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

septième séance.

23 septembre, 1902 (matin).

La séance est ouverte à 10¼ heures du matin; tous les arbitres étant présents.

M. le Président. Je donne la parole au secrétaire-général pour lire une décision du tribunal.

M. le Secrétaire Général. Voici cette décision:

Afin de garantir la marche régulière et continuelle des débats, le tribunal décide ce qui suit:

1°. Les séances du tribunal auront lieu tous les jours de 10 heures à midi, et de 2 h.½ à 5 heures jusqu’a la fin des débats.

2°. Toute proposition ou demande des parties en litige concernant la marche de la procédure arbitrale ou l’interprétation des règles établies devra etre formuiée par écrit.

M. le Président. Cette décision sera conimuniquée aux parties immédiatement. La parole est à l’agent des Etats-Unis d’Amerique pour continuer son diseours.

Mr. Ralston. Before continuing my remarks upon the subject-matter of the dispute, I desire to present to the Court, if it be not in opposition to the last clause read, a telegram from M. le Chevalier Descamps, in which he says:

Reine morte. Pourrai plaider lundi. Priez mes confrères de me reserver la réplique Descamps.

I desire to say with reference to this that our arrangements are such that it will not be possible to reserve for M. Descamps, as he requests, the final reply on the part of the United States. That particular duty falls to the Solicitor of the State Department of the United States. We are, however, very greatly disappointed that M. Descamps can not be here this morning. We had confidently counted upon his presence and his assistance. Under the unfortunate circumstances, for which we should not ourselves desire to suffer, nor should we desire, if it may be, that M. Descamps should lose the opportunity of presenting the considerations which most strongly appeal to him in the case—under the unfortunate circumstances I beg to present to the court an application, if it be not in opposition to the rule already announced, an oral application for the privilege to be granted M. Descamps to speak at some subsequent time—say, as he suggests, Monday—but not to interfere with the final reply on behalf of the United States which remains to Mr. Penfield. I appeal simply to the good graces of the court in the matter, without in any degree presenting it, of course, as a matter of right in view of the rules already adopted by the court. Nevertheless it is something which we would highly appreciate, and I am sure would be appreciated by M. Descamps.

M. le Président. Nous avons à délibérer sur la question de savoir si nous pourrions ajourner les séances, mais nous sommes arrivés au résultat qu’il faut continuer les débats.

M. Beernaert. Je demande la parole.

M. le President. M. Beernaert a la parole.

M. Beernaert. J’ai l’honneur d’annoncer à la Cour que je la saisirai d’une demande analogue à celle de M. Descamps, mais dans une beaucoup moindre mesure. La Cour sait quelle est la position politique que j’ai occupé et que dans une certaine mesure j’occupe encore. Quelque soit mon désir de tenir compte de l’intention qu’a exprimée la Cour de terminer promptement les débats—jen’aipuendonnerunemeilleure preuve qu’en m’excusant au Congrès de Hambourg—il est cependant impossible que je n’assiste pas aux funérailles de la Reine. Je bornerai done la demande écrite dont je vais avoir l’honneur de saisir le Tribunal aux séances de jeudi et de vendredi. Dans cette hypothèse, il me semble que nous pourrions avoir promptement fini. Mr. Ralston a annoncé l’intention de terminer aujourd’hui, si je ne me trompe. . . . . .

Mr. Ralston. Je le pense.

M. Beernaert. Il finirait done aujourd’hui, et il resterait la séance de demain—mercredi—pour entendre M. Descamps, s’il prend part à la première plaidoirie. Si M. Descamps ne prend pas part à la première plaidoirie et se réserve la réplique, M. Delacroix prendrait la séance de demain, nous reprendrions samedi, et je ne pense pas que pour ce qui nous concerne il nous faille plus de deux séances, c’est-à-dire celle de mercredi si M. Descamps ne parle pas et celle de samedi, Dans l’autre cas, il nous suffirait des audiences de samedi et de lundi. La Cour voit que nous sommes extremêment préoccupés de tenir compte de ses convenances que nous comprenons, mais j’espère qu’elle voudra bien aussi tenir compte de la situation dans laquelle nous nous trouvons par suite d’un évènement aussi malheureux que possible et assurément imprévu. J’aurai l’honneur de la saisir de ma demande écrite.

Je dois ajouter, messieurs, que je ne suis pas seul dans ces conditions: Son Excellence M. Pardo, la Cour le sait, est accrédité auprès de la Cour de Belgique comme il Pest aupres de la Cour de Hollande; il doit done nécessairement lui aussi—il est invité officiellement à la cérémonie—quitter La Haye; nous partirons ensemble aussi tard que possible, c’est-a-dire demain mercredi soir.

Mr. Ralston. Mr. President and honorable arbitrators:

Recognizing the unhappy circumstances of the case, we should certainly not think of opposing the proposition of Mr. Beernaert; that is, that the court adjourn on Thursday and Friday, which would enable Mr. Beernaert and Mr. Pardo to attend the funeral of the Queen. Unfortunately I have not been able to see M. Descamps since last Tuesday, and I can not speak of his engagements other than may be indicated by the telegram which I have before me. It is not, of course, my desire in any degree to disarrange the order of speeches already laid down by the court. In his telegram, as read, he asks leave, if possible, to address the court on Monday—“Pourraiplaider lundi”—and it is that request that I desire to submit. I assume from the contents of the telegram that it would not be possible for him to be here to-morrow. If he could be here then, I should personally much prefer that he proceed at that time. I submit, therefore, the question to the consideration of the court as to whether he may speak, even out of order, arriving on Monday.

M. le Président. M. Descamps ne peut done plaider demain?

M. de Martens. Si vous avez la bonté, Mr. Ralston, de prévenir M. Descamps que le tribunal a décidé de siéger continuellement, peutêtre alors prendra-t-il des arrangements afin de pouvoir, s’il le faut absolument pour lui, assister à l’enterrement de Sa Majesté la Reine de Belgique, et, comme la distance entre Bruxelles et La Haye est settlement de 3 heures, je crois que pendant une journée il pourrait parfaitement faire ce voyage à Bruxelles et revenir. Il me paraît qu’une demande catégorique de votre part le mettra tout-à-f ait en état de s’arranger afin d’être ici s’il est possible demain.

Mr. Ralston. I will then have a telegram sent, with the permission of the court, addressed to M. Descamps, urging him by all means to appear here to-morrow, and that despatch will go immediately. I can not anticipate the exact length of my own argument, but I do not anticipate it will take all of to-day, so there may be a hiatus perhaps between the end of my speech and the coming of M. Descamps.

Mr. Ralston. Mr. President and honorable arbitrators:

I desire to sum up for a moment, in opening this morning, some of the positions to which the attention of the court was invited on yesterday.

After the preliminary observations and a discussion of the foundation of the claim we considered the jurisdiction of the mixed commission as fixed by the convention of 1868, and as admitted by Mexico because of her repeated extensions of the function of the original mixed commission without any objection to the consideration by it of the question of the right of the United States to maintain this action in the face of the provisions of the original convention of 1868.

Sir Edward Fry. Did you not go over this yesterday?

Mr. Ralston. Yes, sir. This is only, if your honor please, by way of inducement. I desire, however, to call the attention of the court to the further consideration which was not discussed in this connection yesterday, but which is found in the original project of M. Goldschmidt, referred to on page 30^a of my brief. It will be seen that that writer considered that it was the duty of the party objecting to the competency of the court to raise that objection at the first opportune moment. And the particular language used by him, to which I invite your attention, is this:

Si l’exception d’incompétence n’est pas opposée au premier moment opportun ou si l’exception opposée en temps utile ayant éte repoussée par le tribunal arbitral, les parties passent outre sans faire de réserves, toute contestation ultérieure de la compétence est exclue.

I call the attention of this tribunal to the fact that the parties did pass beyond the question of competency without making any reservation of any rights of discussion of it in any future time.

The same view we also find, noted on the brief at the same page, was entertained by M. Rolin-Jacquemyns and also by M. Calvo in his work in the following language:

La partie que soulève ainsi devant les arbitres une exception d’incompétence a le droit d’y ajouter des réserves formelles de nullité totale ou partielle de la sentence à intervener pour le cas où l’exception serait rejetée par les arbitres. A défaut de présenter de pareilles réserves, la partie que soulève l’exception est censée avoir accepté d’avance la décision arbitrate comme définitive et sans appel.

Repeating what, I say, we find here that the parties passed beyond the question without the formal reserves in the case of the exception being rejected by the arbitrators. Without reading it in extenso, we also find the language of M. Pradier-Fodéré to the same intent, quoted on page 31^a.

So that from our point of view the question of jurisdiction and the question of the right of the former tribunal to pass absolutely and finally upon its jurisdiction are settled because of the making of further conventions and because of the absence of any reserves noted by Mexico in connection with the decision of the question.

The point at which discussion ceased yesterday had reference to the differences of opinion entertained by M. Rivier on two several occasions, and I made the statement that I was able to find but two who entertained the idea that the arbitral court was not, in fact, a true court, M. Rivier and M. Bonfils.

I call your attention to the language of M. Bonfils, on page 27^b of the brief, in which he is quoted as saying, among other things:

Les arbitres ne peuvent pas statuer eux-mêmes sur leurs pouvoirs et déterminer les limites de leur compétence. Bluntschli pensait autrement; mais son opinion est erronée. Un mandataire ne saurait fixer lui-même la portée et l’étendue de son mandat. Si des doutes se produisent, les arbitres doivent en référer à leurs mandats et leur demander l’extension de leurs pouvoirs et une fixation plus nette et plus precise de l’objet du compris.

Now the two theories, therefore, with regard to the arbitral courts are, on the one hand, that they constitute true courts, with all the powers and with all the attributes of courts. They have power or faculty of passing upon the instrument which creates them or determining their own powers as any other court of last resort would do. The other view is that they are simply a collection of agents who, in the case of any doubt being raised, must refer the question for solution to their mandants. As between the two views, it seems to me there should be little doubt as to the correct one. And I find even that such is the opinion, apparently, of the editor of the work of M. Bonfils, who says that article 48 of the Hague Convention, “a consacré l’opinion de Bluntsehli,” that the arbitrators could determine their own powers and pass absolutely upon the question of competency.

I have cited in the brief, commencing on page 28^a references to a number of writers on the subject of international law covering this particular question. We have an eminent English authority in the person of Mr. Hall, who finds in accordance with the ideas we present that: “The arbitrating person or body forms a true tribunal, authorized to render a decision obligatory upon the parties with reference to the issues before it. It settles its own procedure when none has been prescribed by the preliminary treaty; and when composed of several persons it determines by a majority of voices.”

And the opinion of M. Calvo is also to the point:

Les arbitres, une fois nommés, forment, bien qu’ils ne tiennent leurs pouvoirs que des parties, un corps indépendent, un véritable tribunal judieiaire. Ils ont le droit d’interpréter le compromis préalable intervenu entre les parties et par conséquent de prononcer sur leur propre compétence.

I have quoted in the brief, as it has happened, M. Descamps. I need hardly explain to this tribunal that at the time this brief was prepared in America it was as far from my thoughts as well could have been that M. Descamps would appear in this case or have any possible connection with it. The brief was printed in the Government Printing Office in Washington six weeks or two months ago, so that when I quote the opinion of M. Descamps it will be well understood it is not the opinion of the advocate, but M. Descamps, when speaking as a jurist before an eminent collection of jurists and with reference to the action of such a collection of publicists. So we find his language:

L’arbitrage n’est pas une tentative de conciliation. L’arbitre est juge et statue comme tel.

Before all, the language so far quoted, is, as we see from further inspection, in exact line with the language of the civil law quoted in the brief. And upon the question of “Arbitrage,” we find in Vol. IV, Répertoire Générale de Jurisprudence:

Le droit de juger leur propre compétence est la conséquence naturelle du caractère de juges dont ils sont investis par les parties.

We find them spoken of, therefore, by the best authority of which I have any knowledge under the civil law; the best collection, at least of authors of which I have any knowledge, as judges.

Il est vrai que les arbitres ne sont pas revêtus de fonctions publiques et que leurs pouvoirs n’ont d’autre source que la volonté des parties. Mais il faut remarquer que le législateur ne considère pas les arbitres comme de simples mandataires;

differing absolutely, as will be noted, from the language of MM. Rivier and Bonfils in the passages quoted from them. It continues:

Leur sentence a par elle-même autorité de chose jugée; de plus, elle ne peut pas être revisée, quant au fond, par le juge qui est chargé d’y apposer son ordonnance d’exéquatur. C’est done que les arbitres ne sont pas seulement des mandataires, mais aussi des juges; et par consequént, leur sentence doit avoir la même force proban te que les jugements.

And according to our view that probative force which attaches to the judgments is conclusive in its nature. It determines all the issues, as we shall come to see, properly placed before the court.

As fortifying the view which we have desired to present, it has seemed well to us to call the attention of this honorable tribunal to the general rule of interpretation applicable to the “compromis” and applying with absolute force to the body before which we have the honor of appearing, and which in our judgment applied with equal strength and force to the proceedings of the commission of 1868.

We find that this has been discussed in the following manner. I read from my brief, on page 29^a:

Some of the writers upon international law have laid down a rule for the interpretation of the compromis, which rule seems to us in accord with common sense and with the necessities of the situation, and presents to us the point of view from which former Mixed Commission may properly have regarded the instrument they were called upon to construe.

Dans tous les cas où le tribunal arbitral entretient des doutes sur l’étendue du compromis, il doit l’interpréter dans son sens le plus large.

In other words, it ought to interpret it in the sense confirmatory of its own powers. It ought not to give a narrow, restricted interpretation to the instrument under which it acts.

And we have the further consideration suggested by M. Rolin-Jacquemyns (page 29^a of the brief):

La question de compétence ne doit pas être résolue par une stricte interprétation du compromis, mais qu’il faut dans le doute la trancher affirmativement.

Now, if it be granted in an argumentative way that there was a question of doubt raised on behalf of Mexico before the former tribunal, then it became the duty of the former Mixed Commission to interpret the instrument before it in the largest sense and not to give it a strict interpretation. But if we were to say, on the one hand, that it was the duty of the former Mixed Commission to interpret its powers broadly and largely for the purpose of carrying out all the ends sought to be obtained by the two countries, and if we were, on the other hand, to say that nevertheless that interpretation so reached were to be regarded as a nugatory thing, we would place ourselves, as we submit, in an entirely incompetent and entirely contradictory position. We can not say in the one instance “give this instrument a large interpretation,” and in the other, “if you give it the large interpretation we will disregard what you do.” So that we claim for the action and the interpretation of the former Mixed Commission all the effects which naturally flow from the decision of any court whatsoever being competent to pass upon its own powers as this was.

I have inserted at this point, as having a tendency to support the argument now presented, reference to the decision of the Court of Appeals of England, cited in 62 Law Journal (page 29^a of the brief), Gueret v. Andoury, wherein it was held that where parties to a contract have referred to arbitrators the question of its construction, their award is conclusive evidence as to the construction in a subsequent action brought for other breaches of the same contract. And if that rule may prevail, as it undoubtedly does, in disputes which exist between private individuals and where the arbitrator is not invested with any powers proceeding from the consent of governments in themselves sovereign, surely the same rule must apply with added, with multiplied, force in the case of tribunals solemnly sitting to judge questions which have arisen between nations.

The next question to which I desire to invite the attention of this tribunal is: Does the doctrine of res judicata apply to arbitral decisions?

It would seem to us in fact, without any extensive argument, that an affirmative answer must follow from the considerations which have already been adduced. But we have not felt at liberty to present this case to this honorable tribunal upon any assumptions, either of fact or of law, and we are fortunately able to sustain the position we take by a plentitude of citation, both from the civil law and from the common law.

I shall therefore trouble you with references sustaining our position, which will occupy me for a few moments, reading largely from my brief. We find the civil-law rule as follows, as stated in the Répertoire Générale de Jurisprudence, Volume IV (page 31^a of the brief):

Les sentences arbitrates acquièrent autorité de chose jugée comme les autres jugements, dès quelles sont de venues inattaquables par l’expiration de délais établies.

And again, under another title, in the same work (page 32^a of the brief):

Les sentences arbitrates sont de véritables jugements; elles sont done investies de l’autorité de la chose jugée.

As indicated, the consequence necessarily flows from the existence of the precedent condition that they are true courts.

I am fortunately again able to say that on a proposition of this importance in the discussion of a question of this magnitude the common law of England and America is at one with the civil law of the continent of Europe. And the declaration of the rule of common law, cited in my brief, page 32,^a is that—

An award of arbitrators with jurisdiction can not be collaterally impeached for errors or irregularities in the proceedings.

And again:

Whenever any person is given authority to hear and determine any question, such determination is in effect a judgment having all the properties of a judgment pronounced in a legally created court of limited jurisdiction.

I desire for a moment to fortify the situation already given by another reference, which is not in my brief, and which I should be obliged if the court would kindly note, to the American and English Encyclopædia of Law, on “Arbitration and award,” page 795, wherein it is said that, “Even when erroneous, the award, if fairly made, is binding.”

I do not know, but I may fairly presume, that it will be the contention of Mexico that the former award was erroneous; that the court failed to properly appreciate some of the suggestions or implications of evidence from the standpoint of view of Mexico.

But if we could grant that—and on behalf of the United States we deny it—if we could grant that the award being fairly made is binding, and it is a pleasure to be able to say that the fairness of the former award has never been in the slightest degree attacked. We stand here with no suggestion of unfairness of treatment, with no suggestion of evidence wrongly presented before the court, with no suggestion of fraudulent conduct on the part of anybody, and under such circumstances, the award being fairly made, we claim it as binding.

And again I read from the Encyclopaedia of Law (p. 794), not, however, cited in the brief:

The rule is that an award is a final judgment, both at law and in equity, in regard to all the matters within the scope of the submission disposed of by it as between the parties thereto, binding on them for all time, unless it is expressly provided that it shall have binding force and effect for a limited time only.

Following further the discussion contained in the brief (p. 32:)^a

The weight of authority in the United States leans toward making absolute the certain and simple rule that the award of arbitrators, when made in good faith, is final, and that it can not be questioned or set aside for a mistake, either of law or of fact.

I read next from one of the most celebrated of American jurists, one whose name in the United States is national, whose words are always quoted with respect, and who presided over the highest court of the State of Massachusetts for a long term of years, and did much toward settling the jurisprudence of that State as well as of the United States, Mr. Chief Justice Shaw. Speaking of the weight to be given to the finding of arbitrators, Justice Shaw said:

It is within the principle of res judicata. It is the final judgment for that case and between these parties. It would be as contrary to principle for a court of law or equity to rejudge the same question as for an inferior court to rejudge the decision of a superior, or for one court to overrule the judgment of another, where the law has not given an appellate jurisdiction or a revising power acting directly upon the judgment alleged to be erroneous.

And again there are many American and English citations, contained on page 805 of the Encyclopaedia of Law, to which I have referred, to the effect that “where an award is admissible in evidence, it is conclusive between the parties.” And that is the language also of the most excellent English writer cited on several occasions by Mr. McEnerney in his very able exposition of this case on yesterday:

A decision in a former suit in accordance with an award of the arbitrators, to whom the matter should have been referred, would be res judicata; such an award having, as observed by Mr. Justice Bell, in Lloyd v. Barr, the same legal effect as the verdict of a jury and judgment thereon under an issue strictly made up. Mr. Herman, speaking of the law of the American courts, says that a judgment on an award is to all intents exactly of the same force as a judgment on a verdict.

Sir Edward Fry. From what book are you quoting?

Mr. Ralston. Page 125 of Chand on the Law of Res Judicata, referred to yesterday by Mr. McEnerney in his able presentation of the case.

The next question in the regular development of the argument which I have laid out for myself is: Does the docrineof res judicata apply to international arbitral decisions?

We may refer, as incidentally bearing upon the argument, to article 18 of the Hague Convention, which to our mind is rather a declaration of principle than merely an exposition of law intended to apply solely to future arbitrations. For that article says (page 33^b of the brief):

La convention d’arbitrage implique l’engagement de se soumettre de bonne foi à la sentence arbitrale.

M. de Martens. We have this already before us, I think.

Sir Edward Fry. I believe we have all read your brief.

(Some discussion among the arbitrators).

M. de Martens. Yes; we have.

Mr. Ralston. If you have, that will shorten materially my argument.

I have further discussed this matter in my brief and need not spend any particular time now over the subject as to when arbitral awards may be attacked. I have sought to refer to the authorities which were available to me upon that subject.

Sir Edward Fry. I am not aware of any attack being made. Mexico has not attacked the award.

Mr. Ralston. Yes; if I may be pardoned, there is an intimation, a strong intimation, in the answer of Mexico that she intends to attack this arbitral award. She attacks it when she says that it has no force, that she is entitled to go back of it, and that she is entitled to ask at your hands a review of all the facts leading up to the former adjudication. That, as it seems to us, is a very direct attack upon the arbitral award of the Mixed Commission of thirty years ago, and it is for that reason that I have spent as much time and labor as I have in discussing that question. We have to consider the question as to whether the former arbitral award was or was not conclusive of the facts of the case.

I say that Mexico has attacked it. Of necessity she has done so, as will appear from the careful consideration of her answer attached to the replication, for if she admits the jurisdiction of the court, which, in my mind, she does not do by her answer—if she admits the jurisdiction of the court—then the only question which remains, as it would seem to me, for consideration by this tribunal is whether the consequences which we claim flow from the former adjudication; and that is the question to which I desire to address myself.

It is the contention of Mexico that, even granting the jurisdiction of the former tribunal, granting that it had the power to adjudicate all that it then adjudicated, nevertheless that adjudication is not binding for future time as to the amount justly due by her on later instalments to the bishop of California, represented here by the United States. Her contentions, therefore, are two-fold: First, that the former adjudication had no binding character whatsoever upon this court; and, secondly, that whatever weight might be given to it, the consequence which we claim from it as fixing the annual amount of interest to be paid by Mexico does not flow.

It is contended on behalf of Mexico in the letter of Sr. Mariscal, the secretary for foreign affairs, contained in the diplomatic correspondence, that there is but one part of the judgment which is to be considered as decisory in its character, and that we must reject all the considerations leading up to that one single point of final determination. In his letter he contends to the effect that only the “dispositive” or decisory part of the judgment has the force of res judicata. We prepared and submitted to the State Department an answer to that contention on behalf of Mexico, the answer so submitted commencing on page 51 of the diplomatic correspondence. On page 54 the effect of the citation from Laurent is discussed.

Mr. Laurent had been quoted as follows:

The creditor sues his debtor for interest of the principal sum, the judge condemns the debtor to pay. Is there res judicata in respect to the principal? It is supposed that the decisory part of the decision fixed the amount of the principal, and it has been decided that a decision in these terms does not give the force of res judicata with respect to the principal itself.—Citing Dalloz, Chose Jugée.

Beneath is to be found the exact citation from Dalloz to which M. Laurent refers, and, as we argued then, we think on examination it proves to be without force to sustain the contention urged, and, furthermore, as noted below, we find on the very same page of Laurent a discussion of the principle which states it in terms which would be applicable to the present case:

Un jngement accorde à une personne des aliments en qualité d’enfant. A-t-il l’autorité de chose jugée sur la question de filiation? Si la question a été débattue entre les parties, l’afrirmative n’est point douteuse.

The questions which were discussed before the former tribunal, as this tribunal is aware, were the existence of the fund, which was a fact found; the purposes for which that fund was intended, which was found; the obligation of Mexico to pay the California bishops their due proportion of the income of that fund, which was found; the amount so payable, which was fixed, and including in that the rate per cent per year. All of these were fixed, and in addition, the number of years for which there had been default, and, summing up these various elements, the conclusion was reached that some forty-three thousand dollars per year was the quantity which should be paid to the Roman Catholic bishops. The contention of Mexico is, if I correctly apprehend it, that the former adjudication, if res judicata at all, was conclusive merely as to the decisory part, and that decisory part was nothing more than the direction to pay some $904,000, but was not conclusive as to the various elements without which that decisory part could not have existed. Our contention in answer to that is two-fold in character; the first is, that in point of fact the adjudication as to the annual interest does form part of the decisory portion of this judgment, for we find in the opinion of the umpire, given on page 609, the direct statement that—

The annual amount of interest, therefore, which should fall to the share of the Roman Catholic Church of Upper California is $43,080.99, and the aggregate sum for twenty-one years will be $904,700.79.

These are not the last words, of course, of the opinion, but they are as much the decisory part as they could possibly be. They sum up his opinion in a few words, although the concluding lines are:

The umpire consequently awards that there be paid by the Mexican Government, on account of the above-mentioned claim, the sum of nine hundred and four thousand seven hundred Mexican gold dollars and seventy-nine cents ($904,700.79) without interest.

Our first contention, therefore, is that the award itself has included that very thing in its decisory part, and under that contention may be embraced the further one that it is stipulated by the protocol under which this court is convened, that that very fact was found by the arbitrators, for it will be found, reading from page 48^a of the Appendix, and referring to the protocol under which we are acting.

M. de Martens. Which page?

Mr. Ralston. Page 48.

Whereas said mixed commission, after considering said claim, the same being designated as No. 493 upon its docket, and entitled Thaddeus Amat, Roman Catholic bishop of Monterey, a corporation sole, and Joseph S. Alemany, Roman Catholic bishop of San Francisco, a corporation sole, against the Republic of Mexico, adjudged the same adversely to the Republic of Mexico and in favor of said claimants, and made an award thereon of nine hundred and four thousand seven hundred and 99/100 (904,700.99) dollars; the same, as expressed in the findings of said court, being for twenty-one years’ interest of the annual amount of forty-three thousand and eighty and 99/100 (43,080.99) dollars upon seven hundred and eighteen thousand and sixteen and 50/100 (718,016.50) dollars, said award being in Mexican gold dollars, and the said amount of nine hundred and four thousand seven hundred and 99/100 (904,700.99) dollars having been fully paid and discharged in accordance with the terms of said convention, etc.

So that, I think, we are justified in saying that the matter in point of fact is beyond discussion by the very terms of the protocol; but inasmuch as in the answer of Mexico this point is renewed on her behalf, we find ourselves compelled to continue the discussion beyond the point to which it has so far been carried. As this honorable tribunal is familiar with the brief placed before you, I need only state that the common law and the civil law authorities therein contained reach the position that whatever was of necessity implied or flowed as a necessary consequence from the finding of the judgment is to be considered as an integral part of it, and not to be divorced from it, and such has been the language in effect of many French and English courts cited in the brief, and such is the language as cited also from Chand and given by him on pages 48 and 49, not cited in the brief, with illustrations there given. I take a moment to read these citations, as they are not contained in the brief, and I commence on page 47 as giving examples of the rule:

In Gardner v. Buckbee, also, the suit was on a promissory note. The defendant alleged that that note with another was given for the price of a shop which was sold fraudulently by plaintiff. The plaintiff replied that the issue as to the sale being fraudulent had been decided against the defendant in a former suit on the other note, and that decision was held to be res judicata. In Van Dolsen v. A bendroth and Cleveland v. Creviston, a decision for the plaintiff for the amount of the interest claimed in respect of a bond was held to be res judicata in a suit for the amount of the bond, as to the plea of the bond being invalid for fraud, on the ground that that plea ought to have been raised in the former suit. Mr. Herman, citing a number of other cases, says: “In an action on a promissory note where the defence was fraud and the judgment was rendered for the defendant, the verdict was held in another action on another ground, growing out of the same transaction, conclusive evidence of the fraud.* * * On the same principle in an action of assumpsit for goods sold and delivered, a verdict against the vendee on the ground that the same was fraudulent as against the vendor’s creditors is conclusive of fraud in the subsequent action between the same parties for other goods which were not included in the first action.”

Then there are a large number of citations of similar effect, with which I shall not trouble the court at the present time, simply making the reference.

In the discussion of this general subject, contained in the answer of Mexico, reference has been made to Griolet as an authority upon the subject of res judicata, to the discussion of Savigny, which is quite notable in the history of jurisprudence, and to Pantoja upon certain incidental points. I may say that unfortunately I think every reference contained in the answer of Mexico has been erroneous. I should make one single exception—the reference to the letter of Secretary Bayard. We have, with exceeding great difficulty, verified all of them and given the correct pages in the notes, except the reference to Pantoja. That we are entirely unable to verify. We can not find any corresponding pages. I call the attention of the agent of Mexico to that at this time, with the request that he will kindly furnish us with the correct reference to Pantoja. The others, as I have stated, we have found with a great deal of labor.

The first authority discussed by Mexico to the proposition that the legal principle of res judicata applies exclusively to the decision or to the decisory part of the judgment, and that the reasons are not embraced in it, is that of Savigny. That is not the doctrine of Savigny, although that inference might perhaps be drawn from the manner in which the printer has presented the answer of Mexico. Savigny refers to it as a doctrine entertained by various ancient authors, a large number of authors, as he says, but it is not his doctrine, and he so expressly states. But the discussion by Savigny of the general underlying principle is one which I am sure the court must have found extremely interesting, for his discussion is referred to very generally, I suppose, by European writers, and his conclusion might be briefly expressed as that the force of res judicata, or chose jugée, applies to what he terms the objective parts of the judgment; that is, the things which must be found by the court in order to reach a given conclusion, as, for instance, applying it to this case, the amount of annual interest which had to be found before fixing the sum total for twenty-one years, but does not apply to what he terms the subjective reasons or the reasons which bring the mind of the court to conclude that particular things essential in the formation of a judgment are existent; for instance, the force of res judicata, under the doctrine of Savigny, would apply to the fact found that $43,000 per year was due by Mexico to the Roman Catholic bishops of California, but would not apply to the particular reasons which induced the mind of the court to reach that conclusion, and the particular things concluded, the things which enter into, which form the integral and inseparable part of the judgment, form part of the res judicata. Thus he says:

Les motifs (meaning in this sense, as my contention is, as explained by him; that is to say, the objective motifs) font partie intégrante du jugement, et l’autorité de la chose jugée a pour limites le contenu du jugementy compris ses motifs.

He further comments:

Ce principe important, conforme à la mission du juge, a été formellement reconnu par le droit romain et appliqué dans tout son extension.

So that we may cite with absolute reliance, so far as our position is concerned, Savigny, an author of the very highest repute. It is true that Griolet, an author, we may say fairly and justly of very much less celebrity, has been cited on behalf of Mexico as differing from Savigny, and his particular language in the way of difference has been quoted in the answer of Mexico, but, as will appear by reference to the Replication on behalf of the United States, even Griolet qualifies his own language of criticism of Savigny, and so qualifies it as to make that criticism, in our judgment, meaningless, for we find, quoting from the foot of page 5 of the Replication,^a referring to the distinctions made by Savigny between objective and subjective motifs, that Griolet says:

Cette théorie est exacte dans saplus grande partie, parce qu’on voit que M. Savigny considère comme motifs objectifs de la sentence les rapports de droit en vertu desquels la condamnation est demandée, et les rapports de droit que le défendeur oppose au demandeur, pour neutraliser en quelque sorte l’effet des rapports de droit qu’on invoque contre lui, et éviter ou am oindrir la condamnation.

And we follow our citation from Griolet, with illustrative cases given by him, tending to sustain the very doctrine for which we contend here to-day, and showing, as appears by the extracts on page 6, and which I will not trouble you by reading, that when he comes to apply his own theory of law, he exactly accords in application with Savigny, and agrees with the contention now advanced by us.

I desire now, and in connection with the discussion of this question at this point, to refer the court to some statements of principle to be found in another treatise upon this subject, the treatise of M. Lacombe, “De l’autorité de la chose jugée.” I shall read from paragraph 68, on page 67, as illustrative of his belief in the absolute necessity for what I may term a substantial following of the doctrine of Savigny, although, as I shall note, he makes some minor criticisms which have no effect or force, so far as this case is concerned, in view of the summing up of his doctrine to be given hereafter. He says:

Je dois dire tout d’abord que l’autorité de la chose jugée restreinte au dispositif seul ne donnerait nullement satisfaction aux nécessités sociales qui Font fait instituer, que les auteurs et les tribunaux qui ont proclamé en principe cette restriction n’auraient jamais pu l’appliquer rigoureusement à la pratique, et qu’ils ont dû, tout en la maintenant en théorie, y apporter dans l’application des dérogations sous le nombre et l’importance desquelles elle disparaît presque complètement.

I think the remark just made has a very direct bearing upon the course taken by M. Griolet in this work upon the same subject—that is, as laying down the principle that the force of chose jugée attaches only to the dispositif of the judgment, immediately proceeding as he does to give a succession of cases cited in the replication of the United States which show absolutely that the formal application of such a rule to a state of facts at all similar to that presented before this honorable tribunal is absolutely impossible. He does not apply the rule laid down by him when the necessity arises.

The writer from whom I am now quoting, M. Lacombe, on page 68 indicates the way, however, which has been resorted to by such writers as M. Griolet to avoid the effect of the rule which he has undertaken to maintain, and in the note this writer says:

Nous devons du reste ajouter immédiatement que la jurisprudence applique la faeulté d’interprétation du dispositif par les motifs d’une maniére trés large, ce qui arrive à restreindre dans une forte proportion les inconvénients de la doctrine que nous combattons,

in other words, to get rid of their own doctrine by interpretation so as to enable courts to arrive at a reasonable result.

Another contention, I read from page 74, paragraph 74:

74. C’est done dans l’ensemble du jugement sans égard à sa division en diverses parties qu’il faut puiser tous les renseignements qui feront connaître si l’exception est ou non applicable.

The summing up in a few words of this particular author of his theory is contained in, a note at the foot of page 79, as follows:

L’autorité de la chose jugée couvre non-seulement la solution proprement dite donnée par le juge, mais encore tous les rapports de droit qui sont liés à cette solution par le rapport de principe à conséquence, et peu importe, quani à ce, que l’opinion du juge à leur égard se trouve exprimée dans le dispositif du jugement ou dans ses motifs.

We have therefore the opinion of the continental text writers sustaining the position taken by the United States that the elements which of necessity enter into the judgment form part of the chose jugée. We have the opinion of the French courts, innumerable opinions, almost, cited in the brief to precisely the same effect. We have the opinion of Savigny indicating the same, and I am happy to be able to add, as I have in a note on page 7^a of the replication, that the courts of the Netherlands entertain precisely the same view, and we see in the brief it is the same as that of the courts of the United States and of England. In fact, when it comes to a careful analysis of the situation, the objection which is raised by Mexico on this behalf seems absolutely to disappear, for if it were otherwise, when would there be an end to litigation? Suppose the position taken by Mexico were correct; suppose that it might be said that the dispositif of the judgment is the only thing to be looked at, and in that dispositif you must only look at the one fact that the defendant has been compelled to pay a certain sum without having the liberty of analysing that statement into its respective and necessary parts, the parts which come together to form the whole; let us therefore imagine for a moment the position in which Mexico might be placed. It calls for the exercise of imagination, as I think must be conceded. We obtained, let us say, under the former arbitral convention, an award against Mexico for $904,000. According to Mexico’s contention, nothing is settled by the dispositif except that single fact. Well and good. The United States on a subsequent occasion, or the bishops under whatever form of pleading may be appropriate under the circumstances, bring a suit for one of the instalments embraced in that twenty-one years. If the doctrine of Mexico be correct, why might they not do it? Mexico might say, You obtained an award against us once for $904,000, and the reply of the United States, assuming Mexico’s position, would be, Yes, we received an award of $904,000, but you can not plead that award, because the court has no right to analyse its parts and see what years that particular award covered. Therefore, accepting the very position of Mexico, she would be unable to plead that prior judgment as against a subsequent demand covering part of the same period made by the United States, unless the second tribunal possessed the right to inspect the wdiole record and to determine from that whole record whether the particular question was in point of fact presented to, discussed by, and passed upon by the preceding court; so that it seems to us that the contention of Mexico, if it be once carefully examined, can be reduced to what logically we might term an absurdity, and that I say, of course, with every respect for my friends on the other side.

While I do not care to trouble this tribunal with reading of matters already submitted to it in printed form, I may be pardoned for again inviting your attention particularly to the decisions of the Netherlands, which seem to us to be in exact accord with right reason upon this point, and we find a case before the Netherlands high court of justice in which it was advised by the procureur-général that every decision of the judge which by reason of the contentions of the parties he might and has given with regard to their rights, is included in the subject-matter of his judgment, no matter in what particular part thereof the decision might be found.

And again, in the discussion by Dr. Opzoomer:

Whatever has once passed through all the forms of a suit and is legally decided by the judge must never afterwards be subject to any doubt.

And further discussing, he says:

From what has been here discussed, it appears that as the legal bases are actually fundamental parts of the judgment of the judge, they should be entirely independent of the place in which they appear in such a judgment. Whether they are found in the so-called dispositif or whether they be anywhere else, is a matter of perfect indifference. They become authority not because of the place in which they appear, but because of the inseparable connection in which they stand to the immediate decision. Those who tear the legal basis from the decision follow the abstract method of treatment, which in the nature of things regards as divided that which our reasoning power divides.

And so there are other decisions quoted, and these decisions are given a practical application by the courts in this country, as well as, I should say, by the courts of England, France, and America, and by the courts of Germany, if we assume as authoritative the opinion of Savigny.

There is one point to which I want to invite your attention for just a moment, a point which I think was not mentioned in the prior arguments, and to which brief reference might be made, and that is the legal position occupied by the bishop of Calif ornia at the time of the cession of Upper California to the United States. Our contention is that the bishopric was at that time a corporation, and such also is the language of the Mexican representative on the occasion of the former hearing, for he says in the Transcript, page 395, paragraph 126:

The merely canonical creation of the Church of California may have given it a standing in the Universal Church as a religious body, but it would not have been, sufficient to entitle it to the recognition of the sovereign of the country, hence the said church was created by virtue of a decree of the Mexican Congress. This, which occurred in a nation officially Catholic, is the same as is established by the laws of the United States to entitle a corporation to be acknowledged by public law, as has been repeatedly decided, in accordance with the public law of all nations.

The point is a minor one, but before concluding I wanted to call your attention to it as illustrating that at the time of the cession of Upper California the Roman Catholic bishop of California was a corporation, was entitled to hold as such, and to all the rights as such, and when Upper California passed into the control of the United States, then, as matter of public international law, his corporate capacity, which had been fixed under the Mexican law, still adhered to him. It is true there was and is no established church in the United States, but churches are in the United States recognized as corporate bodies. Probably the laws of every State provide for their actual incorporation, so that they may sue and they may receive devises of property, and they may make conveyances and accept gifts as may a private individual.

Sir Edward Fry. I suppose you will show the succession of the present bishops to the bishops in 1875?

Mr. Ralston. That is in evidence.

Sir Edward Fry. That is not before us.

Mr. Ralston. I beg your pardon, it is already filed—filed but not printed. It was filed with the secretary-general, I think, before the meeting of the court, but we did not have it printed, and we have not laid great stress upon the fact, for the reason that officially, at least, the United States of America is the plaintiff here, and we have assumed that it may be presumed to be the party plaintiff, suing on behalf of all persons who may be interested, and that it would be charged, in the event of a judgment in its favor, with the duty of distributing the funds to whoever might be interested without there existing any necessity from the point of fact for a formal presentation of these persons before this court. We proceed upon that theory, at least we entertain that theory rather than proceed upon it. We entertain that theory, because it was, for instance, the theory entertained at the time of the Geneva award. It will be recalled that there a large sum of money was awarded against England because of certain injuries found to have been inflicted on American citizens. The question as to what particular American citizens were injured, or the proof of injury in certain instances, was not brought to the attention of that tribunal, but it was apparently, if I remember correctly, conceded that that was a question between the United States and its citizens rather than one which would be considered by the arbitral court. I make these suggestions as to our own view concerning the principle controlling the case, notwithstanding the fact that we have filed proofs of succession. We have not, therefore, for the reasons indicated, laid any great stress upon them.

Above and beyond all the matters which we have submitted, or at any rate which have been submitted by me, rests the fact, the substantial fact to our minds, of the innate justice of the claim, and without undertaking to refer even to all the details of evidence which have been presented here, and well presented, by Senator Stewart and Mr. McEnerney, I simply want to take the liberty of calling your attention to this single thing: That there was a Pious Fund of large amount; that the bishops were in the enjoyment of that property; that it was devoted to certain ecclesiastical uses and was intended so to be devoted by the various donors, who had contributed to it for the period of substantially one hundred and fifty years; and that, without warning, and without reason, save it may have existed in the revolutionary or warlike necessities of the moment so far as Mexico was concerned, that fund was laid hands upon and was turned to a purpose far from that to which it had been intended, devoted to entirely other ends, and remains—so far as we are aware, except for the amount paid pursuant to the award of 1875—remains to this day devoted to entirely other purposes, setting at defiance the will of the donors and, as we contend, setting at defiance the natural and intrinsic justice of the case. And we may, for the moment, brush aside all the considerations of res judicata, which are considerations of substantial moment and substantial justice in themselves, and look to this one solitary fact—the people and religious institutions to which this fund was devoted primarily have been deprived of it. And we stand here, on behalf of the Government of the United States, which may not be assumed to be ecclesiastically in any particular sympathy with one church rather than another—we stand here, as I say, on behalf of these institutions, and on behalf of the Government of the United States, asking this court to rectify what we believe to be a great wrong to American citizens entitled to American aid and to American intervention.

And we assume that this fact of substantial right may not be lost sight of, as we can not believe it will be lost sight of, in any of your deliberations concerning this question, and that you will note, and as I am sure you will take pleasure in noting, that while, on the one hand, you can sustain the adjudication of the former Mixed Commission and thereby give renewed dignity and solemnity to the adjudications of every commission and every arbitral court yet to come for hundreds of years—while that rests in your hands, that great, magnificent power I might almost say rests in your hands, at the same time, it will be possible for you to exercise it and exercise it in the fullest without in any degree derogating from those principles of natural right and intrinsic justice to which it is always our pleasure to appeal.

My attention is called to the fact that before closing I ought not to neglect to say that this claim was promptly presented to the attention of the Government of Mexico after the severance of Mexico from the United States. You, Mr. President and honorable arbitrators, will have found reference in the decision of the umpire to the fact that the archbishop had stated that he had in 1852 presented this claim to the attention of the Government of Mexico and that it had been refused, but that the arbitrator did not desire that such presentation should be considered as inaugurating a right to claim interest upon interest from the date of such presentation, particularly because there was no written evidence of the fact. While offering to the court at the present time very little evidence that may be considered as strictly new, we have filed with the secretary-general, but it has not yet been printed, the deposition of Mr. Doyle, and attached to that we have the original letter written by the Mexican officials in answer to the demand made by the archbishop at that time—1852—so that which rested merely in word of mouth in 1875, and upon which for that reason the umpire was unwilling to base any portion of his award, has now been fully proven, and adds, if such a thing might be necessary, additional force to the award given by the umpire in 1875.

At the same time it justifies me in calling attention to one further feature of the award of 1875, and that is the liberality displayed by the umpire toward Mexico. He rejected the payment of interest upon interest at that time because of the want of this particular proof that we adduce to-day, and he accepted as fair, under alt the circumstances of the case, an equal division between Upper and Lower California—a division which to-day would not be, as we shall submit further in evidence (the particular evidence will be before the court before the week terminates), which would not be in any degree fair, for while in Lower California there are, so far as any evidence before the court tends to show, not to exceed two thousand Indians if division among Indians be the basis of division, in the State of California there are fifteen thousand, and in the territory which we regard as forming part of Upper California under the treaty of Guadalupe Hidalgo there are sixty-eight thousand. So that, if we are to assume the number of Indians in the first instance to be the basis we should have as seven to one, and if we assume the other method of division as two to sixty-eight.

Mr. Asser. Is this all of this territory?

Mr. Ralston. Yes; it is all of this territory, except that as we understand Spanish claims extended far enough to include Oregon, Washington, Idaho, and part of Montana and Wyoming.

That whole vast territory known under the name of Upper California under Mexico included California, Nevada, Utah, part of Colorado, Wyoming, and New Mexico, and all of Arizona.

Sir Edward Fry. Were they known as California at the date of the severance?

Mr. Ralston. Yes, sir; at the date of the treaty of Guadalupe Hidalgo, 1848.

Sir Edward Fry. The Territory of Washington surely was part of the United States before 1848?

Mr. Ralston. Yes, sir; the State of Washington, as it is now going up to Puget Sound and to the British possessions (showing the map). I will give you a fair illustration of the size of these countries by comparing this State of Nevada, which is only about half in area of the size of California, by comparing this State of Nevada with Holland. This single State is eight times as large as Holland, and the State af California is about fifteen times as large as Holland. There are 180,000 square miles, roughly, in the State of California and over 90,000 in the State of Nevada.

So we submit that when we ask the court to rest whatever conclusions it may reach primarily upon this question of res judicata, we are asking something which is really in the interest of Mexico; but at the same time that we ask that, we are asking, as we believe, the affirmation of a principle of the highest possible importance in all international discussions.

Mr. President and honorable arbitrators, I thank you for your attention.

M. le Président. Le tribunal se retire pour délibérer et la séance est suspendue jusqu’à 2 h. ½.

(La séance est suspendue jusqu’à 2½ heures.)

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