No. 282.
Mr. Fish to Mr. Nelson.
Washington, February 11, 1873.
Sir: I transmit a copy of a note of yesterday, addressed to this Department by Sir Edward Thornton, Her Britannic Majesty’s envoy extraordinary and minister plenipotentiary accredited to this Government, requesting that you may be authorized to use your good offices toward preventing the exaction by the Mexican government of duties on goods imported by Messrs. Kelly, at Mazatlan, which duties had previously been paid to insurgents there. You will take that course accordingly. It is difficult to understand upon what ground of equity or public law such duties can be claimed. The obligation of obedience to a government at a particular place in a country may be regarded as suspended, at least, when its authority is usurped, and is due to the usurpers if they choose to exercise it. To require a repayment of duties in such cases is tantamount to the exaction of a penalty on the misfortune, if it may so be called, of remaining and carrying on business in a port where the authority of the government had been annulled. The pretension is analogous to that upon which vessels have been captured and condemned upon a charge of violating a blockade of a port set on foot by a proclamation only, without force to carry it into effect.
The principle, that duties once paid in a part of the territory of the country in the possession of an enemy are not liable again to be paid when the enemy is expelled or withdraws, was solemnly decided by the Supreme Court of the United States in the case of Rice, 4th Wheaton, page 246.
Since the close of the civil war in this country, suits have been brought against importers for duties on merchandise paid to insurgent authorities. [Page 655] Those suits, however, have been discontinued, that proceeding probably having been influenced by the judgment of the Supreme Court adverted to.
I am, &c.,