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Observations on the answer of Mexico to the memorial of the Untied States.

[Submitted by Messrs. Doyle and Doyle.]

This document has rather the character of an argument than a pleading; in the modern sense. It does not, so far as we can discover, either controvert or confess and avoid a single allegation of fact in the memorial, but denies the effect of the former decision as res judicata, and seeks to deduce from the evidence given on the former trial a different verdict from what the tribunal then arrived at, as if this were a court of appeal competent to review that former decision, as well on the facts as on the questions of law involved. Such, however, is not the office of this court. The only question it has to decide with reference to the tribunal of 1868 is sharply defined by the protocol under which it is acting, and reads: “Is said claim (the claim on behalf of the Catholic Church of Upper California), as a consequence of the former decision, within the governing principle of res judicata?”

What is the governing principle of res judicata? We think it may be defined as a legal principle declaring that “the truth of the disputed right having once been inquired into and decided by the final judgment of a competent legal tribunal, having jurisdiction of the parties and the controversy, can not thereafter be called in question by either of them or by any party claiming or deriving title under either of them.

In his answer to the memorial the pleader seeks, in the application of the rule “res judicata pio veritate accipitur,” to distinguish between decisions of courts of justice organized by authority of the sovereign for the administration of justice, which he terms “decisions pronounced by judges invested with lawful authority to decide the case, its reasons and consequences,” and these “pronounced by arbitrators, who have no actual jurisdiction nor any greater powers than what are granted to them by the terms of the submission,” and he claims, with respect to the latter, a most strict interpretation of everything relating to an action or defense founded on res judicata.

A general discussion of the differences in this respect between the consequences of an arbitral decision and those of the judgment of a court of law would be inappropriate here; for while there are many different varieties of arbitration, from the wager, left to the offhand decision of some third person, up to the international tribunal, which, under the most solemn responsibilities, decides between sovereigns controversies of the greatest magnitude and highest moment (such as the two arbitrations between the United States and Great Britain under the treaty of Washington), the court is not here required to lay down any general rule for such cases, nor for any particular class of them. We are only concerned here with the value, as res judicata, of a decision pronounced by the international tribunal created by the [Page 336]convention between the United States and Mexico of July 4, 1868. For this we look naturally, first, to the terms of the convention which called the tribunal into existence and defined its powers. In it we find that the commissioners were required by Article I, before proceeding to business, to make and subscribe a solemn declaration that they will “impartially and carefully examine and decide to the best of their judgment and according to public law, justice, and equity, without fear, favor, or affection to their own country, upon all such claims above specified, as shall be laid before them,” etc. The umpire also is to “make and subscribe a solemn declaration in form similar” to the above.

The commissioners were provided with two secretaries and empowered to hear testimony and decide not only each one of the cases presented to them, but also, by Article III, the question of their own jurisdiction and authority, if questioned. “It shall be competent,” says the convention, Article III, “for the commissioners conjointly (or for the umpire, if they differ) to decide in each case whether any claim has or has not been duly made, preferred, and laid before them, either wholly or to any and what extent” and by Article II “the parties” solemnly and sincerely engage to consider the decision of the commissioners, conjointly, or of the umpire, as the case may be, as absolutely final and conclusive upon each claim decided upon by them or him respectively and to give full effect to such decisions without any objection, evasion, or delay whatsoever. The Spanish is, if possible, even stronger; they promise—

Considerar la decision de los commisionados, de acuerdo, ó del arbitro segun fuese el caso, como absolutamente final y definitiva, respecto de cada una de las reclamaciones falladas por los conimissionados, ó del árbitro, respectivamente, y á dar entero cumplimiento á tales decisiones sin objecion, evasion ni delacion ninguna.

These are unusually strong expressions on the subject of the effect of the awards, as will be seen by comparison with other conventions of like nature.

We are not then treating of any informal or extemporized arbitration, but of the determination of a tribunal constituted in all respects on the lines of a high court of justice, composed, too, of men of exalted character, and distinguished as well for moral and intellectual qualities as for learning. True, it derived its authority from the consent of the two Governments; but, according to the American idea, on which both the litigant States are founded, the consent of the governed is the foundation of all the just powers of government. The tribunal created by the convention of 1868 may be called, if you please, a commission of arbitration, but it was in fact an international court of the highest rank and dignity, just such a court as the present one. It dealt with over eight hundred cases, all of them of magnitude and importance, rendering judgments for and against two sovereign States.

To ascribe to the decisions of such a tribunal less authority or less effect than to those of any ordinary court of justice is to dwarf and belittle the whole subject. If its adjudications did not possess all the authority of res judicata, neither will those of the present court, for it also derives its jurisdiction only from consent of parties, though, unlike the other, it is constituted, so far as its personnel is concerned, ad hoc only and has jurisdiction of but a single case. Now, we ask with all confidence, is it possible that, should the decision in the present case be against the United States, the relators will be at liberty again next [Page 337]year, or a year thereafter, to put forward another claim for subsequent interest, claiming that the whole question is still open to reexamination and that the decision your honors make is that of mere arbitrators and. does not constitute a res judicata? It is incredible that this court will, in advance, set so light a value on its own judgment, and it is certain that that of the court whose judgment is under consideration has all the weight and force that one to be pronounced here will have.

The pleader who drew the answer of Mexico, or at least this portion of it, lost sight, too, of the instruction to be derived from the expression of his illustrious client, the Mexican foreign secretary, who, in his letter to Mr. Powell Clayton of November 28, 1900 (Dip. Cor., p. 35 and seq.), said, with characteristic directness (p. 39):

Que es un principle admitido en todas las legislaciones, y perteneciente al derecho Romano, el de res judicata pro veritate accipitur, no habrá, de seguro, quien lo niegue. Tampoco se disputa que un tribunal o juez, establecido por Arbitraje internacional, comunica a sus redoluciones pronunciados dentro de los limites de su jurisdiccion (como la expresa la cita heeha por el Señor McCreery) la autoridad de cosa juzada; pero que deba darse, en la practica, la misma fuerza que á lo directamente resulto en la sentencia para terminar el litigio, á las consideraciones ó premisas, no enumeradas expresamente como puntos decidos por el juez, sino simplemente referidos por el en los fundamentos de su fallo, ó supuestos como antecedentes necesarios, por el interseado que interpreta la sentencia, eso es cosa muy diferente y sobre la cual no puede haber el mismo acuerdo.

We quote this passage in the language of its author because, in our opinion, the English version, though generally faithful and idiomatic, does not at this point fully convey the exact sense of the original. The word “legislaciones” in the first sentence is not, we think, properly rendered by legislation, for the author is not speaking of legislation, but of jurisprudence; it rather means systems of law; and the words “las consideraciones ó premisas, no enumeradas, expresamente como puentos decidados por el juez, sino simplemente referidos por él, en los fundamentos de su fallo, ó supuestos como antecedentes necessaries, por el enteresado que interpreta la sentencia” are not adequately expressed by the English version on page 31 of the diplomatic correspondence. We retranslate the paragraph here, from which the precise extent and materiality of this criticism will appear. That“res judicata pro veritate accipitur” a principle of the Roman law, is admitted in every system of jurisprudence, is undeniable; nor is it denied that a tribunal established for international arbitration gives to its judgments pronounced within the limits of its jurisdiction (in the language of the authority cited by Mr. McCreery) the force of res judicata; but that in practice the same authority attributed to the judgment which terminated the litigation is to be given to considerations or facts leading up to it, not expressly mentioned by the judge as decided, but only referred to by him in reasoning out his determination, or assumed as necessary antecedents to it, by the interested party, invoking it, is quite a different thing, and one on which the same consensus of opinion can not be expected. I leave to the judgment of any lawyer who is a good Spanish scholar whether this is not the true sense of the passage in question. In it the words “no enumeradas expresamente como puntos decididos por el juez” (not expressly mentioned by the judge, as decided) are material and, indeed, controlling. Now, it is certain that the tribunal of 1868, in order to decide the case before it, had necessarily to determine the capital of the fund, the rate of interest it bore, and the length of time elapsed; [Page 338]for the demand was distinctly for interest, as such, and the award followed it; hence it was impossible to fix on the amount due without a computation of which those three elements formed the basis. And we are not left in any uncertainty as to what the court decided with respect to them. We have but to read page 526 of the Transcript, where, in the opinion of Mr. Commissioner Wads worth (in which the umpire concurs, p. 609), we find that he recognized the capital of the Pious Fund to be $1,436,033, the rate of interest on it 6 per cent per annum, and the time elapsed twenty-one years. These facts were, therefore, necessary parts of the decision, and are expressly mentioned by the court as such. The case therefore comes plainly within even the lines laid down by the honorable Mexican secretary himself.

But, says the pleader, who evidently sees the weakness of his first position, these constituent items, amount of capital, rate of interest, and length of time, are not contained in what is termed the decisory part of the judgment. So that how clear soever the ascertainment and decision of such constituent facts, or however plain the announcement of such decision by the court, unless it be expressed in a particular portion of the decision, it is of no effect. The origin of this strange idea is, we believe, to be found in the enactment of the French constituent assembly of 4th germinal, 1790, cited on page 6 of our points heretofore submitted; but what authority has enacted, or could enact, forms to be observed by international tribunals? They make their own rules and devise their own forms of pleading and procedure, controlled only by the conventions which give them birth.

A witty Frenchman said that while it is true that divine Providence governs this world, it is also a fact that it ordinarily makes use of France for the purpose. Even such a wag as he would scarcely claim for French enactments the control of international tribunals. The question for us, therefore, is, what did the tribunal of 1868 decide in this respect? not in what paragraph or portion of its judgment is it found. Are we seriously asked to believe that the decision by such a tribunal on controverted facts shall depend for its validity on whether it is found on page 7 or page 8 of the opinion of the court or if it is not stated in the precise form prescribed by the French constituent assembly for the courts of that country when remodeling its judicial system and practice a century ago? We can not think so, and find no ground for such extravagant respect for mere forms, which are neither spoken of nor referred to in the mutual covenants of the two nations, which agree to consider the decision of the commissioners conjointly, or of the umpire, as the case may be, as absolutely final and conclusive and to give full effect to such decisions without evasion or delay. How can such effect be given if, on a supplemental bill for subsequent installments of the same interest, on the same capital, the losing party is at liberty to reopen and retry the whole question of liability already tried and determined, and this on the very same evidence? One of the logical effects of a judgment by a competent court as a controverted case is to establish the right on the basis of res judicata, the most solid known to the law. To refuse to give this effect to a judgment is to deny it more than half its value in violation of the convention.

A suggestion is made on page 7 of Mexico’s answer that the United States has expressly repudiated the application of the doctrine of res judicata to the awards of international tribunals, referring to a correspondence [Page 339]with the Spanish minister in 1887 in support of his assertion. But this is an entire mistake, resulting from the same failure to recognize the difference between the rule of stare decisis applied to questions of law and the maxim as to the conclusiveness of res judicata as to the facts decided. The discussion related to certain cotton belonging to the Spanish subjects captured and confiscated by the United States after Lee’s surrender but before the final close of hostilities. The Spanish minister quoted, in support of his views of the law applicable to the case, decisions of the international commission which sat at Halifax to hear cases regarding the Newfoundland fisheries, which he thought affirmed legal principles favorable to his clients. Mr. Bayard, in his reply, says to Mr. Muriaga:

I must be allowed to remind you that the decisions of international commissions are not to be regarded as establishing principles of international law.

The whole passage is instructive, but wholly fails to touch the question of res judicata.

In the opening of the answer the pleader traces the succession to the administrations or management of the trust estate called the Pious Fund through the King of Spain to the Government of Mexico as one of the points on which we agree with him. The fact that King Charles III of Spain, by an act of arbitrary power as cruel and tyrannical as any that history records, seized upon the properties of the Pious Fund, extruded the trustees selected by the donors, and thrust himself into their places, is true. He became thereby trustee de facto of the fund, and, therefore, we have rightly claimed, and he himself admitted, that he thus became subject to all the duties and responsibilities and exercised the powers of such trustee. We do not wish, however, to be regarded as conceding the moral rightfulness of his succession.a

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That by this act of cruelty, however, the King of Spain did successfully intrude himself into the office of trustee of the Pious Fund is not disputed. But he did not succeed to it by the will of the donors or founders, but by his own act of usurpation. He exercised the powers of the original trustees, and subjected himself to the responsibilities of the office. The beneficiaries remained unchanged, and the trustee, as such, had no power to make any change in the terms of the trust.

Mexico succeeded to the sovereignty of Spain and to the position of trustee of the Pious Fund, and to the latter by a title, which, if not better, was infinitely more honorable than that of her predecessor.

But in considering and discussing this we must not confound the powers of the trustee with those of the sovereign. The latter had the power to confiscate the fund or devote its proceeds to any other purposes than those designed by its founders, but it must be shown that such was done by an act of sovereignty, and had such been done, by such an act, we would have been without redress. But neither Spain nor Mexico did anything of the kind; on the contrary it has been abundantly shown that both those Governments recognized the duty of applying the fund sacredly to the objects designated by the founders. Misappropriations of the fund were the unauthorized acts of individuals. Wherever the Spanish Crown or the Mexican Government applied any portion of the Pious Fund to secular uses it was recognized as a loan; taken “con calidad de reintegro” and usually the rate of interest was expressed at the time. It was ordinarily 6 per cent, but in one instance as low as 3.

The other matters set up in the answer seem but repetitions of grounds of defense urged on the former trial, more or less varied in form. They were answered in our arguments before the commissioners and before the umpire in that case, which we could hardly expect to improve even if the exigencies of time permitted the attempt; and we therefore beg to refer to them where they appear in the printed volumes: In the Transcript at pages 99, 462 to 477, and 557 to 574, as well as the arguments on pages 575 and 594, and in the Diplomatic Correspondence at pages 12 to 21, 58 to 66, and those of our then associate, pages 51 to 58.

Very respectfully submitted.

  • John T. Doyle,
  • W. T. Sherman Doyle,
    Of Counsel for the Prelates Representing the Church.

  1. The act by which he intruded himself into the place is briefly told, as follows: Having secretly decided on the measure, letters were sent to every city where the Jesuits had an establishment of any kind, addressed to the chief local authorities, and only to be opened on a day and hour indicated on the envelope. Under the royal order inclosed every college, noviciate, or other house of the Jesuits was at midnight surrounded by a guard of soldiers, and the inmates, roused from sleep in the dead hour of the night, were assembled in the chapel. There they were informed that His Majesty had been graciously pleased to banish them all from every part of his dominions. A few moments were allowed them to “put on manly readiness” and enter the carriages waiting at the door, to transport them to the nearest seaport, where ships were already prepared to carry them beyond the seas. They were allowed to take their breviaries and beads, a change of clothing and a prayer book or two, and forbidden all communication with their fellow-creatures from the moment when they learned their destiny till they had left the shores of Spain, and thus they vanished as silently as a passing summer cloud, not leaving a trace behind.

    • Nos patriae fines, nos dulcia linquimus arva,
    • Nos patriam fugimus.’

    Opinions may differ as to their virtues or offenses, the advantage or disadvantage of their presence in the community, but they were at least human beings. So deep was the shame of the monarch for his act of brutal tyranny that he forbid his subjects to speak of, write about, or discuss it, as His Majesty reserved the motives and causes of it all in his own royal bosom. The document is quoted from memory, but its text is before the court and speaks for itself. Instead of the mass of treasure expected to be realized from the expulsion of the Jesuits, the total amount of money found in all their houses proved less than $9,000. The missions of California, supposed to be plethoric with the accumulated economies of the income of the Pious Fund and other gifts, yielded in all less than a hundred dollars. Knight’s English Cyclopedia Biography, Vol. III, p. 960 (Tit. Loyola Ignatius), has a brief colorless relation of the story.