Mr. Hay to Mr. Clayton.

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:

Is this claim, as a consequence of the former decision, within the governing principle of res judicata?
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.,

John Hay.
[Inclosure 1.]

Ralston & Siddons to Mr. Hay.

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:

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—
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.
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.
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:

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.
Because the petitioners show no legal interest in the title to the Pious Fund in controversy.
Because the petitioners had a legal remedy in the Mexican courts, which they were bound to pursue and exhaust before coming here.
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:

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.
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:
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.
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.
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.

[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—

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
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.

  1. The decision as to the jurisdiction of the Commission seems to have been unanimous; at least, I do not find any dissent on that question in the opinion of Mr. De Zamacona, the Mexican commissioner. One or more precisely similar claims were also allowed by the Commission, as I learn. The correspondence subsequent to the award I have summarized from Moore’s International Arbitrations (Vol. II, pp. 1330 and 1351). Although acting as the attorney in fact of the claimants and the counsel in the case, the Secretary did not deem the matter of sufficient importance to communicate it to me.
  2. Code de Procedure Civil, Art. 141, and notes.
  3. I do not mean to assert that the Crown never aided the missions; it may have done so to some limited extent, though I am not aware of the fact. What I assert is that the Pious Fund, which was incorporated into the public treasury of Mexico by the decree of October 24, 1842, never received from the Government a single maravedi; on the contrary, the monarchs often borrowed money from it.