Report of Jackson H. Ralston, agent of the United States and of counsel, in the matter of the Pious Fund Case.

Hon. John Hay,
Secretary of State of the United States, Washington, D. C..

Sir: I have the honor to submit the following report as agent of the United States in the matter of the claim of the Pious Fund of the Californias, submitted to arbitration by the United States and the Republic of Mexico under the terms of the protocol between the Hon. John Hay, Secretary of State of the United States, and Senor Don Manuel de Azpiroz, ambassador extraordinary and plenipotentiary to the United States of America for the Republic of Mexico, concluded at Washington on May 22, 1902, and ratified by the Mexican Senate May 30, 1902.

Before entering into an account of my own duties in connection therewith, it may be proper to recall some of the circumstances attending the claim in question.

As early as the year 1697 certain members of the Order of Jesus, with the permission of the King of Spain and upon the condition that they should not have power to draw against or from the royal revenues for such purpose, undertook the conversion of the Indians of the Californias, and to effect this end collected considerable sums of money and entered upon their work. From time to time large contributions were made to assist the development of the missions established or designed to be established by them or by their successors, the total of such contributions down to the year 1731 reaching $120,000. In 1735 properties valued at about $400,000 were deeded for the same purpose, and in 1747 an additional contribution, finally amounting to the sum of $120,000, was made. Later, and about the year 1784, some $400,000 reached the fund from another source.

These moneys, to which were added various smaller contributions from time to time from other sources, constituted what became known as “the Pious Fund of the Californias,” which, during the earlier portion of its existence, was entirely managed and controlled by the Order of Jesus. Later, and upon the expulsion of that order from the dominions of the King of Spain, that Monarch acted as trustee, delivering the charge of the missions of Upper California to the Franciscans, and of Lower California to the Dominicans. When Mexico threw off her allegiance to Spain, the Mexican Government, through a junta, managed the fund for the pious uses intended by the founders. On September 19, 1836, Mexico enacted a law looking toward the establishment of a bishopric for the two Californias, and providing that the person selected therefor should receive from the public revenues [Page 10]$6,000 per annum, with certain additional allowances, and further providing that “the property belonging to the Pious Fund of the Californias shall be placed at the disposal of the new bishop and his successors, to be by them managed and employed for its objects or other similar ones, always respecting the wishes of the founders of the fund.”

The Mexican legation to the Holy See, on April 6, 1840, notified the Papacy that “the Mexican Government had taken all proper measures so that the new prelate may not lack a decent income, which is necessary to sustain the expenses and respect and the dignity of a bishop, and in addition, according to a decree of Congress, the Pious Fund destined for the support of missions in the Californias is to be placed at his disposal.”

Immediately after receiving this notification, and in consequence thereof, on April 27, 1840, the bishopric of the Californias was created, and Francisco Garcia Diego, last president of the missions, appointed thereto, he assuming his office in the latter part of the year.

On February 8, 1842, by decree of that date, the Mexican Government repealed the law of September 19, 1836, placing the management of the Pious Fund in the hands of the bishop of the diocese, and reassumed its direction, as the decree said, “for the purpose of carrying out the intention of the donors in the civilization and conversion of the savages.”

On October 24 of the same year a further decree was passed, formally incorporating the properties of the Pious Fund into the national treasury, and directing the sale of the real estate and other property for the capital represented by their annual product at 6 per cent per annum, and acknowledging an indebtedness of 6 per cent per annum on the total proceeds of the sale, at the same time pledging the revenue from tobacco to the payment of the income corresponding to the capital of said fund.

After the purchase of Upper California by the United States from Mexico in 1848, Mexico failed to pay any part of the income to the proper recipients in Upper California, and as a consequence, upon the formation of the mixed commission, under the treaty of 1868, to adjust claims of citizens of the United States or of Mexico against the other Government, the archbishop of San Francisco, and the bishops of Monterey and Grass Valley, through the American agent, presented their claim against the Republic of Mexico for a proper portion of the income of said fund, bringing it to the attention of the mixed commission on March 30, 1870, a formal memorial being filed December 31, 1870. A large amount of evidence was filed with the memorial, and Mr. Cushing, on behalf of Mexico, on April 24, 1871, filed a motion to dismiss for the reasons shown in the Transcript on page 67. After full consideration of this motion and of all the evidence adduced on behalf either of the United States or Mexico, the American arbitrator (Transcript, p. 523 et seq.) found in favor of the claimants for $904,700.99, and the Mexican arbitrator for the defendant Government (Transcript, p. 527 et seq.).

Because of this difference of opinion, the case was submitted to the umpire, Sir Edward Thornton, who, on November 11, 1875, awarded against Mexico and in favor of the claimants the sum of $904,700.99 in Mexican gold, being twenty-one years’ interest at the rate of $43,080.99 per year; or, in other words, 6 per cent upon one-half of the capitalized value of the Pious Fund, it being considered by him that the proper [Page 11]apportionment of interest in the fund itself between Upper and Lower California would be one-half to each (Transcript, p. 606). Attention being called to an error in computation, this sum total was, by the further order of the umpire, reduced to $904,070.99 (Transcript, p. 650). This award was duly paid by Mexico, although the Mexican secretary of foreign affairs, by a letter, on pages 77 and 78 of the Diplomatic Correspondence, said that though the final award in the case only refers to interest accrued in 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.” This position Secretary Fish (Diplomatic Correspondence, p. 79) declined to entertain. Mexico, on January 20, 1890, made its last payment on account of the Pious Fund award, and shortly thereafter, and on August 3, 1891, Hon. William F. Wharton, as Acting Secretary of State, took up the matter of the claim for interest which had accrued since 1869 (Diplomatic Correspondence, p. 23); the same subject being renewed by later Secretaries of State, including Hon. James G. Blaine, Hon. John W. Foster, Hon. Walter Q. Gresham, Hon. John Sherman, Hon. W. R. Day, and, finally, by yourself.

As the immediate result of the work performed under your direction, the protocol of May 22, 1902, was entered into with Mexico (Session Statutes, Fifty-seventh Congress, first session, Treaties, p. 142), providing for the reference to a tribunal, to be constituted in general conformity with the provisions of the Hague Peace Convention, of the dispute between the two countries, such tribunal having the power to determine:

  • “1. If said claim, as a consequence of the former decision, is within the governing principle of res judicata, and
  • “2. If not, whether the same be just;
  • “And to render such judgment and award as may be meet and proper under all the circumstances of the case.”

Pursuant to the terms of this protocol, the United States served upon Mexico on July 3, 1902, a copy of the memorial, setting forth “the origin and amount of their claim,” and on August 12, 1902, Mexico delivered to the Department of State of the United States “a statement of its allegations and grounds of opposition to said claim.” Meanwhile the United States had prepared and printed a copy of the proceedings had before the Mixed Commission of 1868, the work above referred to, on behalf of the United States, having been performed under my direction, pursuant to appointment by you as agent in the case under date of May 26, 1902.

Following the terms of the protocol, the United States selected as its nominees for the special tribunal to determine the matter in controversy, Prof. F. de Martens, of Russia, member of the Permanent Court of Arbitration, and the Right Hon. Sir Edward Fry, of England, likewise member of said court, while on behalf of Mexico there were named Mr. T. M. C. Asser and Jonkheer A. F. de Savornin Lohman, both of Holland, likewise members of said court, Mr. Asser taking the place of Sig. Guarnaschelli, of Italy, who has declined the position. The four gentlemen so named met at the hotel of the Permanent Court of Arbitration on Monday, September 1, 1902, for the selection of the fifth, who, under the terms of The Hague Peace Convention, was entitled to act as president, and their choice fell upon Prof. Henning Matzen, of Copenhagen, member of the Permanent Court of Arbitration. [Page 12]Professor Matzen accepted the duties imposed upon him, and the court opened its first formal session at The Hague on Monday, September 15, 1902.

The judges upon assembling were greeted in their private chamber by Baron van Lynden, president of the administrative council of the court, and after the exchange of felicitations, the court was formally opened, the address of the president made at that time being replied to by myself, as agent on the part of the United States, and Señor Don Emilio Pardo, as agent on behalf of the Mexican Republic.

His Excellency L. H. Ruyssenaers, secretary-general of the court, was appointed secretary, and to assist him Mr. Walter S. Penfield and Mr. Luis Pardo acted, respectively, as the American and Mexican secretaries.

The sessions for the hearing of arguments extended over ten days, occurring on September 15, 17, 22, 23, 24, 26, 27, 29, 30, and October 1, on which latter date the discussions were closed, the decision being finally given at a meeting on October 14, 1902.

In matters of formal precedence, the preference was given to the United States, the idea being to place the national representatives according to the alphabetical order indicated by the names of their respective countries, and “Etats-Unis d’Amérique” preceding “Etats-Unis Mexicains.”

The official language of the court was French, but as all of the arbitrators were familiar with both French and English, the right was extended to the representatives of the United States to address the court in English.

The discussion was opened by Senator William M. Stewart, of Nevada, who considered very fully and clearly the facts of the case, making some incidental observations with relation to the law applicable thereto. He was followed by Mr. Garret W. McEnerney, who analyzed thoroughly the facts surrounding the creation and growth of the Pious Fund and the action of Mexico and Spain with relation thereto, discussing somewhat as well the subject of res judicata. As American agent and as of counsel, I followed Mr. McEnerney, devoting myself to the questions of law arising in connection with the American contentions upon the subject of res judicata and also the application of that theory to arbitral awards. M. Delacroix, of Belgium, of counsel for Mexico, followed with a lengthy analysis of the facts from the Mexican standpoint, and in turn was succeeded by M. Beernaert, who discussed the subject of res judicata, the Mexican opening being concluded by Señor Don Emilio Pardo, the Mexican agent. In reply for the United States, M. Descamps, of Belgium, presented his views with reference to the subject of res judicata or chose jugée as understood by the civil law, and the case of the United States was concluded by Judge William L. Penfield, Solicitor of the Department of State, who summed it up largely from an international standpoint. Under the rules of practice established by the court, the right to conclude was given to the defendant, and MM. Delacroix and Beernaert closed the case with discussions in the line of their original contention.

Upon the conclusion of the arguments on October 1, an adjournment was had for consideration and preparation of the opinion, the court reassembling, after notice to the parties, on October 14, as indicated, to deliver its judgment, at which time there were present [Page 13]the representatives of the United States and Mexico, and as well a very large number of the members of the Permanent Administrative Council and others at The Hague interested in international affairs.

It is a source of gratification to me to be able to state that all of the leading contentions indulged in on behalf of the United States were unanimously sustained by the tribunal. In the first argument submitted by the American agent it had been maintained, among other things, that “the amount of the proper judgment in this case was fixed by the terms of the former award;” that an arbitral court had “inherent power to pass upon its own jurisdiction,” and particularly was this true as to the Mixed Commission of 1868; that an arbitral decision, more especially the decision of a Mixed Commission, was entitled to be given the effect of res judicata as to the matters passed upon by it as fully as the judgments of courts established by a State, and that the former award was to be looked at in its entirety in order to determine as to what it was res judicata. All of these positions, important in themselves and important as bearing upon the future history of international arbitrations, received the fullest indorsement.

In addition to supporting the above propositions, all the counsel for the United States contended that the Pious Fund controversy was eminently international in character, and that national laws of prescription could not be invoked to defeat such a claim as ours, presented before an international body. These positions also received the explicit sanction of the tribunal. The only point upon which the United States could be considered as having failed of success was as to the currency in which the award ought to be paid, the tribunal declaring that payment should be made in the legal currency of Mexico, and as to its direction that payment be made in gold, the award of Sir Edwin Thornton was not to be considered as res judicata, except with relation to the years embraced within its terms, payment in gold relating to the execution of the award, and not to the foundation of the right in controversy. We had believed that there were many equitable considerations, such as long delay in the payment made by Mexico, the gradual fall in the price of silver during the time, the fact that gold had remained constant in value, and the property originally taken was valued in gold, even at less than its true value, etc., which would have justified a different view, but we accepted cheerfully the findings of the tribunal. The award was highly satisfactory, in that it directed perpetual payment of the yearly annuity, thus by its express language settling forever the controversy.

As a matter of convenience, I attach immediately to this report an English translation of the award.

By the terms of the protocol a period of eight days was allowed within which revision could be asked, but inasmuch as by the further provision of The Hague Convention such revision could only be demanded on the ground of “the discovery of some new fact calculated to exercise a decisive influence on the award, and which at the time the discussion was closed was unknown to the tribunal and to the party demanding the revision,” no appeal therefor was possible, the case having been decided upon a proposition of law, and none was sought.

All matters submitted by the United States to the Permanent Court of Arbitration were presented in print, a method which facilitated and [Page 14]lightened the work of the court, and by hastening the determination of the case proved to be highly economical.

On the first day the American agent laid before the court the printed volume containing the transcript of the proceedings in the case of Alemany et al v. Mexico, before the mixed commission of 1868, diplomatic correspondence between the two Governments relative to the Pious Fund, and the memorial of the United States; also submitting an appendix containing the various treaties and conventions between Mexico and the United States, the rules of practice before the former mixed commission and The Hague Peace Convention. There was also added a replication to the answer of Mexico, with certain exhibits attached thereto of presumed importance and value to the court, as well as the statement and brief of the agent and counsel of the United States, and briefs prepared by Senator Stewart and Mr. Kappler and by Messrs. Doyle & Doyle. Some objection was made to the submission of the replication as being a document not contemplated by the protocol. This was withdrawn, and it was submitted, the right to respond thereto being reserved to Mexico. Later other documents were presented, either as independent pieces of evidence on the part of the United States or in reply to demands for discovery made by Mexico. In this connection it is to be noted that the two demands for discovery submitted by Mexico were fully and completely answered by the United States, even though not considered pertinent to the issues, while similar demands on behalf of the United States met with only partial response, it being stated by the agent of Mexico that fuller answer within the limited time was impossible because of the extent of the records to be examined and the confusion in which some of them were found.

I shall not in this report, brief in character as it is, take space to discuss the questions submitted to the Permanent Court of Arbitration. The considerations in support of, or antagonism to, the positions taken by the United States are set forth with the utmost fullness of detail in the briefs and record of proceedings hereto attached, and no useful purpose would be subserved by their recapitulation. The result, as above indicated, was in a high degree satisfactory to the United States and justifies the wisdom of the course pursued by your Department in insisting upon a settlement of this dispute, so long a cause of difference between the two countries.

The relations between the agent and the counsel of the United States and the court and representatives of the opposing Government were at all times agreeable and friendly, and the proceedings were marked by no incident of an unpleasant character. It is to be believed that an important element contributing to this condition was the entirely neutral character of the court, the protocol having provided that the nationals of the contending parties should not be eligible for membership. The tribunal therefore regarded itself as in no degree composed of the representatives of either party, but entirely divorced from any bias which might have been assumed to exist because of the circumstances of the appointment of its members. I am confident that if the precedent in this respect now set be followed in future arbitrations under The Hague Peace Convention, much good may be hoped therefrom.

The two nations concerned in the dispute may congratulate themselves upon having appeared before able, painstaking, conscientious [Page 15]judges, whose devotion to duty, clearness of comprehension, and celerity of action can not fail to do much to advance the cause of international arbitration. At the same time it is a pleasure to add that the secretary-general of the court, His Excellency L. H. Ruyssenaers, and the assistant secretary, Mr. J. M. Röell, were of the greatest possible assistance to the court, agents, and counsel, meeting most admirably the varied and exacting requirements of their positions.

I desire to tender my most sincere thanks to yourself and to all officials and employees of the Department of State for the cordial assistance rendered in the prosecution of this case. The utmost credit must be given to Judge William L. Penfield, Solicitor of the Department, for the able, earnest, and assiduous attention given by him to the controversy. The Department furnished for its prosecution at The Hague Mr. H. B. Armes, Mr. Walter S. Penfield, Miss Margaret M. Hanna, and Miss Victoria G. Peacock (the last two translators), and in addition I had the aid of Miss L. May Larkin as stenographer. Mr. W. T. S. Doyle, aside from important work performed by him as attorney, gave most efficient help as a translator. All of those mentioned labored with earnestness and enthusiasm to bring about a successful result, and without their assistance the large amount of work indicated by the accompanying documents could not have been completed. As it is, with all the factors mentioned, we may feel that nothing was neglected which might tend to bring about the favorable result finally achieved.

From Mr. Stanford Newell, envoy extraordinary and minister plenipotentiary of the United States to the Netherlands, and Mr. John W. Garrett, secretary of the legation, many valued favors and much needed assistance were thankfully received. Other diplomatic representatives cheerfully responded to all calls made upon them.

I submit at this time, to be bound herewith, copies of all documents presented before the Permanent Court of Arbitration not contained in the volume heretofore printed, the documents so submitted to be printed, arranged, and bound with this report in the manner indicated in the preceding table of contents.

Renewing my thanks to you for your constant courtesy, I have the honor to be,

Very respectfully, your obedient servant,

Jackson H. Ralston,
Agent of the United States in the Pious Fund Case, and of Counsel.

translation of the sentence of the permanent court of arbitration in the matter of the pious fund of the californias, rendered october 14, 1902.

The tribunal of arbitration constituted by virtue of the treaty concluded at Washington, May 22, 1902, between the United States of America and the United Mexican States.

Whereas, by a compromis (agreement of arbitration) prepared under the form of protocol between the United States of America and the United Mexican States, signed at Washington, May 22, 1902, it [Page 16]was agreed and determined that the differences which existed between the United States of America and the United Mexican States, relative to the subject of the “Pious Fund of the Californias,” the annuities of which were claimed by the United States of America for the benefit of the Archbishop of San Francisco and the Bishop of Monterey, from the Government of the Mexican Republic, should be submitted to a tribunal of arbitration, constituted upon the bases of the convention for the pacific settlement of international disputes, signed at The Hague, July 29, 1899, which should be composed in the following manner—that is to say:

The President of the United States of America should designate two arbitrators (nonnationals), and the President of the United Mexican States equally two arbitrators (nonnationals); these four arbitrators should meet September 1, 1902, at The Hague, for the purpose of nominating the umpire, who at the same time should be of right the president of the Tribunal of Arbitration.

Whereas the President of the United States of America named as arbitrators:

The Right Hon. Sir Edward Fry, LL. D., former member of the court of appeals, member of the privy council of His Britannic Majesty, member of the Permanent Court of Arbitration; and

His Excellency M. De Martens, LL. D., privy councilor, member of the council of the imperial ministry of foreign affairs of Russia, member of the Institute of France, member of the Permanent Court of Arbitration.

Whereas the President of the United Mexican States named as arbitrators:

Mr. T. M. C. Asser, LL. D., member of the council of state of the Netherlands, former professor at the University of Amsterdam, member of the Permanent Court of Arbitration; and

Jonkheer A. F. de Savornin Lohman, LL. D., former minister of the interior of the Netherlands, former professor at the Free University at Amsterdam, member of the second chamber of the States-General, member of the Permanent Court of Arbitration; which arbitrators at their meeting, September 1, 1902, elected, conformably to articles 32–34 of the Convention of The Hague of July 29, 1899, as umpire and president of right of the Tribunal of Arbitration,

Mr. Henning Matzen, LL. D., professor at the University of Copenhagen, councilor extraordinary to the supreme court, president of the Landsthing, member of the Permanent Court of Arbitration; and

Whereas, by virtue of the protocol of Washington of May 22, 1902, the above-named arbitrators, united in tribunal of arbitration, were required to decide:

If the said claim of the United States of America for the benefit of the Archbishop of San Francisco and the Bishop of Monterey was within the governing principle of res judicata by virtue of the arbitral sentence of November 11, 1875, pronounced by Sir Edward Thornton, as umpire.
If not, whether the said claim was just, with power to render such judgment as would seem to them just and equitable.

Whereas, the above-named arbitrators having examined with impartiality and care all the documents and papers presented to the tribunal of arbitration by the agents of the United States of America and of the United Mexican States, and having heard with the greatest attention [Page 17]the oral arguments presented before the tribunal by the agents and the counsel of the two parties in litigation;

Considering that the litigation submitted to the decision of the tribunal of arbitration consists in a conflict between the United States of America and the United Mexican States, which can only be decided upon the basis of international treaties and the principles of international law;

Considering that the international treaties concluded from the year 1848 to the compromis of May 22, 1902, between the two powers in litigation, manifest the eminently international character of this conflict;

Considering that all the parts of the judgment or the decree concerning the points debated in the litigation enlighten and mutually supplement each other, and that they all serve to render precise the meaning and the bearing of the dispositif (decisory part of the judgment) and to determine the points upon which there is res judicata and which thereafter can not be put in question;

Considering, that this rule applies not only to the judgments of tribunals created by the State, but equally to arbitral sentences rendered within the limits of the jurisdiction fixed by the compromis;

Considering, that this same principle should for a still stronger reason be applied to international arbitration;

Considering, that the convention of July 4, 1868, concluded between the two States in litigation, had accorded to the Mixed Commission named by these States, as well as to the umpire to be eventually designated, the right to pass upon their own jurisdiction;

Considering, that in the litigation submitted to the decision of the Tribunal of Arbitration, by virtue of the compromis of May 22, 1902, there is not only identity of parties to the suit, but also identity of subject-matter, compared with the arbitral sentence of Sir Edward Thornton, as umpire, in 1875, and amended by him October 24, 1876;

Considering, that the Government of the United Mexican States conscientiously executed the arbitral sentence of 1875 and 1876 by paying the annuities adjudged by the umpire;

Considering, that since 1869 thirty-three annuities have not been paid by the Government of the United Mexican States to the Government of the United States of America, and that the rules of prescription, belonging exclusively to the domain of civil law, can not be applied to the present dispute between the two States in litigation;

Considering, so far as the money is concerned in which the annual payment should take place, that the silver dollar, having legal currency in Mexico, payment in gold can not be exacted, except by virtue of an express stipulation;

Considering that in the present instance such stipulation not existing, the party defendant has the right to free itself by paying in silver; that with relation to this point the sentence of Sir Edward Thornton has not the force of res judicata, except for the twenty-one annuities with regard to which the umpire decided that the payment should take place in Mexican gold dollars, because question of the mode of payment does not relate to the basis of the right in litigation, but only to the execution of the sentence.

Considering, that according to article 10 of the protocol of Washington, of May 22, 1902, the present Tribunal of Arbitration must determine, in case of an award against the Republic of Mexico, in what money payment must take place;

[Page 18]

For these reasons the Tribunal of Arbitration decides and unanimously pronounces as follows:

1. That the said claim of the United States of America for the benefit of the Archbishop of San Francisco and of the Bishop of Monterey is governed by the principle of res judicata by virtue of the arbitral sentence of Sir Edward Thornton, of November 11, 1875; amended by him October 24, 1876.

2. That conformably to this arbitral sentence, the Government of the Republic of the United Mexican States must pay to the Government of the United States of America the sum of $1,420,682.67 Mexican, in money having legal currency in Mexico, within the period fixed by article 10 of the protocol of Washington of May 22, 1902.

This sum of $1,420,682.67 will totally extinguish the annuities accrued and not paid by the Government of the Mexican Republic—that is to say, the annuity of $43,050.99 Mexican from February 2, 1869, to February 2, 1902.

3. The Government of the Republic of the United Mexican States shall pay to the Government of the United States of America on February 2, 1903, and each following year on the same date of February 2, perpetually, the annuity of $43,050.99 Mexican, in money having legal currency in Mexico.

  • Henning Matzen.
  • Edw. Fry.
  • Martens.
  • T. M. C. Asser.
  • A. F. de Savornin Lohman.