fact, is sufficient to support the judicial proceeding contemplated by the statute. Congress, by the act of 1892, declared a trust in the remaining funds for the purpose of determining the question of fraud urged by the Bepublic of Mexico, and conferred on this and the Supreme Court the judicial power of deciding that question. The statute provides, “ to determine whether the award made by the United States and Mexican Mixed Commission in respect to the claim o'f 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 or fraudulent practices on the part of said La Abra Company.” Congress having recognized the claim, there was by the force of that recognition a justiciable right which might be made the basis of judicial jurisdiction, as it is by the provisions of the act.

The act of 1892 having recognized a claim on the part of the company, equitable in its character, and Mexico, in subordination to the judgment of the commission, having questioned the justice of the claim, the Government finds itself in the condition of a trustee, having in its possession money to which it lays no claim as property, files this bill in the form of a bill of interpleader, or to quiet title, to have judicially determined its duty with reference to the money as property. The unpaid balance of the award by the act of 1892 belongs either to the company or the Bepublic of Mexico, and while Mexico is not a claimant, in the language of one of its communications to the State Department it is said, “not to prevent the awards made by the umpire in the now extinct Mixed Claims Commission, but only in the interest of rectitude and justice to render manifest the fraud committed by the parties interested.”

Aside from the constitutional question raised by the demurrer as to the right of Congress to pass any law upon the subject, the legislation is most appropriate to the condition of the fund. The Government of Mexico insists, in the language of the statute, that the award was obtained by fraud, effectuated by means of false swearing, or other false or fraudulent practices on the part of the company, and as the experience of mankind proves that the most approved form of investigation of questions of that kind is to be found in and by tbe rules of investigation established by judicial tribunals, it was eminently proper that Congress in the absence of a treaty should adopt the judicial form of inquiry.

It is further specially alleged in the demurrer that the United States have no interest in the proceeding; that the Government of Mexico is the party interested; that since the discovery of the alleged fraud the said Government has had a remedy by suit' against the wrongdoers in the courts of the United States; that Mexico is guilty of laches in not pursuing that remedy; that therefore the United States are not entitled to the relief sought; that the matter is res judicata; that the act is unconstitutional because it assumes to bind the court in the adjudication of the questions submitted; that a new trial can not be granted by an act of Congress, and that the provisions of the act are in derogation of the fundamental rights and powers of judicial authority.

We have already adverted to the relation of the United States to the fund in controversy, and the claim of the company incident to it, by the terms of the act of 1892, and it is not now necessary to enlarge upon that branch of the case. If Mexico had sought the jurisdiction of the courts of the United States, in litigation with the company, it would have been an attack on the integrity of the judgment of the commission in direct violation of the terms of the treaty and the principles of international law applicable to the results of mixed commissions. That course was at one time contemplated by Mexico, and bills were prepared for that purpose; but upon most serious objections by the Secretary of State of the United States it was abandoned.

In support of one of the objections raised by the demurrer it is contended that the terms of the statute attempts to control the 11 adjudication, discretion, and action of the court,” and that as a result of such interference and control the judicial discretion and prerogative of the court in reaching a decree is impaired and destroyed. In support of this contention our attention is called to the case of the United States v. Throckmorton (98 U. S., 61-68).

The statute provides 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. 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 said court copies of all proofs admitted by 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.”

In this connection it becomes material for us to inquire whether the investí g’ation and trial contemplated by the act of 1892 is to be based upon such testimony as was before the commission, and such competent testimony as may be offered by either party, or whether the trial and investigation may proceed upon such testimony as was heard by the commission on the original trial.

In the Throckmorton case it is in substance decided that the frauds for which a bill will lie to set aside a judgment or decree between the same parties, rendered by a court of competent jurisdiction, are those which are extrinsic of collateral to the matter tried, and not a fraud which was in issue in the former suit.

The rule of law announced in that case is but a repetition of the doctrine of many cases, and were this an ordinary proceeding in review of the finding and judgment of a court, such cases would be applicable; but the trial and investigation provided by the law of 1892 is not subject to the rules applicable to proceedings in chancery to set aside a judgment or decree.

The case is to proceed upon “ the proofs admitted by the mixed commission in connection with such competent evidence as may be offered by either party,” and the court is to consider the whole evidence in arriving at a conclusion as to whether the finding of the commission was procured by fraud on the part of the company. It is not a trial upon newly discovered evidence in the technical sense of the law, but upon the whole evidence such as has been offered and such as may be offered.

The United States by the act of 1892 suspended their relation to the fund as a sovereign; and by the terms of that act recognized a right in the defendants, but subjected that right to the provisipns of the statute which recognizes it.

Whatever claim the defendants have to the fond in the possession of the Government is subservient to the terms and provisions of the statute, and they can not complain of its provisions, because from it proceed their rights. They are under legal obligations to become subject to the jurisdiction of the court, because they as against the sovereign insist upon a recognition and adjustment of their claim. It may not be within the power of Congress to subject the ordinary rights of property of the citizen against the will of the owner to the jurisdiction of this court; but in this case, because of its peculiar subject-matter, it is constitutional for Congress to impose the conditions and terms of the act of 1892.

As the substance of the other objections appearing in the demurrer are discussed and determined in what has been said upon other branches of the case, it is not necessary to notice them in detail.

If the court upon an examination of the cause, in the light of the original proof and such competent evidence as may be offered, should come to the conclusion that the award by the commission was obtained through fraud effectuated by false swearing or other false and fraudulent practices of said company, then it will be the duty of the court to decree that the company, its legal representatives and assigns, be barred and foreclosed from all claim to the money, or part thereof, so paid by the Republic of Mexico, and upon the faith of that finding, subject to an appeal to the Supremé Court of the United States, the President is authorized to return to the Government of Mexico the money still remaining in the custody of the United States.

Inasmuch as this opinion holds that the statute is constitutional in its entire scope, it is not necessary to discuss the question as to whether it is g.ood to a certain extent, and would authorize the finding upon the part of the court as to the fact whether a fraud was committed in procuring the award from and through the commission.

As there is no express provision for a decree in favor of the defendants, it is objected to the statute that in that particular it is defective in the requirements of a constitutional law.

The scope and purpose of the act is to submit to the decision of the court the question as to whether the award was obtained “by fraud effectuated by means of false swearing or other false and fraudulent practicesand if tbe issue is found for the United States, then, as a result of that finding, it-is made the duty of the President to return the money, but if the issue is found for the defendants as to said money, or a severable part of the same, then it is made the duty of the Secretary of State to proceed to distribute so much of the said award as shall be found not obtained by fraud.

The directions of the statute 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. If the court should decide that no fraud or fraudulent practice was perpetrated by the company in procuring the award, then the decree would specifically find that fact, which would be in law a finding for the company, and upon that finding in form of a decree it would be the duty of the Secretary of State to pay the money to the company or its assignees. As to the point made in the demurrer, that the act of 1892 is unconstitutional, upon the ground that it was not legally approved by the President, reference is made to the opinion of Judge Nott, in the case of The United States v. Alice Weil (post) administratrix, submitted at the present term. This case and the case of Weil, although referred by different statutes, present the same question of approval by the Presi-ident. The statutes are in exact terms except as to name, were passed and approved at the same tim.e. Assuming as true (as we are authorized by the demurrer) the charges of the bill constituting the alleged fraud, the court overrules the demurrer on ou the question of jurisdiction and the sufficiency of the bill, and leave is granted respondents to answer or plead if they so desire by the 1st day of July.

Davis, J., did not sit in this case and took no part in the decision.  