McCALMONT, GREAVES & COMPANY.

The claimants ordered goods to be shipped from England for the Mexican market at Vera Cruz; but war having arisen between the United States and Mexico, the goods were shipped to Havana, and remained there until after the conquest of Vera Cruz by the American forces, and the opening of that port to foreign trade by General Worth, who was placed in command of the place, and who established a temporary tariff of rates on importations until such time as he should receive instructions from Washington. On the establishment of this tariff, the claimants ordered their goods to be forwarded, but they did not arrive until a new tariff had been established by the department at Washington, considerably higher than that of General Worth.

This tariff, in some particulars, operated seriously to the prejudice of the claimants, and a portion of their goods was placed in the public store-house till application could be made at Washington for instructions in regard to them. On such application, the tariff was modified, but was directed to be applied prospectively only, and the claimants paid the full duty. The tariff, in the matter complained of, was higher than the Mexican tariff, but was, in other respects, lower. The claim was allowed by the umpire for the amount paid beyond the tariff last established.

The claimants are British merchants, carrying on business at Vera Cruz. They ordered shipments of goods to Mexico from their correspondents in England. On account of the blockade of the Mexican ports by the United States, these goods were first sent to Havana.

After the capture of Vera Cruz by the United States forces, General Worth established a temporary tariff, bearing date March 31, 1847, establishing the same tariff on goods received into Mexican ports, as on imports into the United States, with an additional charge of ten per cent. ad valorem, until such time as instructions should be received from Washington. On the opening of the ports, and establishment of this tariff, the claimants ordered their goods from Havana. Before their arrival, however, a new tariff was received from Washington, by which the duties were increased.

On the arrival of the goods, complaint was made of the increase, and the goods remained on deposit until further instructions could be

received from Washington. On the 10th of June, instructions were received, making modifications, in some respects, as to importations, to take effect subsequent to that date.

Applications were made from other importers, for reduction, to Mr. Marcy, Secretary of State, but were rejected, except in conformity to the above order, as appears from Mr. Marcy's despatch to Mr. Crampton, of the 8th of January, 1848.

The duties on cotton goods imported were, with the exception of a particular description of goods, far lower than the former Mexican tariff. On the woolen goods a higher tariff was imposed. HANNEN, agent and counsel for Great Britain.

THOMAS, agent and counsel for the United States.

UPHAM, United States Commissioner:

This case presents the common complaint of hardship that always arises whenever an advance of tariff is made contrary to the expectations of the importer.

It involves two difficulties for our consideration. In the first place, this commission has no power to alter and control the clear and explicit effect of a tariff established by either government, in order to grant lighter terms than such law had established.

It is an exercise of legislative power not confided to us, or of a dispensing power which is equally unauthorized.

In the second place, the application now addressed to our discretion has been already addressed to the government at Washington, and has been denied, under an immediate knowledge at the time of all the circumstances of the case. A modification of the tariff was made as requested in reference to woolens and one description of cotton goods, but was directed to take effect prospectively, for the reason that the duties, under the prior tariff, had been paid on various importations, and it was not supposed the case was such as to require a retroactive effect.

This decision was afterwards adhered to on the application of some German merchants; notice of which was communicated to the British minister, by letter of Mr. Marcy, Secretary of State, on the 8th of January, 1848.

Were the case in our control, the same reasons that operated on the department, in making this decision, should operate on us at this time, but there is no right of appeal to us from their decision. We may give a construction in matters of strict law to an established tariff dif ferent from that given by the officers of the government; but their decision on matters confided by law to their discretion is final. We cannot go behind the tariff to overrule it.

Some confusion exists in the statements as to the tariff complained of. My colleague, in speaking of the application of the German merchants, says that the tariff of the 30th of March, though higher than General Worth's tariff, was "much lower than the Mexican tariff." In another portion of his opinion, speaking of the same tariff, in reference to this claim, he says "the duties were much higher than the Mexican tariff." These diversities are accounted for by the fact

that the remarks apply to different portions of the tariff. On cotton goods, with the exception of a particular article of that description, the duties were much lower, while, on woolens, they were much higher than under the Mexican tariff.

The importation of the claimants in this case consisted both of cotton and woolen goods, in large quantities of each. My impression is that, on the whole importation, they were gainers by the change of governments, at least that their loss was of but small amount. If so, it would obviate any appeal on account of the general hardship complained of, and the case resolves itself into a mere question as to what extent the claimants should profit by the American occupation of Mexico. It is certain that the damage is much less than would appear from the operation of the tariff on one class of goods alone.

The views of my colleague that "if we find the claim to be a just one, and deserving of relief, we are bound, by the terms of the convention, to grant it, wholly irrespective of the question whether any officer of either government could, or could not do so, under any particular statute," and that we can grant relief "in any case where Congress could have given it, if on examination it was found to be a case in which the parties were equitably entitled to it," I cannot consent to. For the reasons given, I am of opinion no proper ground is presented for the exercise of our authority within the powers assigned to us.

HORNBY, British Commissioner:

This claim is in the nature of an appeal to the sense of equity of the United States government; and it being, as I conceive, the intention of the contracting parties to the convention of 1853, under which we act, that the commissioners should decide upon all claims duly submitted to them according to justice and equity, I am of opinion that it is properly brought under our notice.

From the investigation which has already taken place into the circumstances, and from the correspondence between the two governments, it appears that the claimants are British merchants, carrying on business at Vera Cruz. In the early part of 1847 they, in the ordinary course of their business, prepared extensive shipments of goods from England, nearly the whole of which were suited only for the markets of Mexico. In consequence of the blockade of the Mexican ports, which was declared by the United States on the 20th of May, 1847, the claimants' correspondents despatched the vessels conveying the goods to Havana, there to await the orders of the owners.* The claimants directed them to remain there until the ports of Mexico should be opened.

On the capture of Vera Cruz by the United States forces, General Worth (who was in command of the troops occupying that place) published, on the 5th of April, a tariff bearing date "Vera Cruz, the 31st March, 1847," by which the port was opened to foreign commerce, and the same duties were imposed as in the United States, with 108 per cent., ad valorem, additional.

On

This tariff appearing objectionable in several particulars, the British and foreign merchants, resident at Vera Cruz, on the 6th of April memorialized General Worth on the subject, and he, in consequence of their remonstrances, made some modifications in the tariff. the faith of this tariff thus modified, the claimants transmitted orders to their correspondents in Havana to send on their goods to Vera Cruz, and they accordingly arrived in the "Susan" and "George W. Randall," on the 20th and 27th of May.

In the interval between the sending of the directions by the claimants to their correspondents to forward the goods and their arrival, namely,

* Arrived at Havana during the months of July and August, 1846,