Mr. Clayton to Mr. Hay.

No. 848.]

Sir: Referring to Department instructions Nos. 263 and 369, of December 4, 1899, and June 7, 1900, respectively, and to embassy dispatches Nos. 532 and 703, of February 9 and June 14, 1900, respectively, and to previous correspondence relating to the claim growing out of the “Pious Fund of the Californias” against Mexico, I have the honor to transmit, herewith, a copy and translation of a note from Minister Mariscal dated the 28th ultimo, from which it appears that he questions the jurisdiction of the arbitral tribunal to pronounce the decision upon which the Roman Catholic Church of California bases its claim, and hence denies that said decision is res judicata. He also takes the position that the rule of res judicata only applies to the decisory part of the decision, and not to the antecedents upon which it is based, and in support of this contention quotes from the author of Principles of French Civil Law, who, in turn, refers to a decision of the French court of cassation bearing out that view. Mr. Mariscal maintains that the rule of res judicata can not properly be raised in this case, but only in a new suit, for which the courts of Mexico are open; and that until the claimants have exhausted this remedy and [Page 755] believe that they have been denied justice, their claim is not one for diplomatic intervention.

I do not venture to offer any arguments myself against Mr. Mariscal’s contentions, but await such further instruction from the Department as it may see fit to give.

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

Powell Clayton.

Mr. Mariscal to Mr. Clayton.

Mr. Ambassador: I have not replied to your excellency’s note of December 19 last until now for the reason which I had the honor to give your excellency verbally. The said note was accompanied by a copy of the instructions which the honorable Secretary of State sent to your excellency in regard to the claim presented called Pious Fund of the Californias. Previously, on May 3, 1898, your excellency sent me, by private letter, the observations of Mr. John A. Doyle, attorney of the claimants, and, on June 14 of the present year, during your excellency’s absence, Mr. Fenton R. McCreery, chargé d’affaires ad interim, wrote to me officially calling my attention to the matter and citing a writer on international arbitration. To all these papers, in favor of the claim of the California bishop, I will try to reply as briefly and precisely as I possibly can, with due regard for the clearness necessary.

Nevertheless, before examining the argument in favor of the claim, qualifying it as a proper matter for diplomatic correspondence, I ought to explain what has been and what is the position of the Mexican Government in this case. When it was argued before the Joint Commission established under the convention of July 4, 1868, the representatives of this Government held, in the first place, that said Commission was not competent to decide the claim presented by the bishop of California, and in the second, that the claim itself was not just, it having no solid foundation. This double conviction of the Mexican Government was not changed by the arguments of claimants and those upon which the umpire based his decision against Mexico. With all this, the Government submitted to the decision and paid the award made against it in full, notwithstanding that it might have found juridical reason for considering that the case was not precisely one of res judicata, as I propose to hereinafter demonstrate. Nor did it appeal to the high equity of your excellency’s Government as it did, without prejudice to the payment of the awards made, in the cases of La Abra and Benjamin Weil, because it could not prove, as it did in them, that there had been fraud in obtaining the decision, but error only in the decision made by the umpire of the Mixed Commission.

But now that the parties interested insist that the decision of a tribunal incompetent in the case and erroneous in its conclusions, after having been executed in the sum called for and to its full extent, by virtue of the convention of 1868, shall apply to a further amount of interest, said to have become due subsequently, and that the same be collected when there is neither decision nor convention which obliges us to pay it; now that this new claim, emanating from the first, it may be, but distinct from it, is presented, we exercise our right in refusing to admit it. And when we see that the Government of the United States of America unfortunately supports it, we can do no less than say that diplomatic intervention is not admissible in this new claim of the bishop of California. The reason for this may be inferred from the foregoing, and it is, as I will show, that it is not a question of the fulfillment of an international convention or the execution of a decision based upon the same, in which diplomatic intervention would be admissible, but of a new claim made after the international convention which might have been invoked had completely fulfilled its purposes, had ceased forever and had become a matter of history.

The new claim of the bishops in regard to further interests accrued after the date fixed by the convention for the cases to be decided by the Joint Commission, should be presented by them, or by their representatives, directly to the Mexican Government, and if the latter should refuse, as it will have to refuse, to acknowledge such indebtedness, they must then present their claim before the supreme court of justice of the union in this city, the sole tribunal which has jurisdiction of a case of this [Page 756] nature. But to commence at once by submitting it to diplomatic correspondence, there being no question of the fulfillment of a treaty and without even appealing to, much less exhausting, the ordinary recourses afforded by the laws of Mexico, appears to us to be inadmissible. Wherefore I will not discuss the intrinsic justness or unjustness of the claim, but will limit myself to demonstrate that it is not now a question of fulfilling a convention or an arbitral decision pronounced in conformity with it, the res judicata can not be invoked here; it is a question of a very different thing arising afterwards and therefore not included either in the decision or in the international obligation which established the arbitration limited to certain and determined reclamations.

It is a truth, admitted by all jurists, that a decision rendered by an incompetent judge, or by one who has exceeded his jurisdiction, does not carry the force of res judicata. From among them I will quote Wells on Res Judicata, because this is an authority quoted by Mr. Doyle, the attorney of the claimants: “Section 5. The fundamental principle of the rule of res judicata, etc., * * * is plainly that the decision of the court of competent jurisdiction is and ought to be a final and conclusive settlement of the question involved in any particular controversy * * * always provided that it has acted therein within the proper limits of its jurisdiction.”

Now, then, Sir Edward Thornton did not act within these limits, because the convention of July 4, 1868, which established the jurisdiction of the Joint Commission and, consequently, that of its umpire, prescribed in article 2: “It is agreed that no claim arising out of a transaction of a date prior to the 2d of February, 1848, shall be admissible under this convention,” and the claim of the bishops arose out of transactions which occurred at the latest in 1842, the year in which was issued the decree acknowledging the said indebtedness, or a very little later, when, the interest not having been paid, the parties in interest considered that the first damages of which they complain has been caused. The argument that these damages were continued during the years subsequent because of the continuance of the nonpayment of the interest is destroyed by the consideration that the treaty of Guadalupe Hidalgo, in article 14, exempts Mexico from all claims against the Government which might have originated prior to the date of the said treaty. It can not be understood, therefore, how a debt of the Mexican Government, dead to the United States, or to her citizens, for this reason (and others which I will mention presently) could have been born anew later, nor that an extinguished principal could have continued to earn interest for those who were to become citizens of your excellency’s country.

Another reason is the following: In 1848 and under the treaty of Guadalupe the Mexican church, held by the claimants to be the original owner of the Pious Fund, or a part of the said church, residing in Alta California, ceased to hold the life given to it by the laws of Mexico, the persons who composed it remaining subject to the jurisdiction of the United States of America, of which the legislation does not recognize personality in associations of that class if they have not been incorporated under certain conditions. Such incorporation was not had by the church of California until 1850; then a legal body was created under that name and with rights and duties distinct from those held by that portion of the Mexican church which had been established in it. Why, then, should this new corporation, exclusively a creation of the law, inherit the rights and shares of the Mexican church? To say, as the attorney of the claimants said, in discussing this matter, that the church existed of itself in 1848 and that it continued to exist for the State is to recognize the supremacy of the canon over the civil law, a thing which is not admitted either in California or in any other part of the United States. But in order that the new legal creation of your excellency’s country should have the right to appropriate that which belonged, as it is said, to the Mexican ecclesiastical body it was necessary that it should be a true continuation of the other or its heir for some legal reason of which I am not aware.

To prove that the Mexican church of California (which formed a part of the whole church of Mexico) did not cease to exist, but simply changed its nationality in 1849, it is alleged that, according to the treaty of Guadalupe, it elected to become of American nationality and so became because of not having declared, within one year after the treaty, that it desired to preserve its Mexican citizenship. But if it had no personality whatsoever under the new laws which governed its members, if it did not legally exist, how could it make such election? And if it had such personality, why was it incorporated in 1850?

These reflections and others in the matter would carry me very far if I wished to continue them, but such is not my intention, but simply, as I have already said, to say in brief terms that, it being easy to demonstrate the incompeteney of the joint commission and its umpire to decide a claim based on transactions prior to those which the convention admitted, and also upon supposed damages to parties who were not American citizens at the time when it might be imagined that they suffered them [Page 757] (in 1842), we were in our right to deny the authority of res judicata to the decision of the umpire who condemned Mexico to pay a heavy sum to the bishops of California. And, notwithstanding, because of other considerations of a higher nature, we did not act in that manner, but paid the sum in which, without jurisdiction and unjustly in every sense, we had been condemned.

To-day the situation is different, and it can not be considered even prima facie (as then) that it is a question of complying with a decision by virtue of an international agreement; the decision with which we agreed to comply has been executed and we make no claim against it. Now, in asking for the payment of new interest, upon which the umpire did not and could not make any decision, as he neither did nor could with respect to the principal, it is claimed that his decision constituted a perpetual charge of forty-three thousand and odd dollars upon the treasury of Mexico in favor of the bishop of California. In view of this exorbitant claim, we now begin by denying the authority of the decision pronounced without jurisdiction, as we can do, without legal impropriety or lack of dignity, the said decision having been complied with in that which at first sight, at least, appeared to be in conformity with the treaty.

What I have said above serves to explain the conduct of the Mexican Government, and to show that Sir Edward Thornton having exceeded his jurisdiction, his decision has not the force and consideration of res judicata, and not having it, the fulfillment of this decision can not be discussed, as out of courtesy we complied with it before in that which it clearly provided. Neither before, and much less now, can it be said that it is a question of carrying out the convention to which the decision should be subject, in which case diplomatic intervention might be admitted.

Other reasons besides the incompetency of jurisdiction exist to prove that the present claim of the bishops is not the simple fulfillment of the res judicata, and this leads me finally to examine the arguments, first, that of the Department of State, and next, that of Mr. John A. Doyle. The honorable chief of said Department, in his instructions approving your excellency’s course in supporting the claim, expresses himself as follows: “By the highest authorities, as well as upon the very reason of the rule, the effect of a judgment extends not merely to its final and decisive sentence, but to every point at issue between the parties to the suit, and which must necessarily have been decided.” In support of this he quotes a decision of Lord Chief Justice Kenyon, of England, which, in order to avoid repetition, I will consider later.

I have to thank Mr. John A. Doyle for the courtesy and good faith with which he recognizes the fact that in two passages of my note to your excellency of October 4, 1897, words were omitted by the copyist. Such was the fact, and there was even some serious confusion of the wording, for which cause, in the passage where it says that the convention gave the Joint Commission power to decide only “claims for damages caused, etc., during the period included between the day on which the convention was signed (when it ought to have said the treaty of Guadalupe) and the day on which the exchange of ratifications was made,” when it ought to have said “of the ratification of the convention signed in 1868.” It is so expressed in the same note at the end of the preceding paragraph. In the paragraph following it is clear that it should read “the twenty-one years included between the dates of the treaty of Guadalupe and the exchange of the ratifications of the said convention.”

Let us examine the arguments and precedents cited by Mr. Hay, Secretary of State of your excellency’s government, and Mr. Doyle, the attorney of the bishops who make the claim. They propose to show, by the authority of different authors, that in a decision the res judicata is not only the decisory part or final conclusion in the case which was sub judice, but also the constitutive facts from which the conclusion results. At the same time they recite the facts which, in their opinion, were proved, and which constituted the antecedents necessary for the conclusion at the end of the decision of Sir Edward Thornton; and it appearing from them in substance that Mexico acknowledged an indebtedness to the so-called pious fund of California of a certain sum at 6 per cent per annum, for which she was ordered to pay the amount of interest accrued to February 2, 1869, they believe that there should be collected from this government as execution of the decision of the umpire and by diplomatic correspondence the interest accrued during the following twenty-one years.

There is in this (permit me to say, with the greatest respect for those who allege it) a very grave error which I will endeavor to show later on, confining myself for the present to some brief remarks on that which really constitutes the res judicata.

That res judicata pro veritate accipitur is a principle admitted in all legislation and belonging to the Roman law, certainly no one will deny. Nor is it denied that a tribunal or judge established by international arbitration gives to its decisions “pronounced within the limits of its jurisdiction” (in the language of the authority cited by Mr. McCreery) the force of res judicata; but to give in practice the same force, [Page 758] as that directly expressed in the decision to close the litigation, to the considerations or premises not precisely expressed as points decided by the judge, but simply referred to by him in the bases of his decision, or assumed as antecedents necessary for the party in interest who interprets the decision, is a very different thing and can not be considered in the same way.

It would not be strange that the common-law jurists, cited by Mr. Doyle, should give greater practical importance to the considerations of a decision than the jurists of the civil or Roman law, because the principles which serve as a guide for the decision of other cases are usually found in the said considerations or bases. Nevertheless, these same jurists in giving, in a certain way, the force of res judicata to these reasons or bases will not claim that in all future cases they shall be admitted as absolutely indisputable truths. The proof of it is that there can be “overruled cases.” Above all, these jurisconsults can not claim, and it would not be admitted in any jurisprudence, that that which serves as a basis for one judicial decision shall be held, in another distinct case, as a truth so firm and so authoritative as to render another trial unnecessary when the supposed debtor refuses to recognize it; they can not claim that it be treated as if it were a simple execution of the decision of the preceding case.

This is the point in the present discussion, and simply in order that the reason I had for saying that res judicata is only that which is found to be determined in the decisory part of a decision may be known, I will quote some passages from the illustrious Belgian professor, A. Laurent, found in his Principles of French Civil Law, in which he defines res judicata, at the beginning of Volume XX, with the remark that, like the generality of authors, Laurent speaks only of the plea rei judicatæ and not of the suit to execute judgment, which has a more limited scope. “The court of Douai,” says Laurent, “has applied this principle (that legal presumptions should be restricted) to the res judicata. Because of its nature,” he says, “the plea of res judicata is essentially restrictive, that is to say, it should be applied only in cases explicitly prescribed by law, and there is no possible doubt as to its existence.” * * * “That which sometimes misleads,” he continues, “the litigants, and which ought not to mislead their lawyers, is that one of the former has the same interest in the two suits, whence he infers that the first decision should prevent the introduction of the second suit. The interest may be identical, but if the object of the two suits be different there is no longer res judicata.” (No. 50, ibid.)

“It is a principle that only the decisory part of the decision has the authority of res judicata. The reasons expressed by the judge decide nothing (in the case); res judicata, consequently, cannot result from them.” * * *

“It matters little if the reasons express an opinion relating to a controverted point; if the decisory part does not determine it by admitting or rejecting the opinion pronounced in the considerations, there is no res judicata.” * * *

“The court of cassation has decided that the res judicata must be taken from the decisory part and not from the reasons.” (Decision January 9, 1878. Dalloz, Chose Jugee, No. 22, p. 218.)

“We will cite only,” continues Laurent, “the last decision, as the jurisprudence is unanimous.” (No. 29, ibid.) “The creditor sues his debtor for interest of a principal sum; the judge condemns the debtor to pay. Is there res judicata in respect to the principal? It is supposed that the decisory part of the decision fixes the amount of the principal, and it has been decided that a decision in these terms does not give the force of res judicata with respect to the principal itself.” (Decision August 25, 1829. Dalloz, Chose Jugée, No. 24.)

“It may be objected that the judge, in ordering the payment of the interest, decides by implication that the principal is owing, as without principal there can be no interest. The question is to know whether there is res judicata; well, then, the judge has decided nothing in respect to the principal. This question has not been argued before him; it is, therefore, impossible for him to have decided and for the res judicata to exist.” (No. 32, ibid.)

It would hardly be possible to find an authority more directly applicable to the case than Laurent and the French court of cassation, which I have just quoted. And in our case the umpire of the joint commission did not only not decide on the principal, but that he could not do so. If, then, there is no principal legally recognized by a decision, there can be no interest on the same, except when (with reason or without) a decision may have expressly so declared, in the manner in which it was done by Sir Edward Thornton; and the interest now demanded is as far from being res judicata as it is from being the principal supposed to belong to the Pious Fund.

If I should desire to add new authorities in this matter, I would quote another terminant decision to the effect that the decisory part of the decision only is the res judicata. I would cite another decision pronounced by the French court of Poitiers, [Page 759] published by Dalloz in his Repertoire de Jurisprudence, article “Judgment,” No. 324; but we have already seen that this is a matter of unanimous jurisprudence among the jurists of the civil or Roman law.

The truth is that the question in the matter of res judicata might be put aside for the present and, deciding it to be premature, take it up at the proper time; that is to say, when the claimants bring a judicial action against the Mexican Government. Because, in effect, what do the authorities cited by Mr. Hay and Mr. Doyle say? None of them shows that because a principle or a fact is considered to be determined in a decision, when it has been executed in what it directly ordered, and it is desired to apply the said principle or fact to another later claim, that a new litigation is not necessary. They do not hold that the new debt is a consequent of the execution of a final decision. None of them says any such thing; they say, rather, quite the contrary. This is easily shown by an examination of the principal citations in question. The one citea by the Secretary of State is as follows: “Accordingly, the lord chief justice (Kenyon) of England held that a judgment is conclusive between the same parties upon the same matter directly in question in another court, and as equally conclusive upon the same matter between the same parties coming incidentally in question in another court for a different purpose.”

Mr. Burr W. Jones and Mr. Greenleaf simply say that the final decision of a competent court constitutes the res judicata and that this is conclusive between the parties and before any tribunal, a doctrine which no one disputes.

Mr. Wells says almost the same, adding the words: “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.” This supposes that another tribunal has cognizance of the same matter. But he is clearer when he adds: “Section 234. If a contract provides for payment by installments due at different times, the installments may of course be successively tried on as they become due.” Of course the installments must be tried judicially and successively, as they become due, and the same applies to interest, if necessary, provided that the supposed debtor may not be willing to pay.

The doctrine of Robertson, in the passage cited by Mr. Doyle, is the same, as follows: “A former judgment for the plaintiff is one of a series of actions, or other successive causes of actions may be evidence (and conclusive so far as it goes) of the rights of the parties in another of a series of suits.” He then cites a judicial decision on this matter; and referring to the case of several drafts accepted for the same cause, holds that if the debtor defended the cause of action and the decision was against him, he can not set up the same facts “in defense of a subsequent suit on another of the notes.”

Enough has been set forth to show that the citations made do not favor the course which Mr. Doyle’s clients have taken in applying to the Government to procure the payment of a debt which we do not acknowledge, and which, for this reason, requires another litigation to the end that if the decision be against us we may have a reason for paying it.

Your excellency’s Government, which because of its many and weighty duties may not yet have had opportunity to carefully study this question, has doubtless believed that this is a case, very simple, of carrying a decision into execution, of asking for the fulfillment of a treaty. Otherwise it would not have taken the course which the creditor ought to take—that of applying to this Government and presenting the interest account in order that if it were not paid to sue the said Government, or say the Mexican nation in the supreme federal court of the same, which, fortunately for the claimants, can be done in this country without the need of previously obtaining the consent of the Congress, which I understand is necessary in the United States of America.

And that it is not now a question of the fulfillment of the convention of 1868 is so incontrovertible that Mr. Doyle himself admits it in his “Observations.” “Doubtless,” he says, “as Mr. Mariscal observes (p. 5), the claim of installments maturing after February 8, 1869, is not included among the claims for the settlement of which the convention of July 4, 1868, was celebrated, and could not have been, for it did not then exist so as to be capable of presentation.”

If it is not a question of the fulfillment of that convention, which was fully carried out, any new claim, even when resting on the bases of one of those provided for by the treaty, or in a decision which invoked the same, any other later claim is subject to the usual process of all collections from the Government, and after the claimants exhaust the recourses allowed by the laws of the country, if it is believed that there has been a denial of justice or a notorious injustice, there will be room for diplomatic action.

It must not be believed that this objection to discuss the claim of the bishops of [Page 760] California on diplomatic grounds at the present time is because of prejudice, either political or of any other nature. It arises solely from a sentiment of duty on the part of this Government, from its firm and serene conviction that it should not grant so unjust a privilege to its pretended creditor with prejudice, perhaps, to justice and to the national interests. Because a diplomatic discussion is not suited to the ventilation of questions of a judicial nature, in which testimony must be presented and arguments made which are not precisely of international policy, but of a very different order. Otherwise it would give me great pleasure to continue to discuss this question with your excellency, of whose upright and friendly spirit I have had so pleasing an experience, and I would never doubt the justice of your excellency’s Government if it were possible for it to carefully examine the question. But to consent to an irregularity such as that proposed by the claiming bishops in their course of exacting interest of a principal which does not exist, and this without taking the trouble to apply directly to their supposed debtor, and to proceed, if necessary, before the competent tribunal, is a thing to which the Government of the Republic can not lend itself without failing in its most sacred duties.

In order not to slight your excellency’s remarks and those of your Government and the arguments of Mr. Doyle, which your excellency was pleased to send me, and also to show the impropriety of diplomatic intervention in this case, I have set out some reasons in the present note touching, perhaps hastily, the principal matter of the Pious Fund of the Californias, as it was at one time called. From what I have set forth it appears that the representatives of the Mexican Government never recognized the competency of the joint commission to receive and decide the claims of the California bishops, because of its not being of those submitted to that tribunal by virtue of the convention of July 4, 1868; and that such incompetency existed when the umpire signed his decision against Mexico. I have remarked that the incompetency of a judge, or excess in the exercise of his jurisdiction, deprives the decision in which he committed the excess of the quality of res judicata. I have mentioned that, notwithstanding the conviction that the decision of the umpire had this defect, the Government of Mexico had complied with it without objection, but that it could not extend the same deference to the claim for the new interest because its payment, not being included in the decisory part of the umpire’s decision, we do not consider as res judicata, even supposing that the judge had been competent in the case. Upon this point I have cited some authorities w ho hold that res judicata is only that which is found to be decided in the decisory part of a decision, not the facts or principles upon which it is based.

Finally, I have put aside that question, and I have demonstrated, if I am not mistaken, beyond question that the said authors cited in favor of the claimants held that a new claim for new interest, after decision for the first had been executed, requires, if the debtor does not consent to pay, new proceedings and a new trial, in which there may be set up as a basis, more or less conclusive, that which was determined in the decision. Not proposing now to comply with any decision, nor being, therefore, under the necessity of carrying the convention into effect, as the attorney of the claimants admits, diplomatic intervention appears to be premature, and the parties in interest should make use of their rights in the way I have indicated above.

I renew, etc.,

Igno. Mariscal.