Mr. Clayton to Mr. Sherman.

No. 152.]

Sir: Referring to your Nos. 57, 81, and 114, of July 17, August 12, and September 18, 1897, respectively, and to my No. 96, of September 1, 1897, concerning the claim of the Roman Catholic Church of California growing out of the so-called “Pious fund of the Californias,” I have the honor to report that I am in receipt of a note from Minister Mariscal, dated October 4, 1897, copy and translation inclosed, replying to my note of September 1, 1897, in which the minister takes the position that the proceedings of the joint commission created by the convention of July 4, 1868, can have no bearing or force upon any claim which the Catholic Church of California may set up for interest falling due since February 1, 1869. He seems to indicate that the church should exhaust judicial remedies in Mexico before such a claim could properly become the subject of diplomatic intervention, and states, in express terms, “that at the present time this (his) Government will have to consider diplomatic intervention as premature.”

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.

I have the honor to be, sir, your obedient servant,

Powell Clayton

Mr. Mariscal to Mr. Clayton.

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.

Igno. Mariscal.
  1. Note.—It is supposed that Mr. Mariscal intended to refer to the period between the signing of the treaty of Guadalupe-Hidalgo (February 2, 1848) and exchange of ratifications of the convention of July 4, 1868 (February 1, 1869).