Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 2, 1902
Mr. Hay to Mr. de Azpiroz.
Washington, May 20, 1902.
Excellency: Answering your excellency’s note of the 10th instant, I submit herewith, by the hand of Mr. Ralston, attorney for the claimant in the case of the Pious Fund, the draft of a protocol for the submission of said claim to arbitration. The time is so short that Mr. Ralston has consented to deliver this to you in person and to arrange with you the terms of the protocol, in order that the same may be promptly settled and transmitted to Mexico in time for action by the Mexican Congress. The basis of this protocol is the project submitted by the delegates of Mexico to the recent Pan-American Conference, with some slight changes in which it appeared to the Department that the project might not work successfully. The Department is hopeful that this project may prove on experiment to be a practical and successful solution of the general problem of Pan-American arbitration.
I have the honor to be, with the highest consideration, your excellency’s most obedient servant,
protocol of an agreement between the united states of america and the republic of mexico for the adjustment of certain contentions arising under what is known as “the pious fund of the californias.”
Whereas, under and by virtue of the provisions of a convention entered into between the high contracting parties above named, of date July 4, 1868, and subsequent conventions supplementary thereto, there was submitted to the Mixed Commission provided for by said convention a certain claim advanced by and on behalf of the prelates of the Roman Catholic Church of California against the Republic of Mexico for an annual interest upon a certain fund known as “The Pious Fund of the Californias,” which interest was said to have accrued between February 2, 1848, the date of the signature of the treaty of Guadalupe Hidalgo, and February 1, 1869, the date of the exchange of the ratifications of said convention above referred to; and
Whereas said Mixed Commission, after considering said claim, the same being designated as No. 493 upon its docket, and entitled Thaddeus Amat, Roman Catholic Bishop of Monterey, a corporation sole, and Joseph S. Alemany, Roman Catholic Bishop of San Francisco, a corporation sole, against the Republic of Mexico, adjudged the same adversely to the Republic of Mexico and in favor of said claimants, and made an award thereon of nine hundred and four thousand seven hundred and 99/100 (904,700.99) dollars; the same as expressed in the findings of said court, being for twenty-one years’ interest of the annual amount of forty-three thousand and eighty and 99/100 (43,080.99) dollars upon seven hundred and eighteen thousand and sixteen and 50/100 (718,016.50) dollars, said award being in Mexican gold dollars, and the said amount of nine hundred and four thousand seven hundred and 99/100 (904,700.99) dollars having been fully paid and discharged in accordance with the terms of said convention; and[Page 784]
Whereas the United States of America on behalf of said Roman Catholic bishops above named and their successors in title and interest have since such award claimed from Mexico further instalments of said interest, and have insisted that the said claim was conclusively established and its amount fixed as against Mexico and in favor of said original claimants and their successors in title and interest under the said first-mentioned convention of 1868 by force of the said award as res judicata; and have further contended that apart from such former award their claim against Mexico was just, both of which propositions are controverted and denied by the Republic of Mexico, and the high contracting parties hereto, animated by a strong desire that the dispute so arising may be amicably, satisfactorily, and justly settled, have agreed to submit said controversy to the determination of arbitrators, who shall, unless otherwise herein expressed, be controlled by the provisions of the international convention for the pacific settlement of international disputes, commonly known as The “Hague Convention,” and which arbitration shall have power to determine—
- If said claim, as a consequence of the former decision, is within the governing principle of res judicata; and,
- If not, whether the same be just.
And to render such judgment or award as may be meet and proper under all the circumstances of the case.
It is therefore agreed by and between the United States of America, through their representative, John Hay, Secretary of State of the United States of America, and the Republic of Mexico through its representative, Manuel de Azpiroz, ambassador extraordinary and plenipotentiary to the United States of America for the Republic of Mexico, as follows:
That the said contentions be referred to the special tribunal hereinafter provided for examination, determination, and award.
The special tribunal shall consist of one arbitrator to be named as the nominee of the United States of America, and one arbitrator as the nominee of the Republic of Mexico, which arbitrators shall be authorised to select an umpire in conformity with the provisions of The Hague Convention, who shall preside over their deliberations. None of those so named shall be natives or citizens of the high contracting parties. The arbitrators to be named hereunder shall be signified by each of the respective high contracting parties to the other within sixty days after the date of this protocol. In the event of disagreement in the judgment reached an appeal may be taken by the unsuccessful party within thirty days after it shall have received the notification of the passing of such judgment. Such appeal will lie to a board of five arbitrators, two to be appointed as the nominees of each of the parties hereto, and this board shall be presided over by an umpire to be appointed in the manner provided for by the provisions of The Hague Convention, and none of such court shall be natives or citizens of the high contracting parties. Such nominees shall assemble at The Hague within sixty days after the unsuccessful Government shall have notified the other high contracting party of its intention to appeal, and they shall conclude their labors within sixty days after their session shall begin. Judgment may be rendered by a majority of said appellate court.
All vacancies occurring among those named in either court because of death, retirement, or disability from any cause, before a decision shall be reached, shall be filled in accordance with the method of appointment of the members affected, as provided by The Hague Convention, and if occurring after either of the respective courts shall have assembled, will authorise, in the judgment of the court, an extension of time for hearing or judgment, as the case may be, not exceeding thirty days.
All pleadings, testimony, proofs, arguments of counsel and findings of awards of commissioners or umpire, filed before or arrived at by the Mixed Commission above referred to, are to be placed in evidence before the court hereinbefore provided for, together with all correspondence between the two countries relating to the subject-matter involved in this arbitration; originals or copies thereof duly certified by the departments of state of the high contracting parties being presented to said new tribunal. Where printed books are referred to in evidence by either party, the party offering the same shall specify volume, edition, and page of the portion desired [Page 785] to be read, and shall furnish the court in print the extracts relied upon; their accuracy being attested by affidavit. If the original work is not already on file as a portion of the record of the former Mixed Commission, the book itself shall be placed at the disposal of the opposite party by deposit with the Secretary of State, or with the Mexican ambassador in Washington, as the case may be, thirty days before the meeting of the tribunal herein provided for.
Either party may demand from the other the discovery of any fact or of any document deemed to be or to contain material evidence for the party asking it; the document desired to be described with sufficient accuracy for identification, and the demanded discovery shall be made by delivering a statement of the fact or by depositing a copy of such document (certified by its lawful custodian, if it be a public document, and verified as such by the possessor, if a private one), and the opposite party shall be given the opportunity to examine the original in the city of Washington at the Department of State, or at the office of the Mexican ambassador, as the case may be. If notice of the desired discovery be given too late to be answered ten days before the tribunal herein provided for shall sit, then the answer desired thereto shall be filed as speedily as possible with the court herein provided for.
Any oral testimony additional to that in the record of the former arbitration may be taken by either party before any judge, or clerk of court of record, or any notary public, in the manner and with the precautions and conditions prescribed for that purpose in the rules of the joint commission of the United States of America and the Republic of Mexico, as ordered and adopted by that tribunal August 10, 1869, and so far as the same may be applicable. The testimony, when reduced to writing, signed by the witness, and authenticated by the officer before whom the same is taken, shall be sealed up, addressed to the court constituted hereby, and deposited so sealed up with the Secretary of State of the United States, to be delivered to the court herein provided for when the same shall convene.
Within sixty days from the date hereof the United States of America, through their agent or counsel, shall prepare and furnish to the Secretary of State aforesaid a memorial in print of the origin and amount of their claim, accompanied by references to printed books and to such portions of the proofs or parts of the record of the former arbitration as they rely on in support of their claim, delivering copies of the same to the embassy of the Republic of Mexico in Washington for the use of the agent or counsel of Mexico.
Within thirty days after the delivery thereof to the Mexican embassy the agent or counsel for the Republic of Mexico shall file and deliver to the Secretary of State of the United States of America in the same manner and with like references a statement of its allegations and grounds of opposition to said claim.
The provisions of Paragraphs VI and VII shall not operate to prevent the agents or counsel for the parties hereto from relying at the hearing or submission upon any documentary or other evidence which may have become open to their investigation and examination at a period subsequent to the times provided for service of memorial and answer.
The first meeting of the arbitral court hereinbefore provided for shall take place on September 1, 1902, in the quarters provided for such purpose by the International Bureau at The Hague, constituted by virtue of The Hague convention, hereinbefore referred to, at which time and place, or at such other times or places as the court may determine to sit, explanations and arguments shall be heard or presented as the court may determine, and the case be submitted. The submission of all arguments, statements of fact, and documents shall be concluded within [Page 786] thirty days after the time provided for the meeting of the court (unless the court shall order an extension of thirty days) and its decision and award announced within thirty days after such conclusion, and certified copies thereof delivered to the agents or counsel of the respective parties and forwarded to the Secretary of State of the United States and the Mexican ambassador at Washington, as well as filed with the Netherland minister for foreign affairs.
Should the decision and award of either tribunal be against the Republic of Mexico, the findings shall state the amount and in what currency the same shall be payable; and in the further event that the former award shall not be treated as affording an established judicial basis upon which the tribunals hereby constituted, or either of them, can rest their determination, then such tribunals, or either of them, shall find for the claimants for such amount as under the evidence may be just. They may award interest upon arrearages, if any, found to be due, if under all the circumstances an award for interest shall appear just and equitable. Such final award, if any, shall be paid to the Secretary of State of the United States of America within eight months from the date of its making.
The agents and counsel for the respective parties may stipulate for the admission of any facts, and such stipulation, duly signed, shall be accepted as proof thereof.
The award ultimately given hereunder shall be final and conclusive as to the matters presented for consideration.
Done in duplicate in English and Spanish at Washington, this-day of May, A. D. 1902.