Having under your instructions thus ascertained the attitude of the
Mexican Government toward the claim in question and conveyed said
information to you, in the absence of further instructions I shall
consider my duty in this case performed.
[Inclosure]
Mr. Mariscal to
Mr. Clayton.
Department of Foreign Affairs,
Mexico, October 4, 1897.
Mr. Minister: The necessity of examining
the voluminous data collected in this department in relation to the
claim presented by the Catholic archbishop and bishops of Upper
California in 1871 before the joint commission created by the
convention of July 4, 1868, has been the cause of the delay in
replying to the note of September 1, ultimo, in which your
excellency calls my attention to said matter and asks me what the
Mexican Government proposes to do regarding the payment of interest
on the so-called “Pious fund of the Californias,” subsequent to the
interest paid by virtue of the decision pronounced by the said joint
commission.
A study of the antecedents has made me form the opinion that the
Catholic Church of Upper California has no right to demand interest
from the Mexican Government on the said fund subsequent to the
interest that formed the subject of this [Page 743] claim in the year 1871; that is, the interest
computed from February 2, 1848, to February 1, 1869.
The convention of July 4 excluded from the consideration of the joint
commission which it created the claims which originated before the
date on which it was signed, as well as claims that may not have
been presented to the said commission. Neither was it authorized to
decide more than the claims for injuries caused by authorities of
the Mexican Republic during the period from the day on which the
convention was signed to the date on which the exchange of
ratifications was effected.
Therefore claims arising or riled against either of the contracting
Governments after the 1st of February, 1869, were not the object of
said convention; neither could they, therefore, nor in a general way
could the questions which, not treating directly upon injuries
indemnifiable in money, refer to points of fact or of right such as
those set forth in the note which I answer, and which your
excellency considers as decided in the decision pronounced by the
arbitrator on the 11th of November, 1875, be a matter for the
arbitration provided in said convention.
Said decision condemned the Mexican Republic to pay to the Catholic
Church of Upper California a determined sum of money, which amounted
to the interest calculated on one-half of the so-called “Pious fund
of the Californias,” corresponding to the twenty-one years included
between the dates of the signature and exchangea of ratifications of the said
convention. The Government of Mexico paid punctually the sum
indicated, being free forever from all responsibility with respect
to the claim treated as finally settled and inadmissible in the
future, according to the express language at the end of Article V of
said treaty.
From what has been stated it follows that the debt imposed upon the
Mexican Republic by the arbitral decision of November 11, 1875, or
the res ad judicata, as your excellency designates it, was
extinguished; and that a new claim for interest, that the Catholic
Church of Upper California might attempt to make valid against the
Mexican Government, supposing it to be due after February 2, 1869,
is not included among the claims for the settlement of which the
convention of July 4, 1868, was celebrated; that it was not, nor
could it be, within the jurisdiction of the joint commission created
by said treaty, nor can the decision pronounced November 11, 1875,
restricted to the claim that it decided, be invoked as a sentence
rendered under authority of res adjudicata, in order to decide a
subsequent demand regarding new interest arising from the so-called
“Pious fund of the Californias.”
If it is now alleged that the reasons on which said decision was
founded justify an analogous claim, though subsequent to the one
decided by it, such argument lacks the force attributed to it. It is
well understood that only the conclusion of a sentence or decision
passes into authority of res adjudicata. The considerations that
served it as premises are subject to controversy in the future, are
perfectly impugnable, and therefore do not constitute the legal
truth.
Now, the propositions laid down by the arbitrator in order to deduce
from them that Mexico owed to the Catholic Church of Upper
California twenty-one annuities of interest, are not exact in the
historical conception nor reasonable in the judicial. These defects
would have been sufficient to deny to the decision, even in the case
decided, the authority of res adjudicata, according to jurisprudence
universally admitted and especially observed by the Government of
the United States, in its high sense of justice, regarding the
celebrated claims of “Weil” and “La Abra” decided also against
Mexico by the said commission.
The Mexican Government will demonstrate fully the falsity and
injustice of the foundations of the decision pronounced in favor of
said church, whenever it shall present before a competent tribunal
of this country another demand for interest similar to the one
presented in the year 1871. At the present time this Government
would have to consider diplomatic intervention as premature; which,
as is well known, only occurs when the legal recourses before the
judicial authority being exhausted, the interested party complains
of notorious injustice and appeals to his Government for relief
against the injury alleged.
I avail of this opportunity to renew to your excellency the
assurances of my most distinguished consideration.
