Mr. Sherman to Mr. Clayton.

No. 331.]

Sir: Referring to your Nos. 96 of September 1 and 152 of October 21, 1897, in relation to the “Pious Fund of the Californias,” I now inclose a copy of a letter from Mr. John T. Doyle, dated San Francisco, 10th December last, presenting arguments and observations favorable to his contention, in response to the statements of Mr. Mariscal’s note of October 4, 1897, that the proceedings of the Joint Commission organized pursuant to 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. Mr. Doyle’s presentation of his client’s case is commendable for its clearness and logical soundness.

You report that Mr. Mariscal remands the claimants to their judicial remedies before seeking diplomatic intervention, which, for the present at least, he regards as premature. Still, it is believed Mr. Mariscal will accept in the spirit in which they are offered the views expressed by Mr. Doyle in his memorandum, copy of which you will take early opportunity to bring to the former’s attention informally.

Respectfully, yours,

John Sherman.

Observations on the reply of His Excellency Don Ignacio Mariscal, minister of foreign affairs of the Mexican Republic, to the note of Hon. Powell Clayton, United States minister at Mexico, of September 1, 1897, relating to the claim of the Catholic Church of California against the Mexican Republic for arrears of interest on the Pious Fund of the Californias.

It will be seen that there is an obscurity in the second paragraph of the Mexican minister’s note to Mr. Clayton, where he says that the convention of July 4 (1868) excluded claims which originated before the date on which it was signed, as well as claims not presented to said Commission, and adds: “Nor was it authorized to decide more than the claims for injuries caused, etc., during the period from the day on which the convention was signed to the date on which the exchange of the ratifications was effected.” This I ascribe to some error in transcription, for I discover also an obvious omission of words in the fourth paragraph of the document. In the later place Señor Mariscal probably wrote “the twenty-one years included between the dates of the signature” of the treaty of Guadalupe Hidalgo and the “exchange of the ratifications of said convention” (of 1868), and the words above underlined have been casually omitted in transcribing.

Notwithstanding the obscurity created by these clerical misprisions (which I note, not for the purpose of criticism, but that I would not be supposed to omit due attention to any portion of his excellency’s communication), I believe that I do no injustice to his argument in considering the substance of it to be contained in the fifth and sixth paragraphs (pp. 2 and 3 of his letter), viz, that—

“The debt or res adjudicata was extinguished” by the payment “of the sum awarded, and the claim of the church against the Mexican Government for install [Page 748] merits coming 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 the authority of res adjudicata, in order to decide a subsequent demand regarding the new interest arising from the so-called Pious Fund of the Californias.”

And again,* * * that—

“If it is now alleged that the reasons on which the 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 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.”

These suggestions of Señor Mariscal proceed upon a misapprehension of the scope claimed for the doctrine of res adjudicata invoked by Mr. Powell Clayton in his communication to which the Mexican secretary replies. That doctrine briefly expressed in the civil-law maxim—” Res adjudicata pro veritate occipitur”—has been declared by eminent jurists to be a necessary concept of every jural society, and is accepted as axiomatic in every system of law which has ever prevailed in any civilized society. It has been so often invoked, defined, sustained, and commented upon by the highest judicial tribunals of England and America, and expressed in the language of the most eminent jurists of the world, that it would be presumptuous in me to state it in language of my own. I shall therefore only note what we claim to have been established as res adjudicata by the decision of the Mixed Commission of 1868, and, in support of the claim that such determination is conclusive on the points so noted, quote the language of some of the eminent men, judges, and text writers to whom I have alluded.

The claim of the Church of California submitted to and passed on by the Mixed Commission of 1868 was briefly this: That Mexico was then indebted to it, ex contractu, for twenty-one successive installments of interest on its share or proportion of the Pious Fund of the Californias, promised to be paid by the decree of October 24, 1842, which incorporated the properties of the said fund into the public treasury of the nation, ordered them sold for the capital represented by their income, capitalized at 6 per cent per annum, and promised thereafter to pay interest thereon at the rate named. Such was the claim put forward in our memorial, and in its support we submitted simultaneously a brief history of the Pious Fund, from its inception of 1697 down to its absorption into the public treasury by the decree of October 24, 1842. This brief history was compiled from authentic contemporary sources and from published laws and public documents of the Mexican Government. No denial of its truth was ever attempted; it was, in fact, so thoroughly supported by citations of contemporary Spanish and Mexican history and public documents of the highest authority as to be unimpugnable. Notwithstanding the absence of any formal pleading on the part of Mexico, we assumed that the whole claim was to be deemed denied by the defendant, as by a common-law plea of the general issue, and we submitted plenary proofs in support of it. The tribunal after full argument and deliberation decided in favor of the claimants, and in doing so had necessarily to determine the following questions, each one of which was necessarily involved in the case and without a determination of which in our favor we could not have prevailed in the controversy, viz:

I. Did the Mexican Republic take the Pious Fund into the public treasury, and was that taking accompanied by the promise to pay interest on the amount of its proceeds, as alleged by us?

[This question the tribunal resolved affirmatively; the response to it was found in the decree of October 24, 1842, published in the official compilation of Mexican laws and decrees made by B. J. Arrillaga.]

II. What was the amount of the proceeds so taken into the public treasury pursuant to the decree in question?

[To this the Mixed Commission answered as shown in the opinion of Mr. Commissioner Wadsworth, concurred in by the umpire. It was $1,436,033.]

III. In what proportion should the interest on this capital at 6 per cent be divided between Upper and Lower California?

[On this question the tribunal, notwithstanding the great difference in our favor between them in area, population, and importance, determined that an equal division was just. The computation of the interest at the rate promised, its division into equal moieties, and the multiplication of the result by the number of years covered by the adjudication—mere mechanical processes—resulted in the sum of $904,700.79, which was the amount of the award.]

[Page 749]

IV. Were the archbishop of San Francisco and the bishop of Monterey (both being corporations, authorized by law to hold and possess the property of the church of California) the proper representatives of the Catholic Church of California in making the demand?

[This question, too, the Commission resolved affirmatively.]

In consequence, and only in consequence, of the determination of these questions in the manner above indicated, and as the logical conclusion from them, the tribunal pronounced its judgment that the Mexican Republic should pay to the prelates named the sum of $904,700.79.

It is now claimed, as I understand, by Señor Mariscal, that while it is true that this adjudication became conclusive evidence that Mexico was, at the time of its rendition, indebted to the church in the amount of money awarded, it does not prove any one of the constituent facts from which alone that conclusion of indebtedness flowed, and that the taking of the Pious Fund into the treasury, its amount, the promise to pay interest on it, etc., are all open to controversy between the parties to-day just as they were before the adjudication was pronounced. In this contention the honorable secretary has unquestionably fallen into a serious error.

The principle of res adjudicata renders the adjudication in question conclusive evidence in any future contest, between the same parties (or between parties deriving under them), not only of the ultimate conclusion of indebtedness existing at that time, but of each of the constituent facts from which that conclusion resulted. In fact, it is apparent, on the least reflection, that such is the necessary logical result of its conclusiveness on the question of indebtedness. For indebtedness is not a primary fact, but is necessarily the result of other and antecedent facts. A man is indebted for money borrowed. Why? Only because he borrowed the money. The tribunal which adjudges him indebted must, of necessity, determine the cause of such indebtedness; i. e., the act of borrowing, and the amount borrowed; so that what decides the indebtedness, which is the consequence, necessarily determines also the fact of borrowing and the amount of the loan which constitutes the cause. Doubtless, as Señor Mariscal observes (p. 5) the claim of the church for installments maturing after October 24, 1869, “was not included among the claims for the settlement of which the convention of July 4, 1868, was celebrated;” it could not have been, for it did not then exist so as to be capable of presentation. But the facts on which it arises and depends did exist, and they were presented for judicial ascertainment, in the case then considered. They were necessarily involved in the determination of the claim that was presented, which could not have been decided without determining them one way of the other; and therefore their determination, once made, being a judicial determination of them, by a competent tribunal, is conclusive on both parties forever thereafter.

Mr. Clayton, then, did not claim that the Commission of 1868 decided that there was, in 1871, interest due and unpaid by Mexico accruing during the years between 1869 and 1897, for that precise question could not have been before the Commission. His claim was, and ours is, that the Commission referred to did ascertain and decide:

That Mexico in 1842 incorporated the Pious Fund into the public treasury, under a promise to pay interest on its amount at 6 per cent per annum, as expressed in the terms of the decree of October 24 of that year.
That the moiety of such annual interest corresponding to the share of Upper California amounted to $43,080.99 per annum (being one-half of 6 per cent on $1,436,033, the ascertained capital), and that at that time twenty-one annual installments remained unpaid. From these ascertained facts it proceeded to deduce its judgment, which was a matter of simple arithmetical computation. Inasmuch as these constituent facts could not possibly be true in 1871 without being true at all times thereafter, Mr. Clayton rightly claimed that a judicial decision which established them as true then necessarily determined them so forever. This is the very essence of the doctrine of res adjudicata, and is what Mr. Powell Clayton must be understood to claim in his note to which Señor Mariscal replies.

His claim, so understood, is supported by the authority of all text writers and numerous adjudged cases on the subject.

“The rule,” says Mr. Burr W. Jones in his Essay on the Law of Evidence in Civil Cases, “is generally recognized among civilized nations that when a matter has been adjudicated and finally determined by a competent tribunal, the determination is conclusive between the parties and privies. Interest Reipublicse ut finis sit litium.” And Greenleaf, in his Treatise on the Law of Evidence (which I cite in preference to other works on the subject, because of its philosophic rather than technical character), says (Lewis’s edition):

Section 522. “We proceed in the next place to consider the admissibility and effect of records as instruments of evidence. The rules of law upon this subject are founded upon these evident principles and axioms; that it is for the interest of the community [Page 750] that a limit should be prescribed for litigation and that the same cause of action ought not to be brought twice to a final determination. Justice requires that every cause be once fairly and impartially tried; out the public tranquillity demands that having been once so tried, all litigation of that question and between these parties should be closed forever.”

So Wells on res adjudicata, page 4, says:

Section 5. “The fundamental principle of the rule of res adjudicata, etc., is plainly that the decision of a court of competent jurisdiction is and ought to be a final and conclusive settlement of the questions involved in any particular controversy, as to the parties concerned therein, and as to any title claimed through or under those parties; so that if a fact has once been directly tried and determined by such court, the same parties can not properly be allowed again to contest the same matters in that court or any other; and also that a judgment on such questions or facts in legal form is perfect evidence of its own validity. And more especially if the court had peculiar and exclusive jurisdiction relative to such matters, its judgment should be binding upon the judgment of any other court, acting in the same matter; always provided that it has acted therein within the proper limits of its jurisdiction.”

And at page 203 he continues:

  • Section 233. “As to installments, the rule has already been stated to be that where there are two or more promissory notes (or bonds) executed as a part of the same transaction, so that what affects one must affect the others in like manner, an adjudication upon one will determine that upon the other. And this applies to defenses,” etc.
  • Section 234. “If a contract provides for payment by installments due at different times, the installments may of course be successively sued on as they become payable,” etc.

In Robinson’s Practice, Volume VII, at page 165, we read, applicable exactly to the present case, “Sometimes there may be from one act of the defendant successive or different causes of action, and for each of these causes a separate suit, as in 22 Car. II, 30, or Geo. III, 31; 29 Car. II, 30 or 55.

“A former judgment for the plaintiff in one of a series of actions for money due by installments, or other successive causes of action, may be evidence (and conclusive so far as it goes) of the rights of the parties in another of a series of suits on the principle that a judgment is final as to all points and questions actually litigated and determined by it. (Love v. Waltz, 7 Cal., 250; Haskins v. Mayor of New York, 11 Hun. 436.) Therefore, where in an action on one of a series of notes, given for the purchase price of land, the defendant set up a defense going to the whole of the original cause of action, such as an indisclosed incumbrance on the estate, consequent rescission of the contract, etc., and it is adjudged against him, such judgment will estop him from setting up the same facts in defense of a subsequent suit on another of the notes.”

In harmony with this is the text of Black on Judgments and Res Adjudicata:

Section 500. “That the solemn deliberate sentence of the law pronounced by its appointed organs upon a disputed fact or state of facts should be regarded as a final and conclusive determination of the question litigated, and should forever set the controversy at rest, is a rule common to all civilized systems of jurisprudence; but it is more than a mere rule of law; it is more even than an important principle of public policy. It is not too much to say that this maxim is a fundamental concept in the organization of every jural society.” * * *

So Freeman on the Law of Judgments, etc., says:

Section 249. “There is no doubt that a judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties and their privies whenever the existence of that fact is again in issue between them, not only when the subject-matter is the same, but when the point comes incidentally in question in relation to a different matter in the same or in any other court, except on appeal, writ of error, or other proceeding provided for its revision. After judgment on the merits, the parties can not canvass the same question again in another action, although perhaps some objection or argument might have been urged upon the first trial which would have led to a different judgment.” * * *

“An adjudication is final and conclusive not only as to the matter actually determined, but as to every other matter which the parties might have litigated, and have had decided, as incident to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and defense.”

“To render a matter res adjudicata it is not essential that it should have been distinctly and specifically put in issue by the pleadings; it is sufficient that it be shown [Page 751] to have been tried and settled by the former suit. When a matter is once adjudicated it is conclusively determined as between the same parties and their privies.”

Black, cited supra in section 501, traces the doctrine through the Roman law, and in section 502, through the legal systems of modern Europe. Section 504 states the rules applicable to the question, the first of which is as follows: A point which was actually and directly in issue in a former suit, and was there judicially passed on and determined by a domestic court of competent jurisdiction can not be again drawn in question in any future action between the same parties, or their privies, whether the causes of action in the two suits be identical or different.”

I will not further multiply citations from text writers; they are unanimous on the question. It will be seen, too, that writers on the civil law lay down the same doctrine, and it is as expressed by Black in his treaties quoted above, a fundamental concept in the organization of every jural society, or society governed by laws.

(Vide Herman on the Law of Estoppel and Res Adjudicata, Vol. I, p. 85—92; Code Napoleon, sec. 1351; Domat’s Civil Law, Vol. I, sec. 2011; Escriche, Dictionario de legislacion y jurisprudencia, in verb. “Cosa juzgada.”)

The Supreme Court of the United States was quite recently called on to determine the application of the doctrine of res adjudicata in an action involving some 700,000 acres of valuable land. The magnitude of the interest involved, and the importance of the case led to the employment of counsel of great eminence, and the whole question was considered and discussed exhaustively. The decision is too recent to have found its way into the published reports, but the usual advance sheets are of course accessible to the officers of the State Department. The opinion reviews numerous adjudged cases, and concludes in entire harmony with the views I have endeavored to express above.

(Vide the Southern Pac. R. R. Co. v. The United States, decided October 18, 1897, pp. 17 to 24.)

It thus appears that Mr. Powell Clayton was entirely justified in claiming for the demand of the Catholic Church against the Mexican Republic the authority and conclusiveness of res adjudicata, not only as to the facts from which the claim arises, but also as to the amount thereof annually maturing.