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:
- 1.
- 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.
- 2.
- 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.