La Abra Silver Mining Company v. United States
Argued on question of jurisdiction November 30 and December 1, 1898.

Argued on merits February 20, 21, and 23, 1899.

Decided December 11, 1899.

[Syllabus from pages 423-425 intentionally omitted]

The questions involved in this case arise from a claim made by the La Abra Silver Mining Company, a New York corporation, for damages alleged to have been sustained in consequence of certain acts and omissions of duty upon the part of official representatives of the Republic of Mexico.

The claim was originally the subject of investigation by a commission organized pursuant to a convention between the United States of America and the Republic of Mexico concluded July 4, 1868, and proclaimed February 1, 1869. 15 Stat. at. L. 679.

An award was made by the Commission in relation to this claim, but it has been executed only in part-its full execution having been suspended by legislation in conformity with which the present suit was instituted to ascertain whether the award had been obtained by fraud effectuated by means of false swearing or other false and fraudulent practices on the part of the La Abra Company, its agents, attorneys, or assigns. 27 Stat. at L. 409, chap. 14.

It will conduce to a clear understanding of the questions to be determined if we state fully the circumstances that led to the organization of the commission, and show how it came about that a court established by this government took cognizance of a moneyed demand made by an American corporation against a foreign government.

By the above convention of July 4, 1868, it was provided that all claims on the part of corporations, companies, or private indiviauals, citizens of the United States or of the Republic of Mexico, arising from injuries to their persons or property committed by the authorities of the respective governments, and presented to either government for its interposition with the other since the treaty of Guadalupe Hidalgo of February 2, 1848, and which remained unsettled or did not arise out of any transaction prior to that date, as well as any other claims presented within the time prescribed in the convention, should be referred to two commissioners-one to be appointed by the President of the United States by and with the advice and consent of the Senate and the other by the president of the Mexican Republic.

The commissioners were conjointly to investigate and decide the claims presented to their notice in such order and manner as they thought proper, but 'upon such evidence or information only' as should 'be furnished by or on behalf of their respective governments.' Where they failed to agree in opinion upon any individual claim, they were to call to their assistance an umpire, who was to decide upon it finally and without appeal. It was competent for each government to name one person to attend the commissioners as its agent, to present and support claims on its behalf, and to represent it generally in all matters connected with the investigation.

When every case presented had been decided by the commissioners or the umpire, the total amount awarded in favor of the citizens of one government was to be deducted from that awarded to the citizens of the other government, and the balance to the amount of $300,000 was to be paid to the government in favor of whose citizens the greater sum had been awarded, without interest or any other deduction than that specified in the convention. The residue was to be paid in annual instalments not to exceed $300,000 in any one year, until the whole amount had been paid.

The contracting parties agreed to consider the result of the proceedings of the commission as a full, perfect, and final settlement of every claim upon either government, arising out of any transaction of a date prior to ratification of the convention, and to give full effect to the decision of the commission or the umpire without objection, evasion, or delay; and they further engaged that every such claim, whether or not presented to the notice of, made, preferred, or laid before the commission, should from and after the conclusion of its proceedings be considered and treated as finally settled, barred, and thereafter inadmissible.

The commission was organized in the city of Washington, and held its first meeting on the 31st day of July, 1869, Mr. William H. Wadsworth and Senor Don Miguel Maria de Zamacona being the commissioners respectively, and Mr. J. Hubley Ashton and Mr. Caleb Cushing, the agents respectively, on behalf of the United States and Mexico. Dr. Francis Lieber, the first umpire, having died, he was succeeded by Sir Edward Thornton, who at that time was the British minister accredited to the government of the United States at Washington.

On the 23d day of February, 1870, Secretary Fish issued a circular referring to the convention of 1868 and stating that the Department of State deemed it advisable to refer to the joint commission all claims of corporations and citizens of this country without special examination of their merits. He took care to say that the government thereby expressed no opinion either as to the merits of the claims presented or as to the principles of law to be invoked in their support. The responsibility of deciding questions of fact and law, he observed, rested with the commissioners.

On the 17th day of March, 1870, the La Abra Company gave written notice to the Secretary of State that it claimed from Mexico $1,930,000 'for damages and losses suffered by it in consequence of the violence and outrages committed by the authorities of Mexico against the rights of said company in 1867 and 1868.' It asked for the interposition of the government of the United States with Mexico for the payment of that demand, and requested that its claim and proofs thereafter to be produced be referred to the commission for settlement. This notice was transmitted by the Secretary to the commission.

Subsequently, June 14, 1870, the company filed with the commission a memorial of its claim, stating the amount thereof to be $3,000,030. Before the case was finally heard the claim was increased to $3,962,000.

The period within which the commission was to conclude its labors was from time to time extended by the two governments. Of the claims presented by the United States there was allowed the sum of $4,125,622.30, while of the claims presented by Mexico the sum of $150,498.41 was allowed.

In respect of the claim of the La Abra Company the commissioners differed in opinion, and the case went to the umpire for consideration.

The award of the umpire, which was made December 27, 1875, embraced the following items as representing the damages sustained by the La Abra Company and to be paid by the Republic of Mexico: (1) On account of subscriptions and sales of stock, $235,000; (2) money lent and advanced, $64,291.06; (3) rent, expenses, salaries, law expenses, $42,500: (4) amount derived from reduced ores, $17,000; (5) ore extracted from the mines and deposited at the mills, $100,000; in all, $458,791.06. On $358,791.06, the aggregate of the first four items, the umpire allowed interest from March 20, 1868, at 6 per cent, and upon $100,000, the fifth item, interest was allowed from March 20, 1869. The total amount of principal and interest allowed was $683,041.32.

An application was made to the umpire by the government of Mexico for a rehearing of the case, but a rehearing was denied.

Subsequently, the Mexican government without at all disputing its obligation under the convention of 1868 to comply with the award, placed in the possession of the Secretary of State of the United States certain books, papers, and documents which it alleged had been then recently discovered and would show that the claim of the La Abra Company was not only fictitious and fraudulent, but had been supported by false and perjured testimony. At that time a large part of the sum awarded to the company had been paid by Mexico and was in the hands of the Secretary of State. The distribution of the amount received had been delayed by the Secretary acting under the orders of the President to await legislation deemed necessary in order to make good to the fund the amount with which it was chargeable, and also because, as stated by the Secretary, it was desirable that the form and manner of the reservation from the instalment in hand of the expenses of the government should first be settled.

These difficulties were met by the passage of the act of June 18, 1878. 20 Stat. at L. 144, chap. 262.

By the first section of that act the secretary of State was authorized and required to receive all moneys paid by the Mexican Republic under and in pursuance of the conventions of July 4, 1868, and April 29, 1876, and whenever and as often as any instalments should be paid by the Mexican Republic to distribute the moneys received in ratable proportions among the corporations, companies, or private individuals respectively in whose favor awards were made, or to their legal representatives or assigns, except as in that act otherwise limited or provided, according to the proportion which the respective awards should bear 'to the whole amount of such moneys then held by him, and to pay the same, without other charge or deduction than is hereinafter provided, to the parties respectively entitled thereto.'

By the second section it was provided that 'out of any moneys in the Treasury not otherwise appropriated a sufficient sum is hereby appropriated to enable the Secretary of the Treasury to pay to the Secretary of State of the United States, in gold or its equivalent, the equivalent of fifty thousand five hundred and twenty-eight dollars and fifty-seven cents in Mexican gold dollars, and ten thousand five hundred and fifty-nine dollars and sixty-seven cents in American gold coin, and eighty-nine thousand four hundred and ten dollars and seventeen cents in United States currency, said sums being the aggregate in said currencies respectively of the awards made under the said convention of July 4, 1868, in favor of citizens of the Mexican Republic against the United States, and having been deducted from the amount awarded in favor of the citizens of the United States, and payable by Mexico, in accordance with article four of the said treaty; and that said sums, when paid to the Secretary of State as aforesaid, shall be regarded as part of the awards made under the said treaty, to be paid or distributed as herein provided.' The third section made provision for meeting out of the moneys received by the Secretary the expenses of the commission, including contingent expenses paid by the United States as ascertained and determined in pursuance of the provisions of the treaty.

The fourth section provided that in the payment of money in virtue of the act to any corporation, company, or private individual, the Secretary of State should first deduct and retain or make reservation of such sums, if any, as might be due to the United States from any corporation, company, or private individual in whose favor awards were made under the convention.

The fifth section of the act was in these words: 'And whereas the government of Mexico has called the attention of the government of the United States to the claims hereinafter named with a view to a rehearing, therefore be it enacted, that the President of the United States be, and he is hereby, by, requested to investigate any charges of fraud presented by the Mexican government as to the cases hereinafter named, and if he shall be of the opinion that the honor of the United States, the principles of public law, or considerations of justice and equity, require that the awards in the cases of Benjamin Weil and La Abra Silver Mining Company, or either of them, should be opened and the cases retried, it shall be lawful for him to withhold payment of said awards, or either of them, until such case or cases shall be retried and decided in such manner as the governments of the United States and Mexico may agree, or until Congress shall otherwise direct. And in case of such retrial and decision, any moneys paid or to be paid by the Republic of Mexico in respect of said awards respectively shall be held to abide the event, and shall be disposed of accordingly; and the said present awards shall be set aside, modified, or affirmed, as may be determined on such retrial: Provided, That nothing herein shall be construed as an expression of any opinion of Congress in respect to the character of said claims, or either of them.' 20 Stat. at L. 144, chap. 262.

Pursuant to the direction of President Hayes the investigation required by the fifth section of the act of July 4, 1878, was made by the Secretary of State.

Having reviewed all the proceedings of the commission, including the testimony originally submitted to it, the supplemental evidence furnished in support of the allegations of fraud as to the Weil and La Abra claims, and the action theretofore taken by the Department of State, Secretary Evarts referred to the contention that in deciding against opening those awards diplomatically and reexamining them by a new international commission, the whole discretion vested in the Executive as a part of the treaty-making power and under the special provisions of the act of Congress was exhausted, and that the payments in the cases referred to should be no longer suspended. He said that a solicitous attention to the rights of the claimants and the duty of the Executive in the premises had confirmed him in the opinion that Congress should determine whether 'the honor of the United States' required any further investigation in these cases or either of them, and provide the efficient means of such investigation, if thought necessary.

After stating the considerations which led him to that conclusion, the Secretary proceeded: 'While these considerations led to the conclusion that these cases ought not to be made the subject of a new international commission, I was yet of opinion that 'the honor of the United States' was concerned to inquire whether in these cases, submitted by this government to the commission, its confidence had been seriously abused, and the government of Mexico, acting in good faith in accepting a friendly arbitration, had been subjected to heavy pecuniary imposition by fraud and perjury in the maintenance of these claims, or either of them, before the commission. In furtherance, however, of this opinion, it seemed to me apparent that the Executive discretion under the act of Congress could extend no further than to withhold further payments on the awards until Congress should, by its plenary authority, decide whether such an investigation should be made, and should provide an adequate procedure for its conduct, and prescribe the consequences which should follow from its results. Unless Congress should now make this disposition of the matter, and furnish thereby definite instructions to the Department to reserve further payments upon these awards till the conclusion of such investigation, and to take such further order with the same thereafter as Congress might direct, it would appear to be the duty of the Executive to accept these awards as no longer open to reconsideration, and proceed in the payment of the same pro rata with all other awards under the convention.' Senate Ex. Doc. No. 150, 49th Cong. 2d Sess.

The suggestions of the Secretary having been approved by the President, the first, second, and third instalments of the award received from Mexico on account of the claim of the La Abra Company, amounting to $138,565.52, were paid to the representatives of that company. Payments were subsequently made out of moneys received from Mexico, amounting to $103,117.54, leaving in the possession of the United States on account of the award $403,030.08.

After Mr. Arthur became President further distribution of the money received was suspended because of the negotiation of a treaty between the United States and Mexico for a re-examination of the Weil and La Abra cases. This treaty was signed on the 13th day of July, 1882, and was submitted to the Senate for its approval, but after some delay it was rejected by that body.

While that treaty was before the Senate, Key, as assignee of part of the Weil claim, and the La Abra Company, filed separate petitions in the supreme court of the District of Columbia for a mandamus upon the Secretary of State, compelling him to pay to the petitioners their distributive shares of the sums paid by Mexico in accordance with the terms of the convention of July 4, 1868. In Key's Case the writ asked for was awarded, while in the La Abra Case the petition was dismissed. The cases having been brought to this court, the judgment in the Key Case was reversed with direction to dismiss the petition and the judgment in the La Abra Case was affirmed. Frelinghuysen v. Key, 110 U.S. 63, 28 L. ed. 71, 3 Sup. Ct. Rep. 462.

Chief Justice Waite, delivering the judgment of this court, said: 'No nation treats with a citizen of another nation except through his government. The treaty, when made, represents a compact between the goverments, and each government holds the other responsible for everything done by their respective citizens under it. The citizens of the United States having claims against Mexico were not parties to this convention. They induced the United States to assume the responsibility of seeking redress for injuries they claimed to have sustained by the conduct of Mexico, and as a means of obtaining such redress the convention was entered into, by which not only claims of citizens of the United States against Mexico were to be adjusted and paid, but those of citizens of Mexico against the United States as well. By the terms of the compact the individual claimants could not themselves submit their claims and proofs to the commission to be passed upon. Only such claims as were presented to the governments respectively could be 'referred' to the commission, and the commissioners were not allowed to investigate or decide on any evidence or information except such as was furnished by or on behalf of the governments. After all the decisions were made and the business of the commission concluded, the total amount awarded to the citizens of one country was to be deducted from the amount awarded to the citizens of the other, and the balance only paid in money by the government in favor of whose citizens the smaller amount was awarded, and this payment was to be made, not to the citizens, but to their government. Thus, while the claims of the individual citizens were to be considered by the commission in determining amounts, the whole purpose of the convention was to ascertain how much was due from one government to the other on account of the demands of their respective citizens. As between the United States and Mexico, the awards are final and conclusive until set aside by agreement between the two governments or otherwise. Mexico cannot, under the terms of the treaty, refuse to make the payments at the times agreed on if required by the United States. This she does not now seek to do. Her payments have all been made promptly as they fell due, as far as these records show.

  *  *  *  * 'As to the right of the United States to treat with Mexico for a retrial, we entertain no doubt. Each government, when it entered into the compact under which the awards were made, relied on the honor and good faith of the other for protection as far as possible against frauds and impositions by the individual claimants. It was for this reason that all claims were excluded from the consideration of the commission except such as should be referred by the several governments, and no evidence in support of or against a claim was to be submitted except through or by the governments. The presentation by a citizen of a fraudulent claim or false testimony for reference to the commission was an imposition on his own government, and if that government afterwards discovered that it had in this way been made an instrument of wrong towards a friendly power, it would be, not only its right, but its duty, to repudiate the act and make reparation as far as possible for the consequences of its neglect, if any there had been. International arbitration must always proceed on the highest principles of national honor and integrity. Claims presented and evidence submitted to such a tribunal must necessarily bear the impress of the entire good faith of the government from which they come, and it is not to be presumed that any government will for a moment allow itself knowingly to be made the instrument of wrong in any such proceeding. No technical rules of pleading as applied in municipal courts ought ever to be allowed to stand in the way of the national power to do what is right under all the circumstances. Every citizen who asks the intervention of his own government against another for the redress of his personal grievances must necessarily subject himself and his claim to these requirements of international comity. None of the cases cited by counsel are in opposition to this. They all relate to the disposition to be made of the proceeds of international awards after they have passed beyond the reach of the governments and into the hands of private parties. The language of the opinions must be construed in connection with this fact.' Frelinghuysen v. Key, 110 U.S. 63, 71-73, 28 L. ed. 71-74, 3 Sup. Ct. Rep. 462.

Referring to the act of 1878, and observing that it did not undertake to set any new limits on the powers of the Executive, the court further said: 'From the beginning to the end it is, in form even, only a request from Congress to the Executive. This is far from making the President for the time being a quasi-judicial tribunal to hear Mexico and the implicated claimants and determine once for all, as between them, whether the charges which Mexico makes have been judicially established. In our opinion it would have been just as competent for President Hayes to have instituted the same inquiry without this request as with it, and his action with the statute in force is no more binding on his successor than it would have been without. But his action as reported by him to Congress is not at all inconsistent with what has since been done by President Arthur. He was of opinion that the disputed 'cases should be further investigated by the United States to ascertain whether this government has been made the means of enforcing against a friendly power claims of our citizens based upon or exaggerated by fraud,' and, by implication at least, he asked Congress to provide him the means 'of instituting and furnishing methods of investigation which can coerce the production of evidence or compel the examination of parties or witnesses.' He did report officially that he had 'grave doubt as to the substantial integrity of the Weil claim' and the 'sincerity of the evidence as to the measure of damages insisted upon and accorded in the case of La Abra Company.' The report of Mr. Evarts cannot be read without leaving the conviction that if the means had been afforded, the inquiries which Congress asked for would have been further prosecuted. The concluding paragraph of the report is nothing more than a notification by the President that unless the means are provided, he will consider that the wishes of Congress have been met, and that he will act on such evidence as he has been able to obtain without the help he wants. From the statements in the answer of Secretary Frelinghuysen in the Key Case, it appears that further evidence has been found, and that President Arthur, upon this and what was before President Hayes, has become satisfied that the contested decisions should be opened and the claims retried. Consequently, the President, believing that the honor of the United States demands it, has negotiated a new treaty providing for such a re-examination of the claims, and submitted it to the Senate for ratification. Under these circumstances it is, in our opinion, clearly within the discretion of the President to withhold all further payments to the relators until the diplomatic negotiations between the two governments on the subject are finally concluded. That discretion of the Executive Department of the government cannot be controlled by the Judiciary. The United States, when they assumed the responsibility of presenting the claims of their citizens to Mexico for payment, entered into no contract obligations with the claimants to assume their frauds and to collect on their account all that, by their imposition of false testimony, might be given in the awards of the commission. As between the United States and the claimants, the honesty of the claims is always open to inquiry for the purpose of fair dealing with the government against which, through the United States, a claim has been made.'  Frelinghuysen v. Key, 110 U.S. 63, 74, 76, 28 L. ed. 71, 75, 3 Sup. Ct. Rep. 462.

After the rejection of the treaty negotiated in 1882, President Cleveland in 1886 sent a message to the Senate calling attention to the act of 1878, and asking consideration of the status of the Weil and La Abra claims. By that message Congress was in substance notified that if it did not take some action in the matter the President would proceed to distribute the funds received from Mexico under the award and remaining in the hands of the United States. The matter having been referred to the Senate committee on foreign relations, it recommended the passage of a bill providing for a reinvestigation of those claims. The committee's report on the subject thus concluded: 'This brief r esum e of the correspondence between the two governments shows that Mexico, while observing, in good faith, all her obligations under the convention, has earnestly and constantly urged upon the United States that these claims were fraudulent. This appeal to the spirit of justice cannot be ignored, but should be met by a frank and open examination by our own courts of the facts presented by Mexico. These claimants have no vested rights growing out of these claims which entitle them to come between Mexico and the United States, and to demand the payment of any part of these awards that are the outgrowth of fraud and perjury.' Senate Doc. Report No. 2705, p. v., 50th Cong. 2d Sess.

No action having been taken by Congress, the subject was again mentioned in a message sent by the President to the Senate on the 5th of March, 1888, in response to resolutions of that body. The message was accompanied by a report from Mr. Bayard, Secretary of State, in which reference was made to the action of his predecessor. He said: 'It is fair to assume that the rejection by the Senate of the treaty signed by Mr. Frelinghuysen, for an international rehearing of the awards, was in no sense an expression of opinion adverse to their investigation, which Mr. Evarts had recommended. It is rather to be regarded as an approval of the opinion which he also expressed, that the investigation should, under the circumstances, be made by this government for itself, as a matter affecting solely its own honor. It is a remarkable fact that whenever, since the distribution of the Mexican fund was commenced, the deliberate judgment of the official authorized by Congress to make such distribution has been recorded upon the two awards in question, it has uniformly been to the effect that the evidences that the United States, in presenting the claims, had been made the victim of fraudulent imposition were of such a character as to require investigation by a competent tribunal, possessing appropriate powers for that purpose. . . . The sole question now presented for the decision of this government is whether the United States will enforce an award upon which the gravest doubts have been cast by its own officers in opinions rendered under express legislative direction, until some competent investigation shall have shown such doubts to be unfounded, or until that branch of the government competent to provide for such investigation shall have decided that there is no ground therefor.' Senate Doc. Report No. 2705, p. v., 50th Cong. 2d Sess. The Secretary recommended that Congress take action providing expressly for the reference of the Weil and La Abra claims to the court of claims or such other court as was deemed proper, in order that a competent investigation of the charges of fraud might be made.

Pending the consideration of this matter in the Senate the committee on foreign relations examined the evidence alleged to have been discovered by Mexico after the award in question, especially certain letters and copies of letters of the officers and agents of the La Abra Company contained in a letter-impression book that was not before the commission. The committee in their report to the Senate on March 1, 1889, among other things said: 'The main allegation in the petition of the La Abra Company presented to the mixed commission, to wit, that the company was dispossessed of its property by the forcible interference of the Mexican authorities, is disproved and shown to have been wholly false, and this mainly by the correspondence of the company's own officers and agents; and it appears by the testimony taken by the committee that the abandonment of the property and the failure of the company were wholly due to the poverty of the mines and the consequent financial embarrassment of the company.' After reviewing, in the light of precedent and upon principle, the question of the power of Congress to order a re-examination of the La Abra claim, the committee concluded its report to the Senate: 'It thus appears that the power of Congress to reopen the La Abra award, and to direct a suit to be brought to judicially determine whether or not it was procured by fraud, has been affirmed by successive Secretaries of State, assumed by Congress in the passage of the act of June 18, 1878, expressly declared by committees of both houses of Congress, and substantially held to exist by the highest judicial tribunal of this government.' Senate Doc. Report No. 2705, pp. ix., xviii., 50th Cong. 2d Sess.

Reference should here be made to United States ex rel. Boynton v. Blaine, 139 U.S. 306, 323-326, 35 L. ed. 183, 189, 190, 11 Sup. Ct. Rep. 607, as announcing principles that affect certain questions arising in the present litigation. That case was commenced on the 23d day of November, 1889, in the supreme court of the District of Columbia. Boynton, the relator, as assignee of Weil, sought to compel the Secretary of State to pay certain moneys received under the award made pursuant to the convention of 1868. The mandamus asked for was refused and the petition of Boynton was dismissed. That judgment was affirmed by this court. The present Chief Justice, delivering the unanimous judgment of the court, declared its adherence to the principles announced in Frelinghuysen v. Key, above cited, and among other things said: 'As between nations, the proprietary right in respect to those things belonging to private individuals or bodies corporate within a nation's territorial limits is absolute, and the rights of Weil cannot be regarded as distinct from those of his government. The government assumed the responsibility of presenting his claim, and made it its own in seeking redress in respect to it. Under this convention it was the balance that was to be paid, after deducting from what was found in favor of one government that which was found in favor of the other. So that the moneys paid in liquidation of that balance belonged to the United States, to be increased by appropriation to the extent of the amounts allowed Mexico, and the aggregate to be distributed to the claimants as might be provided.' Again: 'Congress, in furnishing the auxiliary legislation needed to carry the results of the convention under consideration into effect, requested the President to so far investigate certain charges of fraud as to determine whether a retrial ought to be had. This inquiry might have resulted in reopening the awards as between the two nations, or in such re-examination in a domestic forum as would demonstrate whether the honor of the United States required a different disposition of the particular amounts in question. The valdity and conclusiveness of the awards remained unimpugned so long as they were permitted to stand, and the principle of res judicata could not be invoked against the United States by individual claimants while the controversy raised as to them remained in fieri. In Frelinghuysen v. Key, while conceding the essential value of international arbitration to be dependent upon the certainty and finality of the decision, the court adjudged that this government need not therefore close its doors against an investigation into the question whether its influence has been lent in favor of a fraudulent claim. It was held that no applicable rule was so rigid as not to be sufficiently flexible to do justice, and that the extent and character of any obligation to individuals, growing out of a treaty, an award, and the receipt of money thereon, were necessarily subject to such modification as circumstances might require. So long as the political branch of the government had not lost its control over the subject-matter by final action, the claimant was not in a position, as between himself and his government, to insist on the conclusiveness of the award as to him. And while it is true that for the disposition of the case of Frelinghuysen v. Key, it was sufficient that it appeared that diplomatic negotiations were pending, which, as the court demonstrated, the act of 1878 in no manner circumscribed, it does not follow that the political department of the government lost its control because those negotiations failed. On the contrary, that control was expressly reserved, for it was made the duty of the President, if of opinion that the cases named should be retried, to withhold payment until such retrial could be had in an international tribunal, if the two governments so agreed, or in a domestic tribunal if Congress so directed, and, at all events, until Congress should otherwise direct. The fact that a difference of view as to whether the retrial should be international or domestic may have arisen and led to delay, or that such difference may have existed on the merits, does not affect the conclusion. The inaction by Congress is not equivalent to a direction by Congress. The political department has not parted with its power over the matter, and the intervention of the judicial department cannot now be invoked.'

This brings us in the orderly statement of the history of this dispute to the act of December 28, 1892, amending and enlarging the above act of June 18, 1878. 27 Stat. at L. 409, chap. 14.

That statute recited that the Secretary of State, after investigating the charge of fraud presented by the Mexican government as to the case of the La Abra Silver Mining Company, had reported that the honor of the United States required that case to be further investigated by the United States to ascertain whether this government had enforced against a friendly power claims of its citizens based upon or exaggerated by fraud, but that the executive branch of the government 'was not furnished with the means of instituting and pursuing methods of investigation which could coerce the production of evidence or compel the examination of parties and witnesses;' that 'the authority for such an investigation must proceed from Congress;' and that the President of the United States had transmitted to Congress the recommendation of the Secretary of State that the case be referred to the court of claims, or such other court as might be deemed proper, in order that the charge of fraud made in relation to this claim might be fully investigated. It was therefore enacted:

'That in further execution of the purpose of said act, the Attorney General of the United States be, and he is hereby, authorized and directed to bring a suit or suits in the name of the United States in the court of claims against La Abra Silver Mining Company, its successors and assigns, and all persons making any claim to the award or any part thereof in this act mentioned, to determine whether the award made by the United States and Mexican mixed commission in respect to the claim of the said La Abra Silver Mining Company was obtained, as to the whole sum included therein, or as to any part thereof, by fraud effectuated by means of false swearing or other false and fraudulent practices on the part of the said La Abra Silver Mining Company, or its agents, attorneys, or assigns; and, in case it be so determined, to bar and foreclose all claim in law or equity on the part of said La Abra Silver Mining Company, its legal representatives or assigns, to the money, or any such part thereof, received from the Republic of Mexico for or on account of such award: and any defendant to such suit who cannot be found in the District of Columbia shall be notified and required to appear in such suit by publication as the court may direct, in accordance with law, as applicable to cases in equity.

'Sec. 2. That full jurisdiction is hereby conferred on the court of claims to hear and determine such suit and to make all interlocutory and final dcerees 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 final decision in such cause to the Supreme Court of the United States may be taken by either party within ninety days from the rendition of such final decree, under the rules of practice which govern appeals from said court; and the Supreme Court of the United States is hereby authorized to take jurisdiction thereof and decide the same.

'Sec. 4. That in case it shall be finally adjudged in said cause that the award made by said mixed commission, so far as it relates to the claim of La Abra Silver Mining Company, was obtained through fraud effectuated by means of false swearing, or other false and fraudulent practices of said company or its assigns, or by their procurement, and that the said La Abra Silver Mining Company, its legal representatives or assigns, be barred and foreclosed of all claim to the money or any part thereof so paid by the Republic of Mexico for or on account of such award, the President of the United States is hereby authorized to return to said government any money paid by the government of Mexico, on account of said award, remaining in the custody of the United States, that has not been heretofore distributed to said La Abra Mining Company or its successors and assigns, which such court shall decide that such persons are not entitled, in justice and equity, to receive out of said fund. 

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