Mr. Clayton to Mr. Hay.
Mexico, November 13, 1901.
Sir: Referring to my No. 1176 of the 6th instant, concerning the claim against Mexico growing out of the Pious fund of the Californias, I have the honor to report that on the 8th instant I called upon Minister Mariscal upon other business, and before leaving adverted again to the subject and asked whether he had yet read the documents transmitted to him with my note of August 21 last (inclosure 1, dispatch 1052). He replied that he regretted to say he had not yet found time to read said documents, but would do so very soon. He then proceeded to discuss the question, reiterating the position already taken by him that the claim was one which should be first submitted to the Mexican courts. I replied that my Government contended that the case had already been finally adjudged, hence there was nothing to so submit. He remarked that in case of irreconcilable disagreement the matter might be submitted to an arbitral tribunal, and again spoke of the prospect of the international conference providing for such a tribunal. He said, however, that the jurisdiction of such a tribunal would probably only cover future cases. I replied that I presumed if such a tribunal should be created and both parties were willing to submit the case to it there would be no objection, or the two Governments might select a board of arbitration in the usual manner. He replied that if the case should be submitted to arbitration the first question to be decided would be as to whether the Thornton award came under the principle of res judicata, and if that question should be decided in the negative the whole question would then have to be reopened. I suggested that there were three ways of peaceably settling the question—first, by the Mexican Government paying the claim; second, by mutual concessions in the way of a compromise, and third, by arbitration. As Mr. Mariscal made no reply regarding the question of compromise, I again requested an early answer as to the attitude of his Government after he had studied the documents above referred to, and turned the conversation to other subjects.
I judge from the conversation reported in my aforesaid dispatch No. 1176 and the one reported above that we shall be able to arrive at an understanding, in conformity with the views of the Department, to submit the matter to arbitration. I suppose it is the desire of the Department, in case Mr. Mariscal and I should arrive at a verbal agreement in conformity with my instructions, that I report that fact and the terms of such agreement to it in order that it may determine as to the form and manner of its consummation.
I have the honor to be, sir, your obedient servant,