Mr. Hay to Mr.
Clayton.
Department of State,
Washington, July 18,
1901.
No. 543.]
Sir: The Department has maturely considered Mr.
Mariscal’s note of November 28, 1900, inclosed in your No. 848, dated
December 14 ultimo, in regard to the claim against Mexico growing out of
the “Pious Fund of the Californias.”
The arguments contained in that note may be summed up as follows:
- First. That the Commission under the convention of July 4,
1868, was without jurisdiction to pass on the former
claim.
- Second. That therefore the present claim is not, as a
consequence of the former decision, res judicata.
- Third. That the claim is not just.
- Fourth. That the immediate remedy of the claimant is before
the supreme federal court of Mexico, with ultimate recourse to
the diplomatic forum in the event of “a denial of justice or a
notorious injustice.”
It is true, as stated by Mr. Mariscal, that “the treaty of
Guadalupe-Hidalgo, by article 14, exempts Mexico from all claims against
the Government which might have originated prior to the date of the
treaty.” There is in the argument, however, a latent fallacy. The treaty
was retrospective in this effect, not prospective. It did not exempt
Mexico from any claim which might arise in future in favor of American
citizens against Mexico. Nor did it release the Mexican Government from
the qlaims of its own citizens against it. Consequently, whatever claim
existed in favor of the Catholic Church of the Californias, either on
account of the principal or the already accrued interest of the “Pious
fund,” remained unaffected by the treaty, although the bishops of Upper
California could not claim diplomatically in the capacity of citizens of
the United States either the principal or the interest accrued prior to
February 2, 1848; but the evidence and the facts established on the
trial before the commission created under the treaty of July 4, 1868,
demonstrate the perfect equity of the claim for the installments of
interest falling due annually after the treaty of Guadalupe-Hidalgo to
the claimants in their capacity of American citizens. Hence the
jurisdiction and hence the decision of the umpire. The treaty of cession
of Upper California could not impair private right beyond the express
stipulations of the treaty, which in no manner attempted to affect the
right or the remedy of these claimants for injuries suffered after the
celebration of the treaty.
The first and second points developed in the minister’s note are
therefore manifestly unsound and untenable.
A careful reading of the evidence submitted by the opposing parties
before the Mixed Claims Commission formed under the convention of July
4, 1868, discloses no essential conflict with respect to the decisive
facts of the case and upon which the award of the umpire was based.
While the parties had conflicting theories of the interpretation of
those facts, the Government of the United States remains firmly
convinced of the soundness of the view adopted by the umpire. All the
facts essential to the defense of said cause are presumed, on the
principles of good faith, to have been adduced by the Mexican
Government, and the case is excepted from the ordinary rule of resort to
the courts of first instance in order to establish the facts and apply
thereto the pertinent principles of law. Even if resort were to be had
to the Mexican court in the first instance, an adverse decision to the
claimants could not, the facts being already settled and the principles
of law not being doubtful, alter the opinion of the Government of the
United States, and the beneficiaries of the fund are justly entitled to
the payment of their aliquot proportion of installments as they annually
accrue under the perpetual obligation of the Mexican Government. There
is, therefore, really nothing to submit to the local court for
adjudication.
It is argued by Mr. Mariscal that the Mexican church, or the part of said
church residing in Upper California, ceased in 1848 to hold the life
given to it by the laws of Mexico, the persons who composed it becoming
subject to the jurisdiction of the United States, and that they were
incorporated anew in 1850 in California with rights and
[Page 762]
duties distinct from those held by that
portion of the Mexican church which had been established in it. “Why,
then,” it is asked, “should this new corporation, exclusively a creation
of the law, inherit the rights and shares of the Mexican church?”
The obvious and incontrovertible answer is that while the Mexican
Government became a trustee of the principal fund for the benefit of the
ecclesiastical corporation, the latter was itself a trustee for its
beneficiaries, the object of the bounty of the founders of the charity.
Even supposing the dissolution or civil death of the corporation, that
does not affect or impair the rights of the beneficiaries. A new trustee
may, and in such case will, be created to effectuate the purpose of the
trust; and it is not disputed that the California corporation is the
legal representative of the beneficiaries and is clothed with the power
and charged with the duty of the faithful administration of the trust.
The very premises on which Mr. Mariscal’s argument is based lead
logically to the inevitable conclusion that the enjoyment of the fund
should be shared by all the beneficiaries, and that it should not be
diverted to a portion of them, depending on the accident of nationality.
The equity of all the beneficiaries is the basis of their common
inheritance.
Even though it were admitted that the trust lapsed on the making of the
treaty, it was only ad interim until the creation of a trustee capable
to execute the trust of the beneficiaries.
For reasons already given, the Government of the United States remains of
the unalterable conviction of the essential justice of the claim. The
position assumed by the Mexican Government, in Mr. Mariscal’s note, is
that the claim is unjust. This position effectually disposes of the
question of intervention, since the only reason of a reference to the
local tribunals is to establish the justice or injustice of the claim,
which has thus been already prejudged, constituting a denial of justice
in advance, and rendering nugatory the only reason of the reference. For
these reasons, and for those advanced by this Government in its previous
instructions, which it is unnecessary to repeat here, all these features
of the case relieve it from the operation of the ordinary rule and
preclude from requiring such recourse by the claimant.
While the Government of the United States, in the light of the evidence
adduced before the Commission, and of the decision of the umpire, could
not be reasonably expected to, and is in fact unable to, yield its
conviction of the essential justice of the claim, it is persuaded by the
careful consideration of the arguments presented by the Mexican
Government that that Government remains of the opposite conviction.
In view of the relations of friendship existing between the two
Republics, which were never more cordial and harmonious than at the
present moment, and which it is the sincere and mutual desire of the two
Governments to foster and strengthen, the matter now in controversy is
eminently suitable for determination by an arbitral tribunal,’ to be
agreed on by the two Governments. You will therefore, in the exercise of
your discretion, either suggest or bring about the suggestion of this
mode of adjustment. If an arbitration is accepted, it will be on the
understanding that all the evidence, proceedings, record, and decision
of the former case shall be laid before the new tribunal, which shall be
empowered and required to decide on the questions:
- 1.
- Is this claim, as a consequence of the former decision, within
the governing principle of res judicata?
- 2.
- If not, is this claim just? and to render such further
judgments or award as may be meet and proper under all the
circumstances of the case.
The agreement for submission to arbitration should also stipulate that
either Government, on its own motion or on the motion of counsel for
claimant, shall produce any further evidence within its possession or
control which may be seasonably called for, and it should give to the
tribunal the power to adopt such procedure as may be necessary to obtain
all the ends of justice.
You are also authorized, in the exercise of your discretion, to suggest
or bring about an offer to settle the matter by a compromise, once for
all, of the entire claim, and under the sanction of the Department,
which would wish to confer with the claimants in the course of the
negotiations.
I inclose herewith copies of briefs of Mr. Doyle and of Messrs. Ralston
& Siddons, which you are authorized to furnish to Mr. Mariscal.
I am, sir, etc.,
[Inclosure 1.]
Ralston &
Siddons to Mr. Hay.
Washington, D. C., February 21, 1901.
Observations upon letter of Señor
Mariscal, secretary of state of Mexico, to the Hon. Powell
Clayton, ambassador of the United States to Mexico, relative to
the claim of the Pious Fund of the Californias.
Sir: We have read with attention the letter
from Señor Mariscal, secretary of state of Mexico, addressed to the
Hon. Powell Clayton, ambassador of the United States, and relating
to what is known as “The Pious Fund claim.” We beg leave to submit
herewith some observations in reply to the contentions of the
honorable Mexican secretary of state.
We believe the positions taken by Mexico, as evidenced by the letter
in question, may be properly stated as follows:
- 1.
- That the decision of the Commission of 1869 was void in
that it exceeded its jurisdiction, and therefore that such
decision could not be regarded as res judicata. Such excess
of jurisdiction exists because—
- (a)
- The convention under which it acted provided that
“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,”
the claims of the bishops being of a prior
date.
- (b)
- There was no proper succession in interest between
the Mexican Church (held by the claimants to be the
original beneficiary of the Pious Fund) and the
bishops of California, incorporated under the laws
of the State of California.
- 2.
- That the decision of the arbitrator is only to be regarded
as res judicata in its decisory part—that is, in its
requirement of the payment of the particular interest
referred to in it—and not res judicata upon the question of
the amount of installments maturing annually
thereafter.
We shall endeavor in the course of this letter to meet the foregoing
contentions and the various implications flowing from them, but as a
matter of convenience have preferred to somewhat change the order of
the argument; first discussing the nature of the claim, then the
considerations which warrant us in believing that it is to be
regarded as res judicata upon the basis of the finding of the umpire
in the former case, and concluding with a demonstration that the
Commission and umpire had jurisdiction over the questions determined
by them.
It sufficiently appears from the literature of the case that there
was formerly in existence in Mexico a fund invested in various
properties, real and personal, and known as the Pious Fund of the
Californias; the purpose of which was to secure the conversion of
the Indians and the support of the church in the Californias; that
in the year 1842 the Mexican Government, being in possession of
these properties as trustee for the purposes of the fund, determined
for the sake of economy in administration to sell the same for a
fixed price and incorporate the proceeds in the national
[Page 764]
treasury, which as
sovereign she had the right to do. On the sum so produced she
engaged thereafter to pay interest at 6 per cent per annum in
perpetuity.
The bishop of California was recognized as the proper recipient of
these installments of interest. The date of the decree in question
being October 24, 1842, the annual installments of interest are
deemed to mature on that day. This interest was found to amount to
$86,000 per year. No dispute has ever been raised as to the right of
the Mexican Government to administer the property in question and
charge itself, as a trustee, with the payment of a definite sum. No
demand has ever been made for the repayment of the principal sum.
The bishops of California and all other parties in interest have
treated their claim against the Mexican Government as being a claim
for an annuity, the amount of which annuity had been fixed by the
Mexican Government at a sum equal to 6 per cent upon the total
capitalization. Mexico by her acts in 1842 recognized the definite
character of the claim against her, acknowledging a liability, not
for the principal, but for a certain annual charge. After having
herself stamped this character upon the claim of the Pious Fund,
Mexico can not now say that the claim is to the principal and not to
an annuity, and a claim for the principal if such existed, being
barred by treaty stipulation, no claim for the annuity can exist.
Mexico must continue the trust relation which she has herself
assumed.
The difference now insisted upon is more than verbal, it is
substantial, and is to be borne in mind when it is suggested to us,
as it has been by the Mexican secretary of state, that we have lost
our claim to the principal because such claim was not presented
under the treaty of 1848, the fact being that at no time under the
Mexican decrees could a claim for the principal have been
entertained.
It should be borne in mind that we never have had or made any claim
to the principal. From its origin it has been in the hands of
trustees; first the Jesuits; then the Spanish Crown; then the
Government of Mexico; then in the bishop under the law of 1836; then
from February 8, 1842, again in the Mexican Republic. All of these
changes were accomplished by law—the act of the sovereign, v We next
insist that the umpire, having decided that 21 installments of this
annuity were payable in 1869, has of necessity decided that a
perpetual obligation exists to continue the payment of such annuity,
such obligation only to be answered by proof of payment or of a new
state of facts arising, from which might be inferred a release of
all claim; neither of which conditions exist. To this his excellency
says that the only decisory part of the decision is to be regarded
as res judicata, and he contends that the decisory part of the
decision of the umpire extended simply to the finding of certain
unpaid installments in 1869 and not to the finding of an original
obligation to pay an annuity. We dissent from this position, both as
to the facts and as to the law.
In order to determine the decisory part, as he terms it, of the
decision, we have to consider what was under examination by the
court and, having in view such examination, what were the findings
of the court.
An inspection of the record of the Commission shows that the
existence of the original fund was inquired into by the court and
that in its inquiry it received the assistance of both the
petitioners and the defendant Government. It is not possible for us,
within the limits to which we are obliged to confine ourselves, to
use as illustrations all the incidents afforded by the record, and
we are furthermore embarrassed by the fact that we have not before
us the argument of Señor Aspiroz, then representing the Mexican
Government.
The opinion of the American commissioner is devoted to an examination
as to what the Pious Fund was, and he declares that the Mexican
Government, when it sold the properties and investments of the fund
under the decree of October 24, 1842, held the proceeds as a trustee
according to the decree of February 8, 1842, “to fulfill the
purposes proposed by the donor in the civilization and conversion of
the savages of the Californias.” And the American commissioner, on
page 5 of his opinion, determines the total of the fund to be
$1,436,033, and upon this basis decides that the petitioners shall
receive the sum of $904,700.79.
The Mexican commissioner in his opinion takes quite a different view
of the matter. He devotes much time to an investigation into the
character of the Pious Fund, seeking to prove that it was in itself
civil and not ecclesiastical, and declaring that—
“When Mexico and the United States liquidated, so to say, their
accounts in 1848, binding themselves not to seek in the past for any
cause of complaint or reclamation, the Pious Fund of California was
already incorporated into the national revenues of the Republic, and
the Government of Mexico had only allotted certain subsidies to the
ecclesiastical functionaries who served it as auxiliaries in that
part of the confederacy. This situation the claimants now desire to
alter and to oblige Mexico to pay the perpetual tribute of a rent to
certain American corporations.”
[Page 765]
Evidently Señor de Zamacona entertained quite a different idea of the
scope of the probable decision of the Commission from that now
entertained by the Mexican secretary of state, considering, as he
did, that the very purpose of the contention before him was, if
successful, to establish the right of the petitioners to what he
terms “the perpetual tribute of a rent.”
When in turn the umpire passed upon the questions at issue, he
examined the history of the fund and investigated as to its amount,
remarking that “there is no doubt that the Mexican Government must
have in its possession all the accounts and documents relative to
the sale of the real property belonging to the Pious Fund and the
proceeds thereof; yet these have not been produced; and the only
inference that can be drawn from silence upon this subject is that
the amount of the proceeds actually received into the treasury was
at least not less than it is claimed to be.”
We may therefore fairly believe that the parties in interest and the
arbitrators alike considered that it was the duty of the commission
to determine the question of the existence of the Pious Fund, its
amount, and whether the claimants were entitled to receive an amount
equal to 6 per cent upon such fund; and we are justified in
believing that the decisory part, as it is termed, of the findings
embraced the following points:
- 1. That there was a Pious Fund, the capitalized value of
which was $1,436,033.
- 2. That the Mexican Government was under an obligation to
pay an annuity, based upon the taking into the treasury of
such fund, to the bishops engaged in religious work in the
Californias.
- 3. That a fair proportionate share thereof to be paid to
the bishops of Upper California was one-half, and that in
1869 payments for twenty-one years were due.
But, says the Mexican secretary of state, the common law and the
civil law approach the question of res judicata from different
standpoints, and according to the civil law a finding that interest
is due and unpaid is not an adjudication that the principal is a
valid and subsisting obligation, and he quotes Laurent as
follows:
“The creditor sues his debtor for interest of the 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 fixed 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.)
This citation from Laurent loses all of its supposed force when we
find, as we do, on examination that the authority mentioned by
Dalloz was simply that of a case in which judgment for compound
interest had been rendered by default, for Dalloz says:
“L’autorité de la chose jugée ne s’attache point a”ux simples motifs
ou énonciations d’un jugement, relatives à des faits ou à des
questions qui n’étaient point specialement soumis à l’examen du
juge, alors même que ces énonciations se trouvent dans le dispositif
du jugement: tantum judicatum quantum litigatum. Ainsi, le jugement
par défaut, qui accueille une demande tendant uniquement à faire
produire des intents aux intérêts d’un capital, n’a pas l’effet de
la chose jugée, quant à la quotité du capital, quoique ce capital
soit exprimé dans le jugement (Req., 25 août 1829).”
We can readily believe that under similar circumstances in this
country a judgment by default would not be recognized as
determinative that the principal was due or as to its amount; the
obvious reason being that no discussion or consideration was given
of or to these questions—something vastly different from the
conditions prevailing in the Pious Fund case, where all of the
arbitrators particularly examined into the subject of the character
and amount of the original claim.
The honorable Mexican secretary of state might have added to his
citations from Laurent, for in the discussion of the general subject
contained in paragraph 32, from which he makes the citation now
under consideration, M. Laurent says:
“Un jugement accorde à une personne des aliments en qualité d’enfant.
A-t-il l’autorité de chose jugée sur la question de filiation? Si la
question a été débattue entre les parties, l’affirmative n’est point
douteuse.”
The aptness of this quotation to the question under consideration is
obvious. The subject-matter debated before the commission, repeating
ourselves, was the existence, character, and amount of the primary
fund, and therefore upon those points the decision of the commission
is to be regarded as res judicata, coming within the reason of the
rule, as stated by M. Laurent.
While we wish to avoid the temptation to unduly multiply appeals to
the civil law, yet in view of the citations contained in the letter
of the honorable Mexican secretary of state, we may be excused for
making further reference to Dalloz, covering the exact point now
under consideration.
We find that when a sum is payable by installments in quarters, a
decision regarding
[Page 766]
the
payment of the first quarter (a plea of nullity as to the whole
obligation being presented) constitutes res judicata in any
subsequent suit for the remaining quarters. We cite from section
112, Dalloz Jurisprudence Générate Title-Chose Jugée.
“Il a été jugé en ce sens que, lorsque le souscripteur d’une
obligation exigible par quart a 4te condamné à payer le premier
quart par arrêt qui a rejeté ses moyens ae nullité contre
l’obligation, il y a lieu d’opposer la chose jugée par cet arrêt aux
mêmes moyens de nullité par lui proposés contre la demande des trois
autres quarts (Req. 20 dec. 1830); en cas pareil, c’est toujours
l’exécution du contrat qui est reclamée et cette raison a paru
péremptoire à la cour.”
Similary, where there has been a dispute relative to a single year of
arrearages of an annual payment, and the discussion and decision
have had relation to the foundation of the right, the plea of res
judicata can be used in a subsequent action having relation to other
arrearages. We quote from section 113:
“Conformérnent a cette doctrine, il a été decidé que le jugement
intervenu dans une contestation relative à une année seulement des
arréages d’une rente s’applique de plein droit aux arrérages des
années subséquentes, lorsque la discussion et la décision ont porté
sur le fond du droit; dès lors, si la même réclamation s’élève
relativement à une année postérieure, elle peut être repoussée par
l’exception de la chose jugée. (Toulouse, 24 dec. 1842, aff. St.
Leonard, v. Appel civil, no. 201.)”
If one could ask a case more directly in point than those already
furnished by Dalloz, it is to be found in section 124, the case of
an annuity such as we claim is our demand against the Mexican
Government. We quote from the section and the note to the section
giving the case itself:
“En matière de rente viagère, où le capital est éteint, le jugement
rendu sur la totalité des arrérages de la rente a été déclaré avoir
l’autorité de la chose jugée sur l’existence même de cette rente.
(Req. 27 avril, 1807.)”
“La Cour: Considérant, sur le premier moyen pris de la fausse
application des lois sur l’autorité de la chose jugee, en ce que
l’arret du 7 pluv. an 10 n’aurait dû être envisagé que com me un
arret provisoire: Que cet arrêt était bien définitif et dans ses
termes et dans son objet: Qu’il termine la contestation qui était
née des exécutions faites pour le payement des arrerages, échus
jusqu’alors de la rente viagére de Bouret, et qu’il applique
définitivement le montantdeces arrérages à la dame Delambre, en
vertu du transport qui lui en avait été fait: Qu’il est intervenu
sur la défense au fond de la partie de Becquey-Baupre (la dame de
Guémenée), laquelle opposait alternativement et la novation et la
réduction de la rente; que l’arrêt lui reserve meme l’action en
réduction à, 21,000 fr., ce qui confirme de plus en plus sa
disposition absolue sur le surplus, puisque la réserve eût été
inutile si l’arrêt n’ eût été que provisoire: Qu’enfin, en matiére
de rente viagére oú le capital est éteint, avoir statué sur le
payement de la totalité des arrérages, c’est avoir reconnu et jugé
l’existence de la rente d’une manière absolue et définitive;—Et que
si l’on a détaché de la contestation le chef de conclusions relatif
au titre nouvel, ce ne peut être que parce que les vingt-neuf années
n’étaient pas encore écoulées depuis que la rente vigère avait été
crée; et qu’agissant par voie d’exécution de titres émanés de la
dame de Guémenée ellé-même, ce chef de demande était inutile
relativement à la contestation qui s’agitait:—Qu’ainsi l’arrêt du 7
pluv. an 10 étant véritablement définitif, l’autorité de la chose
jugée a nécessairement dû lui etre attribuée:—Rejette (Du 27 avril
1807, C. C., sect. req. MM. Muraire, ler pr.—Dunoyer, r).
From the foregoing we believe that we have absolutely shown that the
decision of the civil law upon the question of res judicata is
precisely that of the common law as shown by the citations contained
in the observations heretofore submitted by Mr. John T. Doyle.
Summing up the foregoing discussion upon the question of res
judicata, we are brought to the conclusion that the decision of the
commission of 1869 is absolutely conclusive upon the question of the
obligation of the Mexican Government to pay to the Catholic bishops
of California the amounts provided for by its decrees of 1842,
leaving open only as the subject of controversy the question whether
arrearages accruing since 1869 have been paid, and whether by some
subsequent settlement the entire claim against the Government has
been extinguished. Inasmuch as neither of these suggestions has been
made by the Mexican Government, we can fairly regard the argument as
conclusive, and consider that the Mexican Government is under an
absolute obligation to pay the amount now sought.
We shall next consider whether the Commission had jurisdiction over
the subject-matter in 1869, together with the incidental question as
to whether the bishops of California were proper parties
plaintiff.
We feel that we could, with propriety, be relieved from all
consideration of these questions, because they were raised and
argued before the commission in 1869, and, inasmuch as the finding
was had in favor of the petitioners, the Commission must
[Page 767]
have reached a conclusion
adverse to the present contentions of the Mexican Government.
Reference to the pleadings filed before the American and Mexican
commission on April 24, 1871, shows that Hon. Caleb Cushing, counsel
for the Mexican Republic, moved to dismiss the claim on the
following grounds:
- 1.
- Because the act of incorporation of the petitioners as
corporations sole did not authorize them to claim property
beyond the limits of the State of California.
- 2.
- Because the petitioners show no legal interest in the
title to the Pious Fund in controversy.
- 3.
- Because the petitioners had a legal remedy in the Mexican
courts, which they were bound to pursue and exhaust before
coming here.
- 4.
- Because the injuries complained of were done before
February, 1848, and this Commission has no jurisdiction of
the claim.
In the course of his brief, Mr. Cushing said:
“The petitioners now ask for the interest accruing since 1848. This
is not permissible, because this interest is only an incident of the
principal, the subject of claim in 1848. The principal claim being
barred by nonpresentation under treaty of 1848, the interest now
sought, which flows from that principal, died with the death of the
principal.”
The error in the position then taken by the counsel for the Mexican
Government, and now taken by the honorable Mexican secretary of
state lies, as it seems to us, in the fact that the claim of the
Catholic bishops of California was to an annuity, no part of which
annuity was payable to any citizen of the United States at the time
of the treaty of 1848. In 1869 there was a claim for some twenty-one
years unpaid annuity, and this claim was passed upon favorably by
the Commission. It is true that article 5 of the convention of 1868
stipulated that the parties hereto should “consider the result of
the proceedings of this Commission as a full, perfect, and final
settlement of every claim upon either Government arising out of any
transaction of a date prior to the exchange of the ratifications of
the present convention; and further engage that every such claim,
whether or not the same may have been presented to the notice of,
made, preferred, or laid before the said Commission, shall from and
after the conclusion of the proceedings of the said Commission be
considered and treated as finally settled, barred, and thenceforth
inadmissible.”
This language manifestly applied to claims which had accrued at the
time of the formation of the Commission, and such a claim was
presented to it by our clients. Since then there has accrued a claim
for thirty-one years of annuity, not presented, and which could not
have been presented, because it arose subsequently to the date of
such Commission. At the time of the convention of 1869 the claim now
under consideration was for something thereafter to arise—not then
in existence. The fact, therefore, that a nonexistent claim was not
presented before its birth to the Commission of 1869, constitutes no
argument against its presentation at this moment.
Nor can we admit greater force to the suggestion that the Catholic
bishops of California are not proper petitioners for relief. It
seems to be admitted that under the Mexican law the corporate
capacity of the Catholic Church was recognized; hence its legal
position was in no wise affected by the transfer of sovereignty. The
civil corporations of Mexico, operating within the jurisdiction of
California, would have been freely recognized after the ratification
of the treaty of peace, and the ecclesiastical corporations no less
so, even though there were in the United States no union of state
and church. In other words, the civil and ecclesiastical
institutions of the country remained unimpaired because of the
change of sovereignty, and the fact that for reasons satisfactory to
itself the Roman Catholic Church in California chose to become
reincorporated under the laws of the State of California is
immaterial, and was so properly recognized in the decisiop of the
umpire in the former case, for he said:
“The first question to be considered is the citizenship of the
claimants. On this point the umpire is of the opinion that the Roman
Catholic Church of Upper California became a corporation of citizens
of the United States from the 30th of May, 1848, the day of the
exchange of ratifications of the treaty of Guadalupe Hidalgo. By the
eighth article of that treaty it was agreed that those Mexicans
residing in the territories ceded by Mexico to the United States who
wished to retain the title and rights of Mexican citizens should be
under the obligation to make their election within one year from the
date of the exchange of the ratification of the treaty, and that
those who should remain in the said territories after the expiration
of that year, without having declared their intention to retain the
character of Mexicans, should be considered to have elected to
become citizens of the United States. It has not been shown that the
Roman Catholic Church in Upper California has declared any intention
of retaining its Mexican citizenship, and it can be concluded
[Page 768]
that it had elected to
assume the cizenship of the United States as soon as it was possible
for it to do so, which, in the opinion of the umpire, was when Upper
California was actually incorporated into the United States on the
exchange of the ratifications of the treaty of Guadalupe
Hidalgo.”
Subsequently he recognizes the claimants as the direct successors of
the Right Rev. Francisco Garcia Diego, bishop of California.
We believe that we have met successfully all of the contentions
contained in the letter of the honorable secretary of state of
Mexico, of date November 28, 1900; in fact, every single suggestion
now made by him, except that relating to the doctrine of res
judicata, was passed upon by the Commission of 1869 adversely to the
contentions of Mexico.
In view of the clear and manifest right of our clients to the relief
for which they seek, and in view of the further fact that, as
citizens of the United States, they can not be expected to appeal to
the courts of Mexico in the case of a demand of the nature of the
one now under consideration, we respectfully urge upon your
Department the advisability of insistent demand upon Mexico for the
settlement of this claim.
We have the honor to be, very respectfully, your obedient
servants,
- Jackson H. Ralston.
- Frederick L.
Siddons,
Of Counsel for
the Roman Catholic Bishops of
California.
[Inclosure 2.]
M. Doyle to Mr.
Hay.
Observations on the letter of His Excellency Don
Ignacio Mariscal, to Hon. Powell Clayton, United States
ambassador to Mexico, dated December 14, 1900.
Sir: I beg to submit to you the following
observations on the letter addressed to Hon. Powell Clayton, under
date of December 14, 1900, by Don Ignacio Mariscal, secretary of
state of the Mexican Republic, in reference to the claims of the
prelates of the Catholic Church of California against Mexico for
arrears of interest on the Pious Fund of California.
Mr. Mariscal’s argument appears to be reducible to three points,
which the distinguished author develops and urges in various forms.
He contends:
- I.
- That the present claim is not one for diplomatic
intervention, but must be presented to and tried before the
courts of Mexico, which he says are open to the claimants
for that purpose.
- II.
- Conceding frankly, as he does, the universal acceptance of
the principle “res judicata pro veritate accipitur” and its
application to the decisions of tribunals created for
international arbitration, he claims that the award of the
Mixed Commission created by the convention of July 4, 1868,
is not conclusive in the present case as to the amount of or
Mexico’s liability for installments accruing after October,
1868, for two reasons, viz:
- (a)
- Because, in deciding the case submitted to the
Mixed Commission of 1868, that tribunal exceeded its
jurisdiction, inasmuch as the claim put forward was
not one of the class agreed to be submitted by the
convention in question.
- (b)
- Because the establishment of the amount of
interest annually accruing in the case and payable
under the decree of October 24, 1842, is not any
portion of what he terms the decisory part of the
award, and that hence the principle of “res
judicata, etc.,” does not apply to it.
- III.
- Because the Catholic Church of California of to-day is not
the legal successor of the Catholic Church which existed
here under the Mexican Government, and derives no title from
the latter.
These three points embrace, I believe, the whole of Mr. Mariscal’s
contention, although with his known versatility they are put forward
and discussed in different forms and aspects. Instead, therefore, of
following the honorable secretary through his argument in detail,
which would lead to prolonged discussion, I shall confine myself to
answering the three points in question.
1. As to the suggestion that this claim is not properly the subject
of diplomatic intervention by the United States, but must be
submitted to the courts of Mexico, it seems to me not to be my part
to answer. The United States have made the claim the subject of
diplomatic representations on behalf of their citizens to Mexico, as
they have of other moneyed claims in numerous instances since that
Republic
[Page 769]
achieved its
independence from Spain. More than one convention for the
ascertainment and adjudication of such claims has been agreed on
between the two Governments, and these arbitral courts have made
numerous decisions. More than once Mexican publicists have put
forward the plea now urged by Mr. Mariscal that the Mexican courts
were open and should be resorted to by the claimants. The doctrine,
however, has never been accepted by the United States, and probably
never will be. Its acceptance would in fact make Mexico (and any
other State that chose to pass similar laws) the final judge of its
duties to citizens and subjects of other powers, and thus in effect
withdraw it from the family of civilized nations and all the
obligations of international law.
2. Mr. Mariscal contends that in its judgment, pronounced in 1875,
the Mixed Commission created by the convention of 1868 exceeded its
jurisdiction, because the claim of the prelates of the Catholic
Church for the installments of interest on the Pious Fund accrued
after February 2, 1848, did not come within the class of cases which
by the convention of 1868 it was agreed to submit to
arbitration.
(a) In considering this point I have to
express my thanks to Mr. Mariscal for his candid admission in
paragraph 17 of his letter that the principle “Res judicata pro
veritate accipitur” is one “admitted in all legislation,” and that
“a tribunal established for international arbitration gives to its
decisions pronounced within the limits of its jurisdiction the force
of res judicata.” In return I accept unhesitatingly the converse
doctrine claimed by him, viz, that the decision to have the force of
res judicata must be within the jurisdiction of the tribunal
pronouncing it. These reciprocal admissions will shorten the
discussion of the present case by reducing it to the two inquiries:
(1) What was the claim of the prelates of the Church of California
presented to and passed on by the Mixed Commission of 1868, and was
it within the jurisdiction of that tribunal? and (2) What did the
Commission of 1868 decide about it?
1. The claim as stated on the very first page of the memorial of the
claimants presented to the Mixed Commission was that “the Republic
of Mexico was liable to the Roman Catholic Church of the State of
California in a large sum of money, exceeding, according to the best
information they, could obtain, seventeen hundred thousand dollars
in gold coin of the United States, for the portion belonging to the
said Church of California, of the interest which has accrued since
the second day of February, 1848, on the capital of the Pious Fund
of the Californias, which was incorporated into the national
treasury of the Republic of Mexico by and in pursuance of the decree
of the Provincial President of said Republic dated October 24, 1842,
and on which capital the said Republic of Mexico, by the same
decree, undertook and promised to pay interest at the rate of 6 per
centum per annum thenceforth.” It was one that English and American
lawyers would call a common-law action of assumpsit, founded on an
express promise. The memorial after stating the claim exactly as
above quoted, proceeds to set forth the historical matter relative
to the case, already well known and unnecessary to repeat here.
Whether a claim by a beneficiary against his trustee thus arising ex
contractu where the promise and assumption of duty preceded the 2d
of February, 1848, but the breach of duty complained of occurred
after that date, came within the purview of the convention and thus
became cognizable by the commission, is the question which Mr.
Mariscal undertakes to reopen at this late day. It depends, of
course, on the proper construction of the text of the convention as
defining the intent and meaning of the contracting parties.
Such a question the tribunal had necessarily to pass on in every case
presented to it by either side, for in all of them the first inquiry
necessarily was, “Is this one of the cases we are appointed to
decide? If not, we must dismiss it without further examination.” I
apply the word “reopen” to Mr. Mariscal’s argument advisedly,
because reference to the proceedings of the commission will show
that the objection now raised by him was urged and argued before
that tribunal, first by the Hon. Caleb Cushing in his motion to
dismiss the claim, filed April 2, 1871 (point 4, p. 7), and again by
D. Manuel Aspiroz in his elaborate argument on the final hearing
(paragraph 149 et seq.). It was answered in my printed argument on
January 2, 1872 (point 4, pp. 29 to 39), and my reply to D. Manuel
Aspiroz, dated January 1, 1875 (point 10, p. 25), as well as in the
argument of Messrs. Phillips and Wilson, of January 1, 1872 (pp. 8
to 11). Printed copies of these papers, with the portions here
referred to marked by a black line down the side of the page, are
herewith presented, except the very able and learned argument of Don
Manuel Aspiroz, which not having been printed I am unable to so
furnish. It is, however, accessible on the files of the Department
of State.
The question having thus been raised and thoroughly discussed I can
not consent by now rearguing it here, to admit that it is open to
discussion. The commission
[Page 770]
decided it in our favor and the money award followed necessarily,
for the only question of fact open to controversy was the amount of
the fund incorporated into the national treasury under the decree of
October 24, 1842. The authentic evidence of this being all in the
hands of Mexico, and by her withheld from the commission, our
recovery was necessarily limited to the items we were able to make
proof of and was undoubtedly much less than it would have been had
we had access to the evidence.
That the Mexican Government, while urging the objection just referred
to, was prepared for a decision adverse to its contention is clear
from the conduct of its officers. They knew the magnitude of the
claim ($1,700,000), and that if deemed to come within the purview of
the convention they could scarce hope to avoid a heavy award against
them. If, therefore, they could with truth have said, “We did not,
in making this convention, intend to include claims of this
character,” they should, and doubtless would, have taken a course
similar to that adopted by Great Britain in the case of the
arbitration of Alabama claims. That history is well known.
After it was seen that the case of the United States, as laid before
the arbitral tribunal, included demands for indirect or
consequential damages, the British Government made known that it did
not regard such claim as embraced within the submission, and that if
included by its language, such was not its intention in ratifying
the treaty. It proposed a supplemental convention to settle this
point before proceeding further with the arbitration, and in
presenting its case to the arbitral tribunal at Geneva, accompanied
the act with an express reservation of its rights in this respect,
of which such presentation was not to be deemed a waiver. It asked
an adjournment of many months to give time to conclude the pending
negotiation with the United States for an explanatory convention.
This difference of opinion as to the jurisdiction of the commission
threatened to break up the whole treaty and possibly lead to most
deplorable consequences. In this juncture the abitral court, by a
happy inspiration, announced to the parties that the indirect claim
in question did not in their opinion constitute, on principles of
international law, sufficient foundation for an award of
compensation in damages between nations.
Upon this announcement and proper entry of it in the record of the
proceedings of the tribunal, the claim was dropped and the
arbitration went on to a happy conclusion. Had Great Britain,
instead of this course, argued before the Geneva tribunal against
the allowance of such consequential damages as not included in the
submission, she would have been universally considered as having
taken the chances of an adverse decision, and if such had been made
could never have honorably refused to pay the award. Mexico was in
precisely the same predicament in the case of the Pious Fund of
California. She deliberately argued and submitted the question
whether the claim came within the terms of the convention before the
arbitral tribunal created by it. The decisiona was
adverse to her, and the enlightened men who guided her counsels felt
that she had no course honorably open to her but to comply with the
decision. This act must, I think, be deemed by all impartial minds a
distinct admission of the authority of the Commission to decide. In
accepting the award Mexico necessarily accepted it with all its
consequences.
It is true that her distinguished secretary of state, seeing at once
that an award of the twenty-one annual installments accrued between
1848 and 1868 necessarily involved a determination that an equal sum
would become due annually thereafter, sought to avoid this corollary
by a species of protest filed in the State Department to the effect
that “while the final award in the case only referred to interest
accrued at a fixed period, said claim should be considered as
finally settled in toto, and any other fresh claim in regard to the
capital of said fund or its interest accrued or to accrue as forever
inadmissible.” But your predecessor then in office, Hon. Hamilton
Fish, most properly replied to him “declining to entertain the
consideration of any question which contemplates any violation of or
departure from the provision of the convention as to the final and
binding nature of the awards, or to pass upon or by silence to be
considered as acquiescing in any attempt to determine the effect of
any particular award.”
(b) Mr. Mariscal is of opinion that the amount
of the annual interest promised by the decree of October 24, 1842,
though distinctly stated in the decision of the Commission
[Page 771]
of 1868 as $43,080.99 (the
half of $86,161.99), and made the basis of its award, has not by
that decision become res judicata, but remains yet to be ascertained
over again every time a new demand for any further installments is
made, basing this singular opinion on the French practice of
formulating the decisions of the courts into the “considerants” and
the “dispositif,” of which only the latter is by their law deemed
decided, and quoting dicta of Laurent to that effect. But these
expressions evidently refer to the peculiar forms used in rendering
judgments under the French Iaw,a and hence have no
application to the judgments of tribunals not following such forms
of procedure and a fortiori not to the determinations of
international tribunals which proceed according to forms and modes
of practice of their own.
It is not, of course, disputed that the conclusive effect of res
judicata extends only to those facts necessarily involved in the
judgment, and that it only concludes parties to the action of
proceeding and those claiming in privity with them. As to what was
actually decided by the Commission of 1868 in relation to the amount
of the claim for the interest on the capital of the Pious Fund of
the Californias, it is easily ascertained from the opinions of the
Hon. W. H. Wadsworth and Sir Edward Thornton, which constituted the
judgment in the case. They are in print, and copies are furnished
herewith, with the passages marked as before on pages 4 and 5 of the
former and page 6 of the latter.
3. That the Catholic Church of California to-day is not the legal
successor of that church as it existed under Mexican rule and
derives no title from the latter.
This objection was also urged before the Commission of 1868 and
answered by us so conclusively that I was not prepared to see it
again put forward by Mr. Mariscal. If admitted, it would destroy the
identity of the cities of San Francisco, San Jose, Santa Cruz, and
Los Angeles, with the Mexican pueblos, to which they succeed
respectively and in virtue of which succession they enjoy large and
valuable properties. Such destructive effect of a change of
sovereignty has never been recognized under any system of
jurisprudence. Strasburgh, transferred by France to Germany, and
Nice, transferred by Italy to France, are notable examples to the
contrary, and the opposite rule to that claimed here has been
universally received by publicists. But I will not again go over the
ground traversed in the previous argument. This whole question was
argued before and passed on by the Commission of 1868. (See argument
of D. Manuel Aspiroz, paragraphs 124 to 129. My reply thereto, dated
January 1, 1875, Point VIII, page 22 et seq., and argument before
the umpire, page 26, herewith presented, marked as before noted, but
in red ink. Opinion of Mr. Commissioner Wadsworth, on page 3 at
foot, and of the umpire, on page 1 at foot.)
I would close these observations here, but a proper respect for the
opinions of so distinguished a person as Mr. Mariscal seems to call
for some notice of the French authorities which he has cited. They
all go to the extent and application of the doctrine of res
judicata. I have, in a memorandum, submitted to the Secretary of
State, and by him communicated to the Mexican Government, presented
what I confidently believe to be the correct view of the law of all
civilized societies on that subject, supported by numerous
authorities. To repeat what was there urged would be idle, and I
could scarce hope to add anything new and material to it. I shall
therefore content myself with emphasizing the instruction to be
derived from the case of the S. P. R. R. Company v. The United States. In my former paper that case was
necessarily referred to as in manuscript; but it has since been
reported and may now be found in 168 U. S. Reports, page 1. It is
recalled specially because of the magnitude of the interests
involved. The fact that the United States Government was arrayed on
the one side and one of the great corporations of the country on the
other, as well as the high character and position of the tribunal,
all afford a guaranty that no material consideration applicable to
it was overlooked or lost sight of.
It was a contest as to the title of some 600,000 acres of valuable
land in the great valley of California, the title of which depended
upon the question whether certain maps, filed in the office of the
Secretary of the Interior, were preliminary maps of the general
route of the road, or maps of definite location. It was shown that
the same question had been already presented and decided between the
parties, in a case involving a small portion of the same tract, and
the maps in question were then determined to be maps of definite
location. The court therefore held that the question became res
judicata by that determination and decided accordingly. The
character of the maps was deemed distinctly a question of fact, and
the evidence was examined; the fact that they were filed by the
company and accepted by the Government as maps of definite location
was held to be conclusively established by the former adjudication.
I feel that the authority of the Supreme Court of the
[Page 772]
United States may be
confidently relied on to outweigh the opinion of any text writer,
however respectable, as to the limits to which the principle
extends, even if they should be found to differ.
Rightly understood, however, I find no conflict between the dicta of
Professor Laurent and Mr. Dalloz, quoted by Mr. Mariscal, and the
determinations of our common-law tribunals. There is indeed a lack
of precision of expression in the text of each of these continental
writers which leaves them open to misunderstanding, but that must
not be allowed to mislead us. For example, the illustration derived
from the decision of August 25, 1829, cited from Laurent in
paragraph 18 of Mr. Mariscal’s letter, had better be read in the
original French than in the English version of the letter, which has
itself undergone translation from the Spanish. I will take the
liberty of going back to that original, and in doing so must observe
that Mr. Mariscal has, in my judgment, failed to grasp the true
significance of the text. The case put is a judgment for interest on
money, wherein the sum due as interest is determined, and the amount
of the capital, from which it accrued, is mentioned. The creditor
thereupon sued for the principal, and sought to make his judgment
for the interest evidence that it was due, claiming even that it was
res judicata. From this proposition the court dissented, saying, No!
The claim you now make was not involved in the determination of the
former action. Observing this, the writer says: “On peut objecter
que le juge, en allouant les intérêts, decide implicitement que le
capital est dû; puisqu’il ne peut y avoir d’intérêts sans capital.
Sans doute! mais la question est de savoir s’il y a chose jugée? Or
le juge n’a rien decidé, quant au capital. Cette question n’a pas
été agitée devant lui; il est done impossible qu’il l’ait decidée.
Partant il n’y a pas de chose jugée.” Here the words “sans doute”
are not intended to affirm that the judge in awarding the interest
has by implication decided that the principal is due, for that he
plainly has not, and it is just what the writer means to deny; he
has merely determined its amount. The words “sans doute” apply only
to the second member of the sentence, viz: “Il ne peut y avoir
d’intérêts sans capital.” But from the fact that a capital bearing
interest exists it does not follow that such capital is due and
demandable, in presenti; it may not become due for years to come.
Read with this gloss in mind, the text becomes plain and in entire
conformity with the doctrine of the common-law courts.
Again, as to the somewhat obscure passage quoted from Dalloz (1852,
1, 291), I understand that in that case the purchaser at an auction
set up in his action sundry credits, which he claimed, against the
price at which the property was knocked down to him. The judgment
established the amount of these credits and named the amount of his
bid from which they were to be deducted. Later on—probably when
payment came to be made—he set up a claim that a reduction of 5,050
francs from his bid had been conceded to him. The allowance of this
was opposed on the ground that the amount due in the purchase price
had become res judicata. The cour de cassation decided that there
was no adjudication as to that amount or the sum due on it, but only
as to the validity and amounts of the offsets to be allowed against
it. The only matter put in issue or decided in the case in question
was the validity and amount of the particular credits and offsets
claimed by the purchaser and denied by the other party, which must
have been disclosed by the pleadings. As to any other matters going
to enhance or diminish the sum due in consequence of occurrences
after the property was knocked down, such as payments on account or
the abatement of price by the agreement alleged, they were wholly
outside the scope of the action, not the subject of contention in
it, and of course not decided in it.
What is remarkable about these citations, and many others from like
sources that I have examined, is the great looseness of expression
and lack of accuracy of thought indulged by the authors. Take, for
instance, the comment of Laurent on this case of interest. He says:
“La question est de savoir s’il y a chose jugée?” Now, if there is a
judgment on the merits, there must be a res judicata, or, as they
call it, a chose jugée. A judgment on the merits without something
adjudged is inconceivable. What the writer means is, “the question
is whether the point now under discussion was included in that
decision?” But that is very far from what he says. The fact is that
the usage of over four centuries of reporting cases arising under
the law of England and of the States and colonies that have sprung
from her loins, and their use as precedents for like cases arising
thereafter, has led to an accuracy and precision in the employment
of legal language and phraseology in the definition and limitation
of rights and duties to which continental writers are strangers, and
has made English eminently the language of jurisprudence. This
accounts for the contrast between the unsatisfactory looseness of
expression used in continental law treatises and the extreme
accuracy of American and English ones.
In concluding these observations, I trust I may be pardoned for
calling attention to the long period during which this claim has
been pending and to the fact that so
[Page 773]
far it has been answered only by dilatory
pleas from Mexico. The former embarrassed condition of Mexican
finance sufficiently accounts for these in the past; but the
Republic having, under the able guidance of its present Executive,
surmounted its difficulties and recovered a sound financial
position, is now in condition to treat the case on its merits. I
think it would be difficult to imagine one more eminently just or
more strongly appealing to the national pride of Mexico for payment
than this of the Pious Fund of California. It was built up entirely
by the private benefactions of individuals, and sacredly devoted to
a philanthropic and religious object by the piety and benevolence of
its founders. The public, whether under the Spanish Crown or under
the various governments which have swayed the destinies of the
Mexican nation since the “Grito de Independencia” of 1810, under the
patriot priest Hidalgo, never contributeda a dime to it.
Most of the donations which went to make it up were proved before the
Mixed Commission by public histories and records of the highest
authenticity, most of them over a century old—as Venegas’s Noticia
de Californias, etc., Madrid, 1757; Clavigero’s Storia de
California, Venice, 1789; Baecker’s Nachrichten von der Amerikaner
halbinsel Californien, Manheim, 1772; Noticias de la provincia de
California, en tres cartas etc., Valencia, 1794; Historia de la
Compañia de Jesus en Nueva Espana, etc., Mexico, 1842; Documentos
para la Historia de Mexico, cuarta serie, Mexico, 1857; De Mofras’s
Exploration du Territoire de l’Oregon, etc., par ordre du Roi,
Paris, 1844; foundation deed of the Marquis of Villapuente and his
wife, dated June, 1735, certified officially by the notary having
custody thereof in Mexico in pursuance of a judgment requiring him
to do so, in which the M. R. archbishop of San Francisco was
plaintiff and the Mexican Government intervened as a defendant. It
is simply impossible that there could be error, concealment, or
falsehood about it. I doubt if there was ever a claim brought before
a court supported by such a body of authentic historical evidence as
it was.
It was decided to be justly due, and the amount of it established by
the award of an international tribunal composed of eminent
publicists of high character, and the amount fixed, with extreme
leniency to the debtors, prompted, in the language of the umpire, by
consideration for the “troubles and difficulties to which Mexico and
her Government have been subject for several years.”
It interests a very large number of citizens in this State, Nevada,
Utah, Oregon, Washington, Idaho, and Montana, for all those
Territories are deemed by the prelates representing the claim
entitled to share in the benefits of the fund, because embraced
within the benevolent intentions of the founders, which were
coextensive with the claims of the Spanish monarchs to temporal
dominion. These extended up the west coast as far north as known and
indefinitely inland.
At the time when the United States, from a mere regard to the right
and justice (irrespective of law), are refunding to Mexico a very
large sum, which they were by fraud and perjury mislead into
collecting from her by judicial process, it can scarcely be deemed a
gracious act, or one in harmony with the same spirit, for that
Government to procrastinate and put off so just a claim as this by
dilatory and technical exceptions not touching the real merits.
Doubtless the world has changed since this obligation was assumed by
Mexico in 1842, and 6 per cent per annum has become a heavy rate of
interest to pay, but instead of piling up by delay a mountain of
debt which, “creep time ne’er so slow,” will one day be paid—for in
the end justice will be done, and the church which has weathered the
storms of nineteen centuries and “held on its rank unshaked of
motion” since the Caesars reigned in Rome may surely be counted on
to endure as long as any existing political government—how much more
gracious and creditable would it be to propose an amicable reduction
of the rate of interest to a more modern standard, accompanied with
punctual future payments, or, if preferred, an extinguishment of
future claims by voluntary payment of the capital? If your mediation
between the parties were the means of bringing about such a result,
you might justly claim the gratitude and become the benefactor of
both.
I am, sir, very respectfully, your obedient servant,
- John T. Doyle.
- W. T. Sherman Doyle, of Counsel.
Menlo
Park, Cal., February 22,
1901.
[Page 774]
[Inclosure 3.]
observations of mr. john t. doyle upon the
effect of the treaty of 1868.
The suggestion that our demand for interest on the Pious Fund from
and after the year 1869 is barred or released by the terms of the
convention of July 4, 1868, must be based on either—
- 1.
- The concluding lines of Article II, which provide that no
claim arising out of a transaction of a date prior to the 2d
day of February, 1848, shall be admissible under this
convention; or
- 2.
- The provision of Article V, whereby the parties agree to
consider the result of the proceedings of the Commission as
a full and final settlement of every claim upon either
Government arising out of any transaction of a date prior to
the exchange of the ratification of the present convention.
Whether presented to the arbitral court or not, such claims
shall from and after the conclusion of the proceedings of
the Joint Commission be treated as settled, and thereafter
inadmissible.
Article I of the convention provides that “all claims of United
States citizens against the Mexican Republic arising from injuries
to persons or property by Mexican authorities * * *(and vice versa)
* * * which may have been presented to either Government for its
interposition with the other since February 2, 1848, and which yet
remain unsettled, shall be referred to two commissioners,” etc. The
claim for the interest on the Pious Fund accrued since February 2,
1848, was distinctly one of these. It was presented to the United
States Government for its interposition with Mexico on or just about
the 22d of July, 1859, and was therefore referred to the Joint
Commission by the express words of the convention. It would be a
singular construction of the instrument that would by one section
refer the claim to the Commission, and by another forbid its
consideration by it.
There had been a prior commission to hear and determine United States
claims against Mexico, acting under the convention of 1839 and 1843.
Many claims had been decided by it, but it had not completed its
duties when it expired by limitation. Eighteen claims remained
undecided on which the commissioners had differed and the umpire had
not acted, and there were seven more on which the commissioners had
not acted when their time expired. A promise was then exchanged
(convention of 1843, Article VI) and such was agreed upon by the
plenipotentiary, but it failed to obtain ratification by the Senate.
The two Republics were drifting into a war, which broke out on the
8th of May, 1846, and was brought to a close by a treaty of
Guadalupe Hidalgo, February 2, 1848. In that treaty provision was
made for the adjudication of not only the old claims against Mexico
which remained undecided by the old commission, but for any new
claims of United States citizens against Mexico which had arisen
since, and the United States undertook to pay Mexico $15,000,000 for
the territory she ceded to us, and to pay such claims to the extent
of $3,250,000, for the ascertainment of which a commission was
afterwards appointed. Mexico was released and discharged from all
such claims. In the treaty of Guadalupe Hidalgo therefore settlement
and release went hand in hand. Claims were released for the
settlement of which provision was made, and none others were
released. A gratuitous release was never proposed by either party,
nor contemplated by either. Hence when Mr. Cushing put forward this
objection in his motion to dismiss he felt logically constrained to
couple it with a claim that our demand had arisen before February 2,
1848, and might have been presented to the Commission created by
Congress to audit such claims. In reply to this contention I said,
“The test proposed is undoubted the true one and I accept it.” If
the claim could have been presented to the American Commission,
created under the treaty of Guadalupe Hidalgo, it is not cognizable
here, but is e converso also true that if it was not presentable to
that Commission it is within the jurisdiction of this. That it comes
within the latter category will appear from the historical facts
which preceded the treaty of Guadalupe Hidalgo, the objects
contemplated by it, and from its language. See my argument January
2, 1872, page 29.
That the release of Mexico and the assumption of payment were
correlative engagements was not, so far as I know, disputed by the
counsel for Mexico. No special stress was laid on the words “growing
out of a transaction” in the end of Section II for the obvious
reason that the definition of claims cognizable under the convention
were carefully expressed in Article I of the convention and
specially devoted to the subject, and it would be against all rules
of reasonable interpretation to change the limitation there provided
by a construction of the words in Article III, which would have the
effect of releasing a claim against Mexico for the examination and
adjudication of which no provision was made.
What construction then, may be asked, do you place on the words
“arising out of a transaction of a date prior to the 2d of February,
1848? “I answer, they were intended
[Page 775]
to be equivalent to “arising out of a cause of
action accruing at a date prior to the 2d of February, 1848.” They
are simply used in the sense in which, if treating of claims against
individuals, we would employ the term, “the cause of action accrued
before the date named.” The words “cause of action,” not being
strictly applicable to claims against an independent state or
sovereign, which in general can not be sued, the other phrase was
employed in this article, as well as in the succeeding article (V),
to express the same idea. It is true that Mexico, as we learn from
the letter of Mr. Mariscal and from the argument of Don Manuel
Aspiros, does in certain cases permit herself to be impleaded and
sued in her own courts; but the United States does not, and a phrase
equally adapted to both the contracting parties was naturally
sought. All the above is, of course, on the assumption that I am
addressing one who considers our claim to arise out of Mexico’s
promise to pay us interest on the capital of the Pious Fund, which
bears date October 24, 1842, but it is not the undertaking or
assumption of duty (the date of which is wholly immaterial), but the
breach of that duty, that furnishes ground of complaint, or, in
common-law language, gives rise to the cause of action. The maxim
“Causa proxima spectatur” applies.
The two powers having by the convention of 1868 agreed to consider
the result of the proceedings of that Commission a full and final
settlement of every claim upon either Government arising out of any
transactions prior to the date of the exchange of its ratification
(February 1, 1869), the last-named date became the limit of the
installments recoverable by us before that tribunal. Accordingly, we
were awarded 21 installments, 1848–1868, both inclusive. That being
the limit of the authority of the Commission to adjudge was also the
limit of what the United States released. Surely it is not suggested
that by Article V claims that could not be presented to the
Commission were to be cut off by its awards. That would be, I think,
a flight even beyond Mr. Mariscal.
John T. Doyle.
Menlo
Park, March 4,
1901.
