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ance undertook to make distribution and payment pro rata to the claimants in whose favor awards had been made."

The petition then stated the sum total of the awards; the balance to be paid over by Mexico to the United States; the payments made by Mexico; the final instalment still remaining due; and an amount remaining undistributed in the State Department paid by Mexico on awards as to the claims of Benjamin Weil and La Abra Silver Mining Company. It was further alleged that the commissioners failed to agree as to the claim of Benjamin Weil, which was referred to an umpire, who heard the case on the proofs submitted and made an award in favor of Weil, which, "together with all the other findings and proceedings of the commission," was duly reported to and filed in the State Department, and thereupon the said award became final and conclusive under the clause of the treaty herein before recited. Petitioner further averred that on November 5, 1875, a part of the award made in favor of Weil was assigned to him by an instrument in writing, which, soon after its execution, was filed in the State Department, where it still remained; and that the Secretary of State paid to petitioner, on August 16, 1880, and March 8, 1881, certain sums applicable to the award in favor of Weil, leaving a balance due.

The petition then showed that on the 13th of July, 1882, on a complaint by Mexico that the award in favor of Weil was made on a false and fraudulent claim, a convention was negotiated and signed with that government, which recited that the President, after considering the circumstances of the case, and in view of the statute of June 18, 1878, being of opinion that the cases of Weil and La Abra Company should be reopened and retried, had concluded the convention with the President of Mexico for that purpose, which convention was, on the 26th day of July, 1882, submitted by the President in a special message to the Senate of the United States for its constitutional assent and concurrence; and that, while it was pending in the Senate, one Key, an assignee of a portion of the award in favor of Weil, instituted a proceeding in the Supreme Court of the District of Columbia for a writ of man

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damus on the Secretary of State, and a peremptory writ was granted, but the Secretary of State appealed to the Supreme Court of the United States, which pronounced its decision January 7, 1884, reversing the judgment of the court below and denying the mandamus, "as will appear by reference to the case of Frelinghuysen, Secretary of State, v. Key, reported vol. 110 U. S. Reports, page 63."

The petitioner then gave his view of the decision of the Supreme Court of the United States, and said that the Senate of the United States had notice of it and of the grounds and reasoning on which the court reached its conclusions, but after due consideration and full deliberation, on April 21, 1886, "refused to assent to and concur in the said convention of July 13, 1882, less than two-thirds of the Senators present voting in favor thereof, and a quorum of the Senators being present;" and he contended that this made it certain that the Senate "held that there was no sufficient ground, reason or cause for excepting the said award made in favor of the said Weil from the operation of the finality clause of the treaty of July 4th, 1868. or for repealing or rendering that clause inoperative as to the said award." But petitioner said that nevertheless the Secretary of State refused to make distribution and payment to the said Weil and his representatives or assigns "of their distributive shares of the moneys now lying in the State Department, and due to him or them as aforesaid;" and on November 20, 1889, in response to a written demand therefor, replied "that for causes deemed lawful and sufficient" he was unable to comply therewith. Finally, petitioner averred that the moneys paid into the Department of State in respect of the Weil award were so paid in trust to distribute and pay the same to Weil or his representatives or assigns in satisfaction of his original claim against Mexico.

Petitioner thereupon prayed for process and that a peremptory writ of mandamus be granted upon hearing.

A rule to show cause having been entered, the Secretary of State answered, stating, among other things, the amount that would be paid to relator "if the President of the United States, in whose control is the said undistributed balance, should de

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termine that it is not inconsistent with the public interests to pay the same, or so much thereof as would be ratably payable to the said Boynton," but saying, "that the President of the United States has forbidden the payment of any part of the said net balance on the ground hereinafter stated, and that for that reason no scheme of distribution of the said net balance has been made." The answer then alleged that the money paid by Mexico became, upon receipt, the money of the United States, and not in any way subject to the demand or control of the original claimants, who were not recognized by the said commission, the only parties to which, and who appeared before the commission, being the governments of the United States and the Republic of Mexico, each represented by one person, in virtue of Article II of the treaty.

It was further stated that the allegation of the petition that the United States was under some obligation "to make distribution and payment pro rata to the claimants in whose favor awards had been made" was not founded on any provision of the said treaty. And further, that the United States was "invested with the entire control of said claims to enable it to discharge any international duty that may attach thereto or to any part thereof, and that if the President of the United States has probable cause to think that good faith towards the Republic of Mexico and a proper regard for the honor of the United States require that any part of the money so paid by the Republic of Mexico should be withheld from distribution, this respondent is advised that it is the duty of the President to withhold payment of the same until a proper investigation can be had; and this respondent, answering, saith, that so it is that grave charges and representations impeaching the integrity of the evidence on which the award in the case of said Weil was made have been brought to the notice of the Government of the United States in a way to command its earnest attention, and that it is the desire of the President to have the said charges and representations investigated so soon as the Congress shall have provided the means for doing so."

The answer also averred that a bill had been reported to the Senate on June 20, 1888, "to provide for the desired in

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vestigation by investing the Supreme Court of the District of Columbia with jurisdiction over the subject; " that "while the said charges and representations are pending the President of the United States hath concluded that payment of the money now demanded by the relator should be withheld;" and that the course thus taken by the President was in harmony with section 5 of the act of June 18, 1878.

The inference set up in the petition as deducible from the rejection by the Senate of the convention of July 13, 1882, was denied, and the contrary inference suggested, in view of the bill reported in the Senate, that "the refusal of the Senate to ratify the said convention was the result of a desire that the proposed investigation into the said charges and representations should be made by a tribunal deriving jurisdiction over the subject from a law of the United States."

It was then averred that the money awarded was not held by respondent impressed with a trust for the parties claiming to be entitled to the same, but as the agent of the President, whose control over it was complete, and who could at any time withdraw it from the control of the respondent; that to hold him accountable as a trustee might be to subject him to personal liability for the money; and that it would cause an embarrassing conflict to adjudge him responsible to private parties for a fund which it might be the duty of the United States to return to the Republic of Mexico, as decided in the case of Frelinghuysen v. Key, referred to by relator. The answer finally alleged that the petition related to a matter "which falls exclusively within the powers and competency of the President of the United States and this respondent as subordinate to him and subject to his direction and control, and which doth in nowise fall within the jurisdiction and competency of the judicial department of the government of the United States; and that it would involve an interference. by the said judicial department with a matter which is exclusively committed by the Constitution to its coördinate, the executive department, for this honorable court to take cognizance of the matter of the relator's petition."

The cause having been heard, the mandamus was refused

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and the petition dismissed, whereupon a writ of error was allowed to this court.

The following may be taken as a sufficiently comprehensive statement of the matters upon which the judgment proceeded. The time for decision fixed by the convention of July 4, 1868, was from time to time extended, finally until November 20, 1876, and payment of the first instalment to the government in favor of whose citizens the greater amount might have been awarded, was provided to be made on or before January 31, 1877. (19 Stat. 642.)

On the 19th of January, 1877, Mr. Secretary Fish invited the attention of Congress to the necessity of making provision for carrying the awards into effect, and pointed out that "an appropriation by Congress will be necessary for the payment of the amount of the awards against the United States, which sum, by the terms of the treaty, is to be deducted from the awards against Mexico and from the amount to be paid by Mexico. Provisions should also be made for the distribution among the several parties entitled to the money as it may be received, and also for the reimbursement to the United States of the amount paid by the United States toward the joint expenses of the commission, and which, by the terms of the treaty, is to be deducted from the awards." A bill to carry out the Secretary's recommendation passed the House during the Forty-fourth Congress, and was favorably reported in the Senate, but was recommitted to enable the committee to consider the complaints made by the Mexican government as to the manner in which the awards in favor of La Abra Company and Weil were procured. The Mexican government had, in the meantime, notified the Secretary of State of the existence of evidence, not within its possession before the awards were rendered, which, it was claimed, would establish the fact that the awards in the cases of La Abra Company and Benjamin Weil were procured by fraudulent imposition upon the commission and upon the government of the United States on the part of the claimants. The finality of the awards as between the two governments was not denied by Mexico, and the Mexican minister announced the intention