Foreign Relations of the United States, 1902, United States vs. Mexico, In the matter of the case of the Pious Fund of the Californias, Appendix II

cinquième séance.

Lundi 22 septembre 1902 (matin).

Le tribunal s’est réuni à 10 heures, tous les arbitres étant présents.

M. le Président. Je donne la parole au secrétaire-géneral pour lire le protocole des séances précédentes.

M. le Secrétaire-Général (donne lecture du protocole des séances des 15 et 17 septembre 1902).

M. le Président. La parole est au conseil des Etats-Unis d’Amérique.

M. Beernaert. Je demande la parole pour une observation d’importanee très seeondaire, mais sur laquelle nous serons je pense d’accord. C’est que le dossier déposé par les Etats-Unis est en réalité un dossier commun, ainsi que cela avait été convenu a Washington; ce sont done des pièces communes, réunies par l’une des parties, mais pour le compte des deux. Il semblait que quelques mots de ce que M. le Secrétaire-Général a lu tout-à-l’heure auraient pu comporter à cet égard quelques doutes, et c’est la raison de mon observation.

M. le Président. On prendra acte de cette déclaration. La parole est à M. Ralston.

Mr. Ralston. I perhaps did not catch entirely all that Mr. Beernaert said.

The President (explains what Mr. Beernaert said).

Mr. Ralston. Assuredly, assuredly.

M. le Président. La parole est au conseil des Etats-Unis.

Mr. McEnerney. Mr. President and honorable arbitrators, in the considerations which I had the honor to submit for your consideration on Wednesday last, I had concluded the discussion of three propositions.

1. “The Pious Fund of the Californias” had an unbroken and generally recognized existence from 1697 down to the cession of Upper California to the United States of America by Mexico in the treaty of Guadalupe Hidalgo of February 2, 1848.

2. At no time during its existence, beginning with 1697 and continuing to February 2, 1848, was “The Pious Fund of the Californias” considered to be other than a trust fund. Its character as such was continuously and repeatedly recognized, first by Spain and thereafter by Mexico.

3. The trust purpose of “The Pious Fund of the Californias” was throughout its existence the conversion of the natives of the two Californias, Upper and Lower, and the establishment, maintenance, and extension of the Catholic Church, its religion and worship, in that country. This purpose Mexico consistently recognized.

In addition to having concluded the consideration of these three propositions, I was engaged when the tribunal rose for its adjournment on Wednesday last with a consideration of the connection and relation which the Society of Jesus bore to the fund from and after the expulsion and suppression of the society, a proposition which I have since that adjournment formulated and which I desire to express as follows:

4. The Society of Jesus has had no estate in the properties of the Pious Fund since 1773; nor has it had, since that time, any interest therein such as would in any manner interfere with the legal or moral right of the United States of America to demand from Mexico the award which is here sought.

I undertook, in the course of the considerations which I had the honor to submit to you, to establish in connection with this proposition the following:

(a) The contingency mentioned in the above-quoted clause of the Villapuente deed never occurred within either the letter or the spirit of that conveyance.

(b) The power granted to the “reverend father provincial of the Society of Jesus in this new Spain” to divert the income of the estates to missions in other parts of the world was ineffective from the banishment and suppression of the Jesuits (1767 and 1773), for want of the religious person designated to exercise the power. From 1773 there was no father provincial in New Spain, nor elsewhere, and no Jesuit nor Jesuit mission in all the world.

(c) The Society of Jesus renounced the right by failing ever to put forward a claim for its enjoyment.

(d) The power was religious in its nature and personal to the Jesuits.

And I had reached and had under discussion at the moment the tribunal rose the fifth point, which is this:

(e) Even if the contingency contemplated by the deed did occur, and even if the power to divert was not personal to the Society of Jesus, but did survive to and devolve upon the Spanish Crown, then we answer that the power to divert these funds from the missions of the Californias to missions in other parts of the world was never exercised by Spain. On the contrary, the dedication of the properties as a fund for the maintenance of the missions in the Californias was repeatedly confirmed by Spain, and all power to divert them to other parts of the world was waived and abandoned. Indeed, the earliest royal decrees of Spain following the banishment of the Jesuits recognized and affirmed the dedication of the properties to the support of the missions of the Californias.

The very division of the missions between the Franciscans and Dominicans, to which, when I had occasion heretofore to refer to it I begged you to impress upon your attention, for the reason that I intended thereafter to make the point at which I have now arrived. That point is that the very division of the missions between the Franciscans and the Dominicans, with the consent and approval and by the direction of the Spanish Crown, and the entire treatment of the problem of the missions in Upper and Lower California by Spain, was based upon the idea that the Pious Fund belonged to the missions of the Californias. If this fund had not been treated by Spain as a fund for the support of the missions of the Californias, Upper and Lower, those missions of necessity would have had to be abandoned.

It would have been impossible without the dedication of these funds to the missions of California for the Franciscans or the Dominicans to have carried on that work. The very agreement of Spain for a division of the missions between the Franciscans and the Dominicans was, under these circumstances, a reaffirmation by that country of the dedication of these properties to the missions of the “Californias.

I pass to the sixth point, which is this:

(f) The Villapuente deed, in which this power is reserved to the Jesuits, constituted only a portion of the Pious Fund, and by the course of history and with the concurrence and by the direction of two Governments, Spain and Mexico, the Villapuente and De Rada properties were merged in the other properties of the fund, and for three-quarters of a century (from 1768 to 1842) all of these properties were treated as constituting “The Pious Fund of the Californias,” a fund devoted, as its name implies, to pious uses, to be achieved in the Californias.

I pass now to the seventh point, which I had occasion in a faint way to foreshadow to the tribunal on Wednesday last. It is this:

(g) The court will remember that the religious orders of the Roman Catholic Church are not purely self-existent bodies. They are each of them attached to the See of Rome in a particular manner, and that See is for each of them the ultimate superior. The acts of the Holy See in respect of the functions of any particular order have not only the general authority recognized in the See of Rome by all Catholics, but they have also a particular authority, and may, for the considerations which I shall hereafter advance to you, be regarded as the acts of the order itself.

The whole history of the religious orders, including that of the Society of Jesus, will show no exception to the rule that they all regard this particular authority of the Holy See, and submissive concurrence in its commands, as a necessary condition of their very existence. And we need not stop to dwell upon that longer than a moment, because as they exist by virtue of permission issued from the Holy See, concurrent submission to its authority is a condition, a fundamental condition, to the existence of religious orders within the pale of the Roman Catholic Church. It conclusively follows from this universally admitted principle that whatever the Holy See directs or permits in the case of a religious order may be presumed to be an act of that order itself; nor could a better example of this principle be adduced than the submission of the Jesuits themselves to the papal bull of 1773 by which that order was suppressed.

Coming now to apply those principles stated in the abstract to our case in the concrete, we say that the Franciscans and Dominicans could not have taken over the administration of the missions of the Californias without the consent of the Holy See—a consent to which the Jesuits (not yet suppressed when the missions were taken over) must be deemed, from the principle enunciated above, to have been a party. The Holy See permitted the Franciscans and Dominicans to take over the missions of the Californias. What the Holy See permitted to be done from the very fundamental notion of the attachment of the religious orders to the Holy See, that act of the Holy See must carry with it the concurrence of the Jesuits.

The same idea is true of every subsequent act authorized or permitted by the Holy See in connection with the administration of the missions and the application of the Pious Fund of the Californias to their use. It will also be evident that as the archbishop and the bishop of California were permitted to present the claim which they made before the former arbitral court the validity of that claim was implicitly conceded and agreed to by the Society of Jesus. Another evidence of this concurrence is the acceptance by the Society of Jesus of the sum of $20,000 under the apportionment by the Holy See on March 4, 1877, of the recovery in the former arbitral court.

The present claim, the one before this tribunal, made by the United States of America on behalf of the archbishop and the bishop of California (these latter necessarily acting with the leave of the Holy See), will be conclusively presumed to have been made with the active and passive concurrence of the Society of Jesus. And it will be furthermore presumed as a part of this suggestion that any act of that society necessary to perfect the claim here urged has been duly had and taken in due season by said society.

In other words, it will be presumed under the circumstances that if any act could be done by the Jesuits to make effectual the claim that act has been duly performed in due season by that society. This is no novel principle of jurisprudence to put forward in a judicial tribunal, because it bears a close analogy to the presumption of a modern lost grant indulged in the law of England in support of a title by occupancy.

I desire to briefly refer to Herbert’s Law of Prescription, an essay to which was awarded the York prize in the University of Cambridge in 1890.

I shall read a few short extracts, commencing on page 12 and ending on page 20.

It appears that in order to sustain a title by prescription according to the English law, in the early history of that law, it was necessary for the claimant of title to show occupancy during the period of legal memory fixed in English jurisprudence as running back to the time of Richard the First, or 1189. It came in the evolution of the English law that this necessity was satisfied by proof of twenty years’ occupancy, from which it would be presumed, in the absence of other testimony, that the occupancy had dated back to this twilight of time represented by the year 1189.

Sir Edward Fry. Is not this rather a too technical point for us?

Mr. McEnerney. We would not have considered it necessary to argue this point but for a question addressed by Sir Edward Fry to Senator Stewart during the course of his argument.

Sir Edward Fry. I only throw it out to you as a too technical point for this court.

Mr. McEnerney. I think it is very technical; and as I have heretofore had occasion to say, I do not think the case can be in any manner affected by these considerations. I determined to submit them, however, on account of the question put by Sir Edward Fry to Senator Stewart. I will pass on—

Sir Edward Fry. I do not wish to stop you.

Mr. McEnerney. I do not care to go on. I am very glad that you made the suggestion. I thank you for it.

Mr. McEnerney (continuing). I will state now two additional grounds and then pass on. They are these:

(h) The Franciscans and Dominicans, and after them Bishop Diego, his successors in title and interest, have acquired, prescriptively, the right of the Jesuits, with the consent, seasonably made, of both Spain and Mexico.

And, lastly—

(i) The title, if any, and whatever its character, was abandoned by the Jesuits; whether compulsorily or not is unimportant. And abandonment is one of the methods by which title may be lost.

I therefore pass to my fifth proposition in the case, which is:

5. The question whether either Spain or Mexico might have diverted the fund to other missions is not involved in this case, and is therefore purely academic. Were such a position maintained, it could be conclusively answered by the fact that neither Spain nor Mexico ever did so divert the fund and neither of them ever claimed the right to do so.

In connection with this point I beg to invite your attention to an argument made before the former tribunal, printed at pages 75–76 of the Transcript.

It reads:

By the act of 1842 the Mexican Government had taken to itself private property contributed to the church for a special purpose, and bound itself to make good by paying a certain annual interest. Can there be a doubt that the church in California was then entitled to receive from the Government this annual payment, to be applied to the purpose for which the fund was originally created? We find nothing to indicate at this time any intent to repudiate its obligation, by any direct act, or by the adoption of any such arguments as are now urged to this end.

On the contrary, the Government acknowledged its indebtedness in the most formal and solemn manner, in the very act by which it placed in its treasury the proceeds of this property. The obligation thus assumed by Mexico towards a portion of its citizens was as perfect and binding upon it as if the same had been contracted by an individual. Nor is the obligation at all impaired by its own default in making payment, nor by the fact that, owing to its sovereign character, there were no means to enforce payment by judicial process. No suits can be maintained in the courts of the country against the United States, and yet its public debt constitutes an obligation as binding upon it as if judgment and execution could be invoked to enforce it.

I now invite your attention to the reply, by Mr. Doyle, at page 47 of the Transcript, Paragraph VI. It is this:

In view of the clear recognition by Mexico in the decree of October, 1842, of a debt equal to the proceeds and value of the property taken into the treasury, and of the promise to pay interest thereon at six per cent, I have deemed it unnecessary to notice many points in the argument of Don Manuel Aspiros, based on matters long antecedent to that date—such as the alleged incapacity of the Society of Jesus to acquire property; the suggestion that their estates were confiscated on their expulsion from the Spanish dominions, and that the Pious Fund came to the monarch’s hands as a temporality; that the validity of the constitution of the Pious Fund required the sanction of the Pope; that portions of the fund, derived from bequests destined by the donors to missions in general, were not necessarily applicable to California missions in particular, and, hence, were improperly incorporated into the Pious Fund of California; questions whether the church of California could, have complained if the the funds destined for the propagation of the gospel here had been (while the sovereignty of Mexico yet extended over the country) diverted to missions in other parts of the Republic; whether, if the Pious Fund had remained invested in real estate down to the time of the treaty of Queretaro, it could have been successfully claimed by the church of California, which, by that treaty, lost its status of Mexican citizenship, and the like—because, as it seems to me, none of these questions can affect the decision of this claim. It is not disputed that the Jesuits did, in fact, receive these donations in trust for the pious purposes designed by the founders, and neither the binding force of the trust nor their right and duty to administer it was ever questioned by Spain or Mexico. The legality of the additions made to it were also unquestioned at the time, and have since remained so, and it is not denied that they were, in fact, made. The acquiescence of the Government, and of all others interested, for a long series of years, entitles as to a presumption, juris et dejure, that all these things were rightly done and legal, as no doubt they were.

And that is what we say to you to-day that the acquiescence of the Government and of others interested for a long series of years entitles us to the presumption that these things were rightly done and legally, just as the foundation to much of the territory the world over has been upon unquestioned occupancy during a long series of years—sometimes not longer than seventy-five years and oftentimes less.

Sir Edward Fry. The treaty of Quéretaro?

Mr. McEnerney. It is the treaty of Guadalupe Hidalgo. The ratifications took place at Querétaro. The treaty was signed at Guadalupe Hidalgo.

Sir Edward Fry. I thought so.

I continue with Mr. Doyle’s argument:

Mr. McEnerney:

Nor is it disputed that the Crown received the funds on the expulsion of the Jesuits, and assumed to succeed to the same title, rights, and duties as had previously devolved on them, and administered the trust thereunder down to the epoch of independence, when Mexico succeeded in like manner to Spain, and continued to administer in the same way down to the year 1836.

Neither power, during this long period of over an hundred years, raised any of these questions, and I submit with entire confidence that it is too late to entertain them here and now.

So the question, whether either Spain or Mexico might have diverted the fund to other missions, is conclusively answered by the fact that they never did so, and never claimed the right to do so.

We therefore submit that neither Mexico nor Spain ever claimed the right to divert or attempted the diversion of the Pious Fund. It is hence unnecessary for us to debate the purely academic point as to whether either Government ever possessed the right suggested.

This carries me to the sixth question with which I propose to deal, and that is:

6. That the rights of the beneficiaries of the Pious Fund of the Californias which are asserted here arise out of the promise made by Mexico on October 24, 1842, and the duty of Mexico to those beneficiaries as a trustee of the fund.

When Mexico made her decree of October 24, 1842, she promised to pay 6 per cent upon the capital of the Pious Fund for the uses and purposes to which the fund had been dedicated by the donors. This’ engagement was no mere gratuity. There was not only a sufficient, but an ample consideration for the promise. She incorporated the entire Pious Fund into her national treasury. The least she could do in honor was to promise to pay interest upon the fund. Mexico not only agreed to pay the interest, but she agreed to pay it to the religious objects specified and intended by the donors of the fund, which, as we have already pointed out, were the conversion of the natives of the Californias, Upper and Lower, and the establishment, maintenance, and extension of the Catholic Church, its religion and worship, in that country.

At the time she made the engagement Mexico sustained the relation of a trustee to the beneficiaries and to the fund. This, as we have pointed out, is conceded in her answer to our memorial. Her promise, therefore, is to be read in the light of her duty as trustee. The promise which Mexico made was to pay an annuity in perpetuity. Her promise was also to pay it to certain religious purposes to be accomplished in Upper California and certain religious purposes to be accomplished in Lower California. Upon the cession of Upper California to the United States by Mexico, for a consideration of $18,250,000, the obligation to pay the equitable portion due for application to the religious purposes to be accomplished in Upper California was not canceled. It survived for the benefit and behoof of the inhabitants and citizens of the ceded territory, whose American citizenship, as it was to be thenceforth, entitled them to demand performance through the interposition of the United States. It is this demand which they made with success under the convention of 1868, and which they are now endeavouring to make with the same success before this court.

The seventh point is that:

7. All of the events preceding October 24, 1842, are in the nature of matters of inducement, as that term is used in English and American jurisprudence. The obligation of October 24, 1842, is to be read in the light of these events, in order that it may be properly interpreted. But Mexico’s obligation arises out of its legislative decree of October 24, 1842, and its precedent trusteeship.

In the law of pleading, as it is established in American and English jurisprudence, we have what are known as “matters of inducement.” These are matters appropriately to be stated in a pleading, in order that the court to which the pleading is submitted may the more intelligently appreciate the force of the particular transaction out of which arises the cause of action or the matter of defence. In this case the cause of action upon which our claim is made is the engagement in the light of the historical circumstances which preceded it. These circumstances enable us to appreciate the exact legal and moral obligation which Mexico assumed by the act of October 24, 1842, whereby she incorporated all the property of the Pious Fund into the Mexican treasury, and agreed to pay 6 per cent thereon annually and in perpetuity.

The next point to which I desire to call the attention of the tribunal is that—

8. It was the duty of Mexico during the period when it managed the “Pious Fund of the Californias” prior to the appointment of the bishop of the Californias to pay over the income thereof to the missionaries in charge of the missions, in furtherance of the purpose of the donors.

I support this proposition with the argument that as the missionaries alone were in the possession of the spiritual faculties having relation to the missions, as the spiritual faculties of the missions were their very life and very existence, as they had no other, and as that spiritual life, its foundation, and support were the objects which appealed to the donors, it follows as a consequence that the only persons who, from the very necessity of the case and the very circumstances of the missions, could administer these funds to the pious uses specified by the donors were the missionaries themselves. Hence out of the very necessity of the case they were entitled to receive the funds, and as it was intended by the donors to make their gifts effectual, it must be conclusively presumed that they intended the funds to go to those persons who alone were capable of administering them for the purposes which the donors had in mind.

The next proposition is that—

9. This duty was solemnly recognized by Mexico and was never repudiated.

It was solemnly recognized by Mexico in 1832, when she provided in the act of May 25th for the leasing of the rural properties belonging to the Pious Fund. Mark the emphasis which I place upon the word “belonging” to the Pious Fund. I so emphasize the word because it is stated in the act of May 25, 1832, that these properties “belong to the Pious Fund.” And it is provided that the moneys shall be paid into the treasury “to be solely and exclusively destined for the missions of the Californias.”

And, again, there is the provision that the board shall “name to the Government the amounts which may be remitted to each one of the Californias, in accordance with their respective expenses and available funds.”

There is no other provision of any kind in that act of 1832 which contemplates the disbursement of any of these moneys except to these Californian missions.

I say, therefore, as it is provided that these moneys shall be remitted to the missions, and as it is said in the act that the moneys are “solely and exclusively destined” for these missions, and as it is also said therein that the properties belong to the Pious Fund of the Californias, that we have made good, so far as the act of 1832 is concerned, the proposition which we now have under consideration—namely, that the duty of remitting to the missionaries prior to the appointment of the bishopric was recognized by Mexico.

Then, again, its duty to remit to the bishops was recognized by the act of September 19, 1836—the act in relation to the creation of a bishopric—by which Mexico solicited the Holy See to create a bishopric in the Californias and pledged for its support six thousand dollars per annum. In this act it is provided that all of the properties of the Pious Fund should be passed to the possession of the bishop for administration in conformity to the will of the donors or similar objects.

Again, after the passage of the act of February 8, 1842, which affirms the trust character of the properties, General Santa Anna, President of the Mexican Republic, appointed Don Gabriel Valencia, chief of staff, to be the general administrator of the funds. This you will find stated at page 505 of the Transcript.

In a letter from the minister of justice to Don Pedro Ramirez, dated February 21, 1842, it is stated that General Gabriel Valencia is appointed general administrator of said goods upon the same terms and with the same powers as were conferred upon the board under the act of May 25, 1832. (Transcript, p. 505.)

And what were those powers? They were to conserve the properties and to remit to the missions of the Californias under the act, which said that the funds were solely and exclusively destined therefor.

In further recognition of Mexico’s duty to remit to the missions is the order of the President of the Mexican Republic of April 3, 1844, to which I had the honor to call your attention on Wednesday, in which the custom-house of Guaymas is directed to pay $8,000 to the bishop of the Californias on account of the income from the Pious Fund, which had been incorporated into the national treasury.

My next proposition is that:

10. From the consecration of Francisco Garcia Diego as first bishop of the Californias, Upper and Lower, which occurred October 4th, 1840, the proper persons to receive the income or interest upon the Pious Fund have been the bishop of the Californias and his successors in title and interest.

As I have heretofore had occasion to call to your attention, Bishop Diego was appointed April 27, 1840. He was consecrated (as you will find by turning to page 91 of the Transcript) on October 4, 1840. He died April 30, 1846. His successor, Joseph Sadoc Alemany, was appointed May 1, 1850; consecrated June 30, 1850, and arrived in California in 1850. (See Transcript, pages 182, 183, and 12.)

From the death of Bishop Diego until the appointment of Bishop Alemany the bishopric was administered by the vicar-general, Father Rubio (whose deposition was submitted in the former arbitral court and is shown in this transcript), who exercised that post with the faculties of a bishop.

We have pointed out to you that from the very necessity of the case, prior to the appointment of the bishop, it was necessary to forward the funds for application to the pious uses for which they were designed directly to the missionaries. After the appointment of the bishop it was necessary in the nature of things, as he was in exclusive charge of the spiritualities and temporalities of the church, that he should apply them. It was, from the very nature and constitution of the Roman Catholic Church, its maintenance and extension, impossible for it to be applied by any other persons.

Upon this point I desire to call to the attention of the tribunal the argument made by Mr. Doyle (commencing at the top of page 86 of the Transcript, point II, and continuing to the foot of page 93, the end of point III) in which he discusses this question.

From this discussion I shall make a short extract:

This brings us to the consideration of the next question suggested by the counsel for Mexico, viz: Whether the bishops of the Church of California are the proper persons to demand, before the commission, the performance of this duty. This I think presents no serious difficulty. The church is a mystical body; it consists of the bishops and clergy and the body of the laity under their government and in communion with the See of Rome. As a body it is deemed a corporation in all countries having an established religion. Throughout the United States the absolute severance of church and state has led to the corollary of ignoring the corporate existence of any particular denomination as such, because the state having no official communication with it can not take notice of its doctrines, discipline, or organization. But statutes in all the States have, I believe, without exception, provided for the formation of religious corporations, representing the body of believers, usually in such form as each particular denomination may desire …

Mr. Doyle continues at the top of page 87:

In view of these considerations the bishops of the church (even if unincorporated) would be the proper persons, on behalf of their respective flocks, to demand before an international tribunal, like the present, fulfillment by Mexico of the duty it assumed by the decree of 1842.

Since that argument was made, and since the former award was made, a considerable body of jurisprudence has grown up in America relating to controversies about church property. In the absence of a corporate capacity the property is treated as owned by a number of persons in communion for particular purposes, like any unincorporated association for literary, benevolent, or scientific purposes. That is the status of all religious sects in the United States which are unincorporated, at least so far as their properties are concerned.

The argument which we now have under consideration, that the bishop was the proper person to demand performance here, is a rule settled in the jurisprudence of the United States in relation to land grants by Mexico to these missionary uses immediately preceding the cession of Upper California to the United States.

Shortly after the cession of California to the United States and its admission into the American Union, the Congress of the United States passed an act to settle private land titles in the State of California. This act, which was passed in 1851, provided a commission to ascertain whether grants of land which it was claimed had been made by Mexico were valid. If valid they were to be given force and recognition by a patent issued by the United States. This act of 1851 provided for the creation of a board of land commissioners, to which every person having or claiming to have a title derived from Mexico was required to present his claim. Upon the adjudication of the commission, either for or against the grant, the case passed by appeal to the United States district court and thence, if need be, to the United States Supreme Court. Under that act the bishop of the Californias, Joseph Sadoc Alemany, presented to the board of land commissioners a claim for all of the properties of the church which had been granted to religious persons or which had been dedicated without any formal conveyance to missionary or other religious uses. The question arose in that case whether the bishop was the proper person to come forward on behalf of the undefined communion known as the Roman Catholic Church in California to claim patents and whether he appropriately represented the church. Our courts decided against their own Government, because if these grants were not valid the property claimed under them remained a part of the public domain of the United States. Our courts, I say, held that those were effectual grants to be carried out by the United States under its obligation to treat as valid and effective grants previously made by the Government of Mexico, and furthermore decided in accordance with the contention which Mr. Doyle made before the former arbitral court, and which he indeed made before the land commission upon behalf of the bishop, that the bishop appropriately represented the church, the clergy, and the laity—both those actually and those potentially within the fold—and was entitled to receive the patents for church lands.

It is that principle established by the courts of the United States that we invoke for application here.

At page 564 Mr. Doyle says, third line:

When the territory of Upper California was ceded by Mexico to the United States it was held by the judges, in a suit between the Government and the church, that the latter had become the owner of these properties so appropriated by dedication of the Government.

Please keep in mind that some of these grants were affirmed, not on the ground that the Government had made a written instrument by which it conveyed the property to the church, but for that it recognized the use by the church for religious purposes. It had dedicated the property by its express consent, or by a course of conduct amounting to acquiescence, just as a man suffers a right of way to grow up by usage if he permits the public to travel over his domain from a time out of mind.

I now return to the extract which I was reading from Mr. Doyle’s brief at page 564 of the Transcript.

He says:

And this doctrine received the sanction of the Supreme Court of the United States, in the case of Beard vs. Federy, 3 Wall., 479 (492). The United States only asks in this case the same recognition of the rights of the church to property, expressly dedicated ad pios usus, by individuals which their judiciary enforced against themselves in a case of dedication of portions of the public domain, in respect to which they had succeeded to all the right of Mexico implied in the vice-regal license under examination.

This point is also dealt with, commencing with the words “Another precedent occurred,” etc., on page 89 of the Transcript, and continuing to the words “why not also the interest,” on page 92. At page 89 will be found extracts from the decision of the United States land commission upon the application of the Roman Catholic bishop of Monterey for a patent to the properties claimed by the church. In this case all of the questions with which we are now concerned are dealt with, and it was there decided that the bishop was the proper person to receive the patent.

On this same point I desire to refer the tribunal to paragraph 5 of one of Mr. Doyle’s briefs, page 471. I shall not read it.

There is another precedent upon which we rely—one established by Mexico in a treaty with Spain, made in 1844. Of that precedent it is said at page 92:

In this connection, and in order to present the whole argument together, I take occasion to repeat in extenso the reference to the precedent (quoted in our memorial) of the missionary fund of the Philippine Islands. In its general character and the objects to which it was devoted it was analogous to the Pious Fund of the Californias. Its income had been, down to the severance of Mexico from the Spanish dominion, periodically remitted to the ecclesiastical authorities in those islands. Shortly after the declaration of Mexican independence the properties of this fund were seized and embargoed by the Mexican Government, and farther remittances of their proceeds forbidden. This embargo was afterwards raised; but two haciendas belonging to the fund had been appropriated by Mexico, so that their value, with indemnity for past rents, remained due to the Philippine missions; and this was made the subject of diplomatic representations by Spain to Mexico after the recognition of her independence by the former power. These negotiations resulted in the convention of November 7th, 1844, whereby the Republic of Mexico bound itself to pay to the president of the Philippine missions the sum of $115,000, the agreed value of the property, and $30,000 of indemnity, in satisfaction of said claim. The total of $145,000 was to draw interest at six per cent per annum until extinguished, from the particular revenues which were specifically pledged for the purpose.

That same incident is dealt with in the first memorial, at page 14, arid again in Paragraph XII, page 474, of the transcript.

We therefore conclude that from the time of the appointment of the bishop until the cession of California to the United States it was the duty of Mexico to remit these moneys for administration to the bishop.

We support this contention with two precedents, one derived from the jurisprudence of America in a controversy between the church, claiming title derived from Mexico, on the one hand, and the United States on the other; the other a precedent established by Mexico in a convention with Spain having relation to the Philippine missions.

I desire to call to the attention of the tribunal that the matters which were the subject of this treaty by Mexico arise out of the Arguelles benefaction, which is the subject of Payno’s report, at pages 23 and 24. Three-eighths of the estate belonged to the, Philippines missions and three-eighths to the California missions. The law for the Philippine missions in that case must be the law for the California missions in this case, and as Mexico accounted to Spain for the income properly appertaining to the Philippine missions we say that it is likewise her duty to account to the United States for the income appertaining to the missions of Upper California.

The duty in each case depends upon precisely the same facts.

11. My next proposition is that whatever the rights of the American church were before the cession of the territory, they remained afterwards. In support of that proposition, although the circumstances are slightly variant, I desire to quote to you a decision referred to on page 586 of the transcript. It is a decision of the United States Supreme Court, written by one of the most distinguished judges who ever sat upon the American bench, Mr. Justice Joseph Story, and concurred in by the most distinguished judge America has produced, Chief Justice John Marshall.

These were the facts:

While Virginia was a colony of Great Britain and the Episcopal Church was the established religion, certain glebe lands came into possession of the church. Virginia, after the Revolution had established its independence, undertook to pass an act authorizing the overseers of the poor of each parish to sell these glebe lands and appropriate the proceeds to the use of the poor.

In commenting on this, the Supreme Court of the United States said:

Be however the general authority of the legislature as to the subject of religion as it may, it will require other arguments to establish the position that at the Revolution all the public property acquired by the Episcopal churches, under the sanction of the laws, became the property of the State. Had the property thus acquired been originally granted by the State or the King there might have been some color (and it would have been but a color) for such an extraordinary pretension. But the property was, in fact and in law, generally purchased by the parishoners or acquired by the benefactions of pious donors. The title thereto was indefeasibly vested in the churches, or rather in their legal agents. It was not in the power of the Crown to seize or assume it, nor of the Parliament itself to destroy the grants, unless by the exercise of a power the most arbitrary, oppressive, and unjust, and endured only because it could not be resisted. It was not forfeited, for the churches had committed no offence. The dissolution of the regal Government no more destroyed the right to possess or enjoy this property than it did the right of any other corporation or individual to his or its own property. The dissolution of the form of government did not involve in it a dissolution of civil rights, or an abolition of the common law under which the inheritances of every man in the State were held. The State itself succeeded only to the rights of the Crown, and, we may add, with many a flower of prerogative struck from its hands. It has been asserted as a principle of the common law that the division of an empire creates no forfeiture of previously vested rights of property. Kelly vs. Harrison, 2 John C, 29; Jackson vs. Lunn, 3 John C, 109; Calvin’s case, 7 Co., 27. And this principle is equally consonant with the common sense of mankind and the maxims of eternal justice.

This principle was recognized by the United States in its treatment of the municipal corporations, known as pueblos, existing by virtue of Mexican law. They were recognized as existing bodies until they were reorganized under municipal laws enacted by California as one of the States of the American Union.

12. We now pass to the proposition that the amount of the Pious Fund, and the properties of which it consisted on October 24, 1842, as fixed by the former arbitral court were definitely established by the proofs presented to that court. If the case is not controlled by the principle of res Judicata, we claim that the total as fixed by the former arbitral court should be increased by $381,518.15.

The amount of the Pious Fund before the former arbitral court was ascertained and fixed by the aid of the inventory and appraisement of those properties, prepared by Pedro Ramirez upon the demand of the Mexican Government, and which accompanied the surrender of the fund to General Gabriel Valencia, appointed, as I before shown to the tribunal, on February 21, 1842. The inventory is to be found in English, commencing on page 512 and continuing down to 518.

It is styled:

Detailed statement of the condition in which I received as attorney of the Most Illustrious Lord Don Fray Francisco Garcia Diego, bishop of Californias, the properties which constitute the Pious Fund of his missions, and of their condition at this date, as noted in my official letter of the 28th of February last.

The inventory is also set forth in the record in Spanish, transcript 488 to 493 and 169 to 175. If the members of the tribunal will turn to the opinion of the American commissioner, which was affirmed or approved by the umpire, they will find at page 525 that Mr. Wadsworth said:

I take the reports Pedro Pamirez of February 28, 1842, upon the condition of the fund made to Ygnacio de Cubas, Exhibit A to the deposition of Jose Maria de Romo, as a sufficiently accurate and satisfactory account.

Ygnacio de Cubas was secretary to General Valencia in the administration of the Pious Fund (Tr., 510).

If this case is not controlled by the former decision, then we ask to add the following items to the capital of the Pious Fund as fixed by the former arbitral court:

The Cienega del Pastor, which was sold November 29, 1842, by Mexico for $213,750.00.

Sir Edward Fry. $213,750.00.

Mr. McEnerney. $213,750.00.

The deed by which this sale was made is to be found in the replication, page 47. Other estates were also conveyed by the same instrument, but it is shown in a brief here, filed by Messrs. Doyle and Doyle, and can not be disputed, that the price of the Cienega del Pastor was $213,750.00. This estate was not calculated as a part of the capital in the former arbitration for the reason that it appeared by the report of Pedro Ramirez that the property was under attachment to secure a lien of $158,000, and there was nothing in the record to show that Mexico had ever sold it or that she ever derived a dollar from it. Under a demand for discovery Mexico has produced the conveyance in the replication at page 47, by which it does appear that Mexico did, one month and seven days after the decree of October 24, 1842, sell this property for $213,750.00.

Our second item is $3,000.00, which is for personal property belonging to the Pious Fund, sold with the Cienega del Pastor, as will be found by an examination of the same deed.

The third item is $7,000.00. That is a debt due from the Mexican Government to the Pious Fund, which the former arbitral court rejected because of a mistaken understanding, as we believe, of the report of Mr. Ramirez in connection with it. The money was advanced by the fund at the request of the Mexican Government to a third person. The third person to secure the money delivered to the administrator of the Pious Fund an obligation, promissory in character, as collateral. Ramirez styled the collateral as a bad debt. The American Commissioner in making up his report assumed that the original obligation was the bad debt; hence the mistake.

The fourth item is $22,763.15, moneys borrowed from the Pious Fund by Mexico.

Sir Edward Fry. The amount please?

Mr. McEnerney. $22,763.15, moneys borrowed from the Pious Fund by Mexico for colonization purposes, for the particulars of which see Ramirez-Valencia correspondence, in English at page 500, Spanish pages 478–479 and 160.

The fifth item is $30,000.00. A payment by Mr. Ramirez, shown in his correspondence at page 500, of $30,000 on account of a loan of $60,000 to the Mexican Government, secured by a mortgage of the Pious Fund.

The sixth item and the last is $105,004.89. It appears by Payno’s report, transcript, pages 23 and 24, that there was paid into the general treasury for the account of the Pious Fund of Californias from the Arguelles estate $306,901.64.

Mr. Asser. Is it not $316,000?

Mr. McEnerney. No; the last item, $10,000 to the foundling asylum in Manila or the children of Carro, should be deducted, leaving the sum of $306,901.64. Of this sum, presumably for the want of knowledge, Mr. Ramirez claimed for the Pious Fund in his inventory the sum of $201,896.75 only. The difference between these two sums, which we now claim, is $105,004.89. You will find Mr. Ramirez’s figures at pages 517 and 526; 517 Mr. Ramirez’s and 526 the American Commissioner’s. The difference between these suites is $105,004.89. The total of the foregoing items is $381,518.15.

Mr. Sir Edward Fry. $381,518.15?

Mr. McEnerney. $381,518.15.

13. The next proposition which I desire to advance for the consideration of the members of this tribunal is that it is well established that in the disposition of causes a litigant is to be judged by the proof which it is within his power to produce, compared with that which he in fact produces. It is a supplementary principle in the decision of causes that the presumption is that proof withheld would be adverse to the party withholding it if it were produced. We invoke these principles to draw the conclusion that as Mexico has full possession of all of the books, papers, vouchers, and accounts with respect to the Pious Fund, she can establish to the smallest fractional account of her currency what was received, and it should be therefore presumed that if all of the accounts with respect to the Pious Fund were produced by Mexico they would show a larger liability than we have been able to prove. It will be kept in mind that by two sections of the act of May 25, 1832, sections 11 and 12, books of account of the Pious Fund were required to be kept; also that General Valencia was appointed general administrator of the Pious Fund in 1812 with the same powers and, of course, with the same duties as had the board (junta) under the law of 1832; so that these two administrations, provided for by law, were by the law of their appointment required to keep accounts of the Pious Fund. It must be presumed that the accounts were kept, for it is a presumption existing in all jurisprudence that every public officer does his duty.

14. I come now perhaps rather tardily, to what we conceive to be the controlling question in this case, and that is the first question propounded in the protocol for decision by this tribunal, namely, whether this controversy is, by virtue of the former award, operating as res judicata, foreclosed from consideration upon its merits.

In considering this question I propose to briefly advance four propositions, leaving their extension and amplification for other counsel, particularly for the learned agent of the United States, who has given this question the careful, diligent, and learned investigation which its importance and far-reaching effect demand.

The four propositions which I propose to advance in connection with the question are:

1. The principle of res judicata does apply to international arbitrations.

2. The former arbitral court had jurisdiction to make the award which it did make.

3. The force of the principle of res judicata extends to all of the matters which are necessarily included within the condemnatory part of a judgment; in other words, that a judgment of any tribunal the world over includes not only the thing spoken, but all things organically a part of it.

4. That all matters necessary to an award here in favor of the United States, except the one question of nonpayment since February 1, 1869, were determined, and necessarily determined, in and were organically a part of the former award.

Before proceeding to show that the principle of res judicata does apply to international arbitration, it is appropriate that I should mention to you that it is frequently stated by the law writers that the principle of res judicata is a fundamental concept of every jural society.

If the principle is a fundamental concept of every jural society, it must necessarily apply to matters international.

We need not be long detained, however, in arguing that the principle does apply to international arbitration, because Mexico has declared in unmistakable terms and conceded that the principle does apply to international arbitrations.

In his letter addressed-to Mr. Powell Clayton, American minister to Mexico, under date of November 28th, 1900, Mr. Mariscal, minister of foreign affairs of Mexico, concedes that the principle of res judicata does apply to the awards of international arbitrations. The particular part of the letter which I propose to quote presently will be found in the middle of page 31.

Mr. Mariscal, while admitting the existence of res judicata generally, contends, however, that it should not be applied in the present case, for two reasons:

1. The former award was not pronounced within the limits of the jurisdiction of the arbitral court created under the convention of July 4, 1868.

2. Res judicata is limited in its application to the condemnatory portions of judgments, and does not embrace the premises upon which such portions are based.

I now quote from the Diplomatic Correspondence, page 31. This is Mr. Mariscal’s letter. And, although the members of this Tribunal have read it, it will bear repetition:

That, says Mr. Mariscal, res judicata pro veritate accipitur is a principle admitted in all legislation and belonging to the Roman law, certainly no one will deny. Nor is it denied that a tribunal or judge established by international arbitration gives to its decisions “pronounced within the limits of its jurisdiction” (in the language of the authority cited by Mr. McCreery) the force of res judicata; but to give in practice the same force, as that directly expressed in the decision to close the litigation, to the considerations or premises not precisely expressed as points decided by the judge, but simply referred to by him in the bases of his decision, or assumed as antecedents necessary for the party in interest, who interprets the decision, is a very different thing, and can not be considered in the same way.

It will be seen, as I have contended, that Mr. Mariscal concedes that res judicata does apply to international awards. It furthermore appears that the only objections which Mr. Mariscal can interpose to the application of that principle here are two:

1. That the former decision was in excess of the jurisdiction of the former arbitral tribunal; and

2. That the function and force of res judicata do not extend beyond the bare condemnatory portion of the judgment.

This last proposition we meet by showing, as we hope to be able to show beyond peradventure, that res judicata not only extends to the condemnatory part of the judgment, but to all matters necessarily a part of it; to those matters without the decision of which the conclusion reached could never have been attained. We then apply the principle here and claim that there is no question involved in the present case and necessary to a decision in favor of the United States which could have been decided against our present contention by the former arbitral court without having defeated us in that court.

It is important, in considering the admission of Mexico, to briefly refer to the diplomatic correspondence which preceded Mr. Mariscal’s letter. The letter practically closed the discussion upon the subject of res judicata. It was followed by a suggestion on the part of the Government of the United States, cheerfully and promptly agreed to by Mexico, to submit the questions as they are stated and framed in the protocol to the decision of an impartial tribunal.

The first letter in which this question of res judicata is suggested is at page 6 of the Diplomatic Correspondence—a letter from Mr. Clayton, minister of the United States to Mexico, addressed to Mr. Mariscal, minister of foreign affairs, under date of September 1, 1897, five years to a day before the initial meeting of this tribunal.

After mentioning the claim, Mr. Clayton says:

I need only refer to the findings of the American and Mexican joint commission under the convention of July 4, 1868, which established the following propositions:

1. That the Roman Catholic Church of Upper California is a corporation of citizens of the United States.

2. The obligation of the Mexican Government to pay to the bishops of California and their successors the interest on the proceeds of the property belonging to the fund, same being held in trust by the Mexican treasury for the purpose of carrying out the wish of the founders of the fund.

3. That the claimants are the direct successors of the bishops of California, and should, therefore, receive a fair share of the interest upon the proceeds of the fund.

4. That the archbishop and bishops of that church are the proper parties to demand and receive it.

5. That the case is one in which all inhabitants of the State of California, and even the whole population of the United States, are interested, and is, therefore, a proper one for the diplomatic intervention of the United States Government.

These propositions being, as it were, “res judicata,” and the Mexican Government having paid no interest upon the fund since the payments made under the award of the Joint Commission, I respectfully call your excellency’s attention to that fact, and request that I may be informed of the purposes of the Mexican Government in relation to this claim.

The United States addressed a number of diplomatic communications to Mexico in connection with this claim from 1891 to 1897. No answer was made to any of them until Mr. Clayton wrote the above-quoted letter to Mr. Mariscal. To this Mr. Mariscal replied, page 5 of the Diplomatic Correspondence, in which he said:

Therefore, claims arising or filed against either of the contracting Governments after the 1st of February, 1869, were not the object of said convention; neither could they therefore, nor in a general way could the questions which, not treating directly upon injuries indemnifiable in money, refer to points of fact or of right such as those set forth in the note which I answer, and which your excellency considers as decided in the decision pronounced by the arbitrator on the 11th of November, 1875, be a matter for the arbitration provided in said convention.

Meaning thereby to argue that the former award by its own force and virtue did not compel the Mexican Government to make the payment claimed.

Mr. Mariscal, continuing, said:

Said decision condemned the Mexican Republic to pay to the Catholic Church of Upper California a determined sum of money which amounted to the interest calculated on one-half of the so-called Pious Fund of the Californias, corresponding to the twenty-one years included between the dates of the signature and exchange of ratifications of the said convention.

In other words, from February 2, 1848, the date of the signature of the treaty of Guadalupe Hidalgo, to February 1, 1869, the date of the exchange of the ratifications of the treaty of 1868, was precisely twenty-one years.

Mr. Mariscal then says:

From what has been stated it follows that the debt imposed upon the Mexican Republic by the arbitral decision of November 11, 1875, or the res judicata, as your excellency designates it, was extinguished.

Again, on the same page, he says:

If it is now alleged that the reasons on which said decision was founded justify an analogous claim, though subsequent to the one decided by it, such argument lacks the force attributed to it. It is well understood that only the conclusion of a sentence or decision passes into authority of res ad judicata. The considerations that served it as premises are subject to controversy in the future, are perfectly impugnable, and therefore do not constitute the legal truth.

And further:

The Mexican Government will demonstrate fully the falsity and injustice of the foundations of the decision pronounced in favor of said church.

I lay particular emphasis and stress on the word “foundations,” because Mr. Mariscal is of the opinion that res judicata does not apply to the foundations of a judgment, while we claim that it does apply. We insist that the foundations of a judgment are organically part of it.

This reply by Mr. Mariscal was the subject of a rejoinder forwarded to the Secretary of State by Mr. Doyle, which is to be found in the Diplomatic Correspondence.

I read one brief paragraph from his letter, page 13, where he says:

These suggestions of Señor Mariscal proceed upon a misapprehension of the scope claimed for the doctrine of res adjudicate invoked by Mr. Powell Clayton in his communication to which the Mexican secretary replies. That doctrine, briefly expressed in the civil-law maxim, “Res adjudicate pro veritate accipitur,” has been declared by eminent jurists to be a necessary concept of every jural society, and is accepted as axiomatic in every system of law which has ever prevailed in any civilized society. It has been so often invoked, defined, sustained, and commented upon by the highest judicial tribunals of England and America, and expressed in the language of the most eminent jurists of the world, that it would be presumptuous in me to state it in language of my own.

And again (third line from the bottom of page 14):

The principle of res adjudicata renders the adjudication in question conclusive evidence in any future contest between the same parties (or between parties deriving under them), not only of the ultimate conclusion of indebtedness existing at that time, but of each of the constituent facts from which that conclusion resulted. In fact it is apparent on the least reflection that such is the necessary logical result of its conclusiveness on the question of indebtedness. For indebtedness is not a primary fact, but is necessarily the result of other and antecedent facts. A man is indebted for money borrowed. Why? Only because he borrowed the money. The tribunal which adjudges him indebted must, of necessity, determine the cause of such indebtedness, i. e., the act of borrowing and the amount borrowed; so that what decides the indebtedness, which is the consequence, necessarily determines also the fact of borrowing, and the amount of the loan which constitute the cause.

Mr. Doyle then proceeds, and I shall not trouble the tribunal to read it, commencing at the foot of page 15 and continuing to the top of page 17 to quote a number of well-known American law writers dealing with this question. He concludes at the top of page 17 with the quotation which I referred some time since, from Mr. Black, who says, speaking of res adjudicata:

It is not too much to say that this maxim is a fundamental concept in the organization of every jural society.

On December 4, 1899, in a letter addressed by Mr. Hay, Secretary of State of the United States, to Mr. Clayton (pages 46–47 of the Diplomatic Correspondence) the principle of res judicata is enforced in language no less clear and vigorous. On June 7th, 1900, Mr. Hay forwarded to Mr. Clayton an authority or statement from Merignhac, which was laid before Mr. Mariscal (page 11) by Mr. McCreery. Merignhac said that “The sentence, duly given within the limits of the convention, decides the question between the parties in a definitive manner.” It is this authority to which Mr. Mariscal referred in saying, “Nor is it denied that a tribunal or judge established by international arbitration gives to its decisions, ‘pronounced within the limits of its jurisdiction’ (in the language of the authority cited by Mr. McCreery), the force of res judicata”

We therefore start with the proposition that it is conceded by Mexico that the principle of res judicata does apply to the awards and judgments of international courts. Indeed, it seems to be so assumed in the protocol, which, as Sir Edward Fry has said, constitutes the code for this court.

Let me read a short extract from the protocol, which will also show some of matters which Mexico concedes were decided by the former arbitral court:

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 Montery, 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.

Sir Edward Fry. Those figures are not quite correct.

Mr. McEnerney. No. In the petition for revision, filed by Señor Avila, he pointed out that there had been a mistake in addition so that the fund was erroneously calculated to be one thousand dollars more than in truth it was. Twenty-one years’ interest at 6 per cent on a thousand dollars is $1,260; half of that would be $630, so that the sum instead of $904,700, should have been $904,700 less $630, which is $904,070. Sir Edward Thornton corrected the award accordingly (Tr., 650).

I continue with the reading of the protocol:

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 30 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—

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 or award as may be meet and proper under all the circumstances of the case.

Having now called to your attention that it is conceded by Mexico that the principle of res adjudicata does apply to international arbitrations, I desire briefly to call to your attention the law and the history of the principle of res adjudicata as we understand them.

To this end I desire to read a few quotations from Chand on Res Judicata, a work which has considerable circulation in America—one written by a British India judge.

Sir Edward Fry. I did not catch the name.

Mr. McEnerney. Hukm Chand. Mr. Chand died a short time ago, after having written some other legal works.

The work is dedicated to the Right Honorable Baron Herschell, lord high chancellor of England.

Mr. McEnerney (continuing). On page 1 of this work it is said:

The doctrine of res adjudicata is of universal application, and in fact (quoting again the language which I have repeated so often) a fundamental concept in the organization of every jural society. Justice requires that every cause should be once fairly tried, and public tranquillity demands that, having been tried once, all litigation about that cause should be concluded forever between those parties.

The maintenance (quoting Judge Campbell, one of the early judges of the United States Supreme Court and a man of great distinction and learning) of public order, the repose of society, and the quiet of families require that what has been definitely determined by competent tribunals shall be received as irrefragable legal truth. If it were not for the conclusive effect of all such determinations there would be no end of litigation and no security for any person, the rights of parties would be involved in endless confusion, and great injustice often done under cover of law, while the courts, stripped of their most efficient powers, would become little more than advisory bodies, and thus the most important function of government, that of ascertaining and enforcing rights, would go unfulfilled.

On page 2 the author says:

The term “res adjudicata” is derived from the Roman law, and in its most obvious and general meaning it signified at Rome, as it signifies in England and in America, that a matter in dispute had been considered and settled by a competent court of justice. A judgment of the court among the Romans always operated as an novation of the original cause of action which was deemed to merge in it. This effect did not attach, however, to the judgments of the praetor’s court, which were regarded as foreign judgments, but allowed to be pleaded by way of confession and avoidance.

And it is said (p. 2), speaking of the rule according to Roman law:

The conclusiveness of the judgment extended to every point necessarily decided.

The author also says (page 2):

These maxims having stood the test of centuries, still retain their original place in the jurisprudence of every civilized country of to-day.

It being established that res adjudicata does apply to the awards of international courts, the next question to be considered is whether the award of the arbitral court created under the convention of July 4, 1868, was within the limits of its jurisdiction. You will recall that it is urged by Mr. Mariscal that the award of the former arbitral court was not within the jurisdiction of that court. He therefore invokes in italics the limitation upon the doctrine, contained in the authority cited by Mr. McCreery, that the former award had not the force of res adjudicata unless the award was within the jurisdiction of the court which made it, the idea being that, if the court has no jurisdiction, its judgment is void and has not the force of res adjudicata nor any force whatever. It will be, therefore, necessary to consider the propositions advanced by Mr. Mariscal that the former arbitral court acted beyond its jurisdiction.

We claim that the court had jurisdiction upon five different grounds. Our first ground is that the court decided that it had jurisdiction, and its decision that it had jurisdiction being an inherent function, is conclusive before all courts in all places. What is jurisdiction? It is the power to hear and determine a cause. The possession of jurisdiction does not involve, of necessity, its rightful exercise. Jurisdiction involves the power to commit error, because when you assert that a court has jurisdiction, you necessarily assert that it has the power in the exercise of that jurisdiction to correctly or incorrectly interpret the law, to correctly or incorrectly understand, appraise, and weight the facts. It has come to be axiomatic that the first thing that a court decides, that the fundamental decision of every court in every country, in every place, in every case, is that it has jurisdiction, because, when a court sits to hear a case, it necessarily affirms that it has the power to hear it, and when it determines it, it necessarily determines that it has the power to adjudge the case.

There is, therefore, necessarily involved in the hearing and determination of every case a judicial determination (usually implied) by the court that it has power to hear and determine the cause.

(A midi la séance est suspendue jusqu’à, 2 heures.)