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But his action as reported by him to Con- | notified that if it did not take some action gress is not at all inconsistent with what in the matter the President would proceed to has since been done by President Arthur. distribute the funds received from Mexico He was of opinion that the disputed 'cases under the award and remaining in the hands should be further investigated by the United of the United States. The matter having been States to ascertain whether this government referred to the Senate committee on foreign has been made the means of enforcing against relations, it recommended the passage of a a friendly power claims of our citizens based bill providing for a reinvestigation of those upon or exaggerated by fraud,' and, by im- claims. The committee's report on the subplication at least, he asked Congress to project thus concluded: "This brief résumé of vide him the means of instituting and fur- the correspondence between the two governnishing methods of investigation which can ments shows that Mexico, while observing, coerce the production of evidence or compel in good faith, all her obligations under the the examination of parties or witnesses.' convention, has earnestly and constantly He did report officially that he had 'grave urged upon the United States that these doubt as to the substantial integrity of the claims were fraudulent. This appeal to the Weil claim' and the 'sincerity of the evidence spirit of justice cannot be ignored, but should as to the measure of damages insisted upon be met by a frank and open examination by and accorded in the case of La Abra Com- our own courts of the facts presented by pany.' The report of Mr. Evarts cannot be Mexico. These claimants have no vested read without leaving the conviction that if rights growing out of these claims which enthe means had been afforded, the inquiries title them to come between Mexico and the which Congress asked for would have been United States, and to demand the payment further prosecuted. The concluding para- of any part of these awards that are the out graph of the report is nothing more than a growth of fraud and perjury." Senate Doc. notification by the President that unless the Report No. 2705, p. v., 50th Cong. 2d Sess. 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 re-awards in question, it has uniformly been to sponsibility 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

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. to be regarded as an approval of the opinion which he also expressed, that the investiga. tion 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 com⚫ menced, the deliberate judgment of the of ficial authorized by Congress to make such distribution has been recorded upon the two

It is rather

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 ref

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erence of the Weil and La Abra claims to the made it its own in seeking redress in respect court of claims or such other court as was to it. Under this convention it was the bal deemed proper, in order that a competent in-ance that was to be paid, after deducting vestigation of the charges of fraud might be from what was found in favor of one governmade. Iment that which was found in favor of the Pending the consideration of this matter other. So that the moneys paid in liquidain the Senate the committee on foreign re- tion of that balance belonged to the United lations examined the evidence alleged to have States, to be increased by appropriation to been discovered by Mexico after the award the extent of the amounts allowed Mexico, in question, especially certain letters and and the aggregate to be distributed to the copies of letters of the officers and agents of claimants as might be provided." Again: the La Abra Company contained in a letter- "Congress, in furnishing the auxiliary legis impression book that was not before the com-lation needed to carry the results of the conmission. The committee in their report to vention under consideration into effect, rethe Senate on March 1, 1889, among other quested the President to so far investigate things said: "The main allegation in the certain charges of fraud as to determine petition of the La Abra Company presented whether a retrial ought to be had. This into the mixed commission, to wit, that the quiry might have resulted in reopening the company was dispossessed of its property by awards as between the two nations, or in the forcible interference of the Mexican au- such re-examination in a domestic forum as thorities, is disproved and shown to have would demonstrate whether the honor of the been wholly false, and this mainly by the United States required a different disposi correspondence of the company's own officers tion of the particular amounts in question. and agents; and it appears by the testimony The valdity and conclusiveness of the awards taken by the committee that the abandon- remained unimpugned so long as they were ment of the property and the failure of the permitted to stand, and the principle of res company were wholly due to the poverty of judicata could not be invoked against the the mines and the consequent financial em- United States by individual claimants while barrassment of the company." After re- the controversy raised as to them remained viewing, in the light of precedent and upon in fieri. In Frelinghuysen v. Key, while principle, the question of the power of Con- conceding the essential value of internationgress to order a re-examination of the La al arbitration to be dependent upon the cerÅbra claim, the committee concluded its re- tainty and finality of the decision, the court port to the Senate: "It thus appears that adjudged that this government need not the power of Congress to reopen the La Abra therefore close its doors against an investiaward, and to direct a suit to be brought to gation into the question whether its influjudicially determine whether or not it was ence has been lent in favor of a fraudulent procured by fraud, has been affirmed by suc- claim. It was held that no applicable rule cessive Secretaries of State, assumed by Con- was so rigid as not to be sufficiently flexible gress in the passage of the act of June 18, to do justice, and that the extent and char1878, expressly declared by committees of acter of any obligation to individuals, grow. both houses of Congress, and substantially ing out of a treaty, an award, and the reheld to exist by the highest judicial tribunal ceipt of money thereon, were necessarily of this government." Senate Doc. Report subject to such modification as circumNo. 2705, pp. ix., xviii., 50th Cong. 2d Sess. stances might require. So long as the poReference should here be made to United litical branch of the government had not States ex rel. Boynton v. Blaine, 139 U. S. lost its control over the subject-matter by 306, 323-326, 35 L. ed. 183, 189, 190, 11 Sup. final action, the claimant was not in a posi Ct. Rep. 607, as announcing principles that tion, as between himself and his government, affect certain questions arising in the pres- to insist on the conclusiveness of the award ent 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

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 gov ernment 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 con

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clusion. 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 De cember 28, 1892, amending and enlarging the above act of June 18, 1878. 27 Stat. at L. 409, chap. 14.

dence may warrant, according to the princi ples of equity and justice, and to enforce the same by injunction or any proper final proc ess, 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 origi nal trial of said claim, and the said court I 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 prac tice 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.

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 Statement, and that the said La Abra Silver Minthat 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:

"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 procure

ing 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 enti. tled, in justice and equity, to receive out of said fund.

"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 inade by the "Sec. 5. That, during the pendency of said United States and Mexican mixed commis-suit and until the same is decided, it shall sion in respect to the claim of the said La not be lawful for the Secretary of State to Abra Silver Mining Company was obtained, make any further payments out of said fund, as to the whole sum included therein, or as on account of said award, to La Abra Silver to any part thereof, by fraud effectuated by Mining Company, or its legal representameans of false swearing or other false and tives, attorneys, or assigns; and in case it fraudulent practices on the part of the said shall be finally adjudged in said cause in La Abra Silver Mining Company, or its either the court of claims or in the Supreme agents, attorneys, or assigns; and, in case it Court of the United States that the award be so determined, to bar and foreclose all made by said mixed commission, so far as claim in law or equity on the part of said it relates to the claim of La Abra Silver La Abra Silver Mining Company, its legal Mining Company, or any definable and sev representatives or assigns, to the money, or erable part thereof, was not obtained any such part thereof, received from the Re- through fraud as aforesaid, then the Secpublic of Mexico for or on account of such retary of State shall proceed to distribute award; and any defendant to such suit who so much of the said award as shall be found cannot be found in the District of Columbia not so obtained through fraud, or the proshall be notified and required to appear in ceeds thereof remaining for distribution, if such suit by publication as the court may any, to the persons entitled thereto." 27 direct, in accordance with law, as applica- Stat. at L. 409, chap. 14. ble 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 deerees therein, as the evi

Pursuant to the provisions of that act the Attorney General brought the present suit in the court of claims. The defendants are the La Abra Company and numerous individuals who assert some interest in the

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award made in respect of its claim against Mexico. The relief asked by the United States is indicated by the following paragraph in the bill:

That the United States had not such an in

terest in the matters and things alleged in the bill as entitled it to maintain this suit or to have the relief asked;

That the government of Mexico was the party pecuniarily interested in this suit, and that, by failing to institute and prosecute suit against the alleged wrongdoers in the courts of the United States for the annulment of the award and the recovery of the moneys paid on account thereof, it had been guilty of laches and had forfeited all right to relief in equity; consequently, the United States was not entitled to demand such relief for the benefit of or in the interest of Mexico;

"Your orator further shows, that by reason of the premises a controversy has arisen between your orator and the defendants hereinbefore named, the said defendants claiming that it is the duty of your orator to pay over to them the sums by them, the said defendants, claimed respectively from the proceeds of said award now in the possession of your orator, and your orator claiming that it is the right and duty of your orator to have the facts relating to said claim and award inquired of by your honorable court, and if it shall be adjudged by That a mixed commission created and actyour honorable court that the said award ing under and by virtue of such a treaty as was obtained through fraud effectuated by that of July 4, 1868, between the United means of false swearing or other false and States and Mexico, was recognized by the fraudulent practices on the part of the said law of nations and by the Constitution and defendant La Abra Silver Mining Company, laws of the United States and was in fact or its agents, attorneys, or assigns, to re- and law a court of exclusive and final juristurn the proceeds of said award to the said diction, and its award could not be set aside, Republic of Mexico; that the said defendants reopened, or vacated by a municipal court of have made persistent demands upon the De- the United States, either in virtue of an act partment of State and upon the Congress of of Congress or otherwise, and that Congress your orator for the payment to them of said could not grant a new trial in respect of moneys, and that some of the said defendants matters so finally determined and concluded have brought suits in the courts of your ora- by international arbitration under such a tor to compel such payment, and that, un- treaty; but, on the contrary, such an award less restrained by the judgment and decree could, on the part of the United States, be of this honorable court, the said defendants set aside, vacated, or reopened only through will continue to harass and annoy your ora- its treaty-making power; and that the questor with such demands and suits. tion presented by the bill, whether the award And that the said defendants and each and should be reopened or not on the grounds alevery of them may, by the decree of this hon- leged, having been submitted to the treaty. orable court, be forever restrained and en-making power and by it decided in the neg joined from setting up any claim to any part of said award or of the moneys now, as aforesaid, in possession of your orator. And that the said award on the claim of the said defendant La Abra Silver Mining Company may, by the decree of this honorable court, be declared to have been wholly obtained by means of false swearing and other false and fraudulent practices on the part of said defendant company, its agents, attorneys, and assigns. And that your orator may have such other and further relief as the nature of your orator's case may require and as may be agreeable to equity and good conscience." The La Abra Company and other defendants demurred to the bill on the following grounds:

That by the Constitution and laws of the United States the subject-matter of this suit was within the final and exclusive control of the Executive Department of the government of the United States, and not within the jurisdiction of any judicial tribunal;

That the questions whether the award of the Commission was obtained by fraud and whether the money received under it and remaining undistributed by the Secretary of State should be returned by the President of the United States could not properly be determined by any municipal court of either of the sovereign parties to the treaty of 1868, but were questions of a diplomatic or political nature determinable only by the Executive Department of the government;

ative, was res judicata;

That it appeared on the face of the bill that the question whether the award in favor of the La Abra Company was obtained in whole or part by fraud effectuated by means of false swearing or other corrupt and fraudulent practices was substantially the same question that was tried by the commissioners, such fraud and fraudulent practices having been charged by the Mexican agent and commissioner at the trial; and that that question, on the disagreement of the two commissioners in respect of the integrity of the witnesses and the credibility and weight of the evidence for and against the claim of the company, was referred to the umpire for decision, and, having been decided by him, was res judicata and could not be re-examined or redetermined by this court;

That the act of Congress under which the suit was prosecuted was unconstitutional and inoperative on the further ground that it assumed to direct, control, and bind the courts in determining the questions submitted for final adjudication to receive evidence and apply legal principles that were erroneous and wholly inadmissible according to law as administered in the courts of the United States in like cases, and to prescribe to the court what weight and effect should be given to the evidence and how the court should reach the conclusion that the award was obtained in whole or in part through fraud;

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That inasmuch and because the questions | said company and its agents, and a decree presented by the bill were of a political and will be entered barring and foreclosing all diplomatic nature and not justiciable or fit claim in law and equity on the part of said and proper to be considered and finally de- company, or its agents, attorneys, and astermined by a municipal court, Congress signs, to the money received from the Repubcould not impose upon the court of claims, lic of Mexico for or on account of such award. or upon the Supreme Court of the United Having decided that the company was not States, or upon the judges thereof, the trial compelled to abandon its mines because of and determination of those questions; the acts of the people of Mexico, unrestrained by the Mexican government, and that it was not compelled to abandon the mines because of the unlawful interference of the Mexican authorities with the property and business of the company, it is not necessary to consider the question of the value of the property of the company at the time of the abandonment."

That the act of Congress in question was inoperative and void on the further ground that it was never approved by the President of the United States as required by law, the only alleged approval it ever received being on the 28th of December, a. D. 1892, when Congress was not in session, both houses of Congress having adjoined on the 22d of December, A. D. 1892, to the 4th of January, ▲. D. 1893; and,

That the bill did not state facts sufficient to constitute a cause of action or to authorize the granting of any relief.

Chief Justice Nott dissented in part from the judgment. He was of opinion that the first three items in the award of the umpire, above set forth, should stand, but that the fourth item was fraudulently exaggerated and should be reduced to $420.09, and the fifth, $100,000, rejected altogether as having been utterly overthrown by the evidence. 32 Ct. Cl. 521, 533.

*From the judgment of the court of claims the present appeal was prosecuted.

The demurrer to the bill, so far as it involved the jurisdiction of the court of claims and the charges of fraud, was overruled, the opinion of the court being delivered by Judge Weldon. 29 Ct. Cl. 432, 484. The question whether the act of December 28th, 1892, was so approved by the President as to become a In the light of this history of the claim of law was determined in favor of the United the La Abra Company we proceed to the conStates, upon the grounds stated in the opin-sideration of such of the principal questions ion of the court previously delivered by Judge Nott, now chief justice of that court, in United States v. Weil, 29 Ct. Cl. 523.

The case having been prepared on the merits, the court of claims upon final hearing found that the award made by the commission on the claim of the La Abra Company "was obtained as to the whole sum included therein by fraud effectuated by means of false swearing and other false and fraudulent practices on the part of said company and its agents;" and it was adjudged that all claims in law and equity on the part of the company, its legal representatives and assigns, be forever barred and foreclosed in re spect of the money received from the Republic of Mexico for or on account of such award. 32 Ct. Cl. 462, 520, 521.

presented in argument as are essential to the disposition of the case.

I. If, as insisted by the appellants, the above act of December 28, 1892, was not so approved by the President as to become under the Constitution a law, it would be unnecessary to consider any other question raised by the pleadings; for that act is the only basis of jurisdiction in the court of claims to render a judgment that would be conclusive between the parties and which could be reviewed by this court. We must therefore first consider whether that act is liable to the constitutional objection just stated.

The ground of this contention is that having met in regular session at the time appointed by law, the first Monday of DecemAn elaborate opinion of the court of claims, ber, 1892, and having on the 22d day of that delivered by Judge Weldon, states fully the month (two days after the presentation of grounds on which the decree was based. the bill to the President) by the joint action That opinion concludes: "The court, upon of the two Houses taken a recess to a named an examination of all the testimony, exclud-day, January 4, 1893, Congress was not ing such portions of it as in the opinion of the court are not competent, determines as a conclusion of fact that the La Abra Silver Mining Company did not abandon its mines in Mexico because of the interference of the people of Mexico and the public authorities of the Mexican government, or either, but on the contrary that it abandoned its mines because they were unproductive and for the want of money to operate and work the same, and that the award made by the United States and the Mexican mixed commission in respect to the claim of the said La Abra Silver Mining Company was obtained as to the whole sum included therein by fraud effectuated by means of false swearing and other fraudulent practices upon the part of 20 S. C.-12.

actually sitting when the President, on the 28th day of December, 1892, by signing it, formally approved the act in question. The proposition, plainly stated, is that a bill passed by Congress and duly presented to the President does not become a law if his approval be given on a day when Congress is in recess. This implies that the constitutional power of the President to approve a bill so as to make it a law is absolutely suspended while Congress is in recess for a fixed time. It would follow from this that if both Houses of Congress by their joint or separate action were in recess from some Friday until the succeeding Monday, the President could not exercise that power on the intervening Satur day. Indeed, according to the argument of

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