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

sixième séance.

22 septembre 1902 (après-midi).

La seance est ouverte à 2 h. 20 sous la présidence de M. Matzen.

M. le Président. La parole est à l’agent des Etats-Unis de l’Amérique du Nord.

Mr. Ralston. I want to say just one word in reply to the observation of Mr. Beernaert of this morning, a word which perhaps is entirely unnecessary, but as an observation of the same general tenor has been several times submitted, it seems to me that our ground should be made absolutely and entirely clear.

The protocol under which we are acting provides that—

all pleadings, testimony, proofs, arguments of counsel, and findings or awards of commissioners or umpire filed before or arrived at by the mixed commission above referred to, are to be placed in evidence before the court hereinbefore provided for, together with all correspondence between the two countries relating to the subject-matter involved in this arbitration, originals or copies thereof, duly certified by the departments of state of the high contracting parties being presented to said new tribunal.

The record of the old case, what we term in English the record, and which is termed on the continent “dossier,” happened to be entirely in the possession of the Department of State of the United States, and for that reason, and for that reason alone, and not because there was any special understanding between the parties, the United States printed that dossier, that record, and it is before you. The United States also had printed a complete copy of the diplomatic correspondence between the parties, contained in the same volume; but I desire to state, and to make entirely clear, that that was not printed because any special duty so to do rested on the United States more than upon Mexico, for, as is stated, “originals or copies thereof, duly certified by the departments of state of the high contracting parties, being presented to said new tribunal,” it therefore became equally the duty of Mexico to present certified copies of that diplomatic correspondence. The United States chose to perform that duty, and Mexico did not, but that has not involved any hardship or inconvenience to the court, one copy having been presented. Perhaps what I am saying is entirely unnecessary, but I want to make clear the situation of the United States. I think there has been a confusion between us in the application of the word “dossier.” When we have said that it was our duty to present it, we have referred to the “dossier” of the old case, and it was our duty to present that, because it rested entirely within our control. The special duty rested on us to present that, but so far as what you may term the “dossier” of the present case is concerned, it is our clear and manifest understanding that each party, Mexico as well as the United States, shall present to this court such documents and such pleadings, allegations, as it may see fit, and as it may think incumbent upon it to present or advantageous to present. I want to make this absolutely and entirely clear to my friends upon the other side, so that they may not think that we regard any duty resting upon us which in fact does not rest upon us under the protocol. We have stood ready to perform our whole duty under the protocol. We hold ourselves ready still to do it, but we do not wish our willingness to be made the foundation of any claim of right.

M. le Président. L’agent des Etats-Unis Mexicains a la parole.

M. Emilio Pardo. Je crois que Pincident qui vient d’être provoqué par M. l’agent des Etats-Unis n’a qu’une importance tout-à-fait secondare, parceque nous pouvons dire que l’incident est vidé une fois que la réclamation des Etats-Unis et la réponse du Gouvernement Mexicain avec les pièces à l’appui ont été présentés à la Cour. Cependant, comme il y a, plus ou moins caché, une espèce de reproche contre la conduite du Gouvernement Mexicain dans cette affaire, je dois appeler l’attention de la Cour sur un point qui me paraît tout-à-fait bien établi par le protocole du 22 mai dernier. D’après ce protocole, article 7:

Dans les 30 jours suivant le dépôt du mémorial à l’ambassade mexieaine, l’agent ou l’avoeat de la République du Mexique déposera au Département d’Etat de la République des Etats-Unis de la même façon et avec la même réferénce un mémorial de son opposition è ladite réclamation.

D’accord avec cet article, mon Gouvernement, dans le délai fixé par le protocole a dépose au Departement d’Etat des Etats-Unis la réponse de la République Mexieaine. Il a déposé cette résponse, et il l’a accompagnée d’un livre imprimé qui se trouve à la disposition de la Cour.

Quand nous nous sommes apercus que la réponse du Gouvernement mexicain n’avait pas été envoyée par le Départment d’Etat des Etats-Unis, nous avons eu de très justes motifs pour nous étonner, d’autant plus que cette réponse n’ayant pas été remise le livre imprimé se trouvait cependant dans les mains de l’agent américain et était présente devant la cour, sans prendre soin de faire remarquer que cette pièce appartenait à la réponse du Gouvernement mexicain, et que si l’annexe était préente le mémorial, qui contient la réponse demon Gouvernement, devait aussi être présent.

Peut-être n’avons-nous pas bien compris les termes du protocole, mais nous pouvons citer à l’appui de la conduite du Gouvernement Mexicain le texte sur lequel je viens d’appeler Pattention de la cour. Nous avions entendu et compris que toutes les pièces présentées à la cour formaient le dossier commun, et c’est justement la remarque que M. Beernaert, notre conseil, a eu l’occasion de faire devant la cour dans l’audience d’aujourd’hui, c’est-à-dire que ce dossier ne peut pas être considéré comme appartenant exclusivement aux Etats-Unis, mais qu’il contient les pièces et documents que le Mexique a l’honneur de présenter à la cour, avec sa réponse et les annexes présentées avec cette réponse.

Je crois que l’incident, comme je le disais tout à l’heure, n’a aucune importance et qu’il peut être considéré entièrement vidé; mais je me suis considéré comme obligé de justifier devant cette Cour la conduite de mon Gouvernement, invoquant le texte si précis et si clair de l’article dont lecture vient d’être faite.

Mr. Ralston. Mr. President and honorable arbitrators, just to add one word. I quite agree with the honorable agent for Mexico that the matter is of entirely secondary importance, and I would not have thought of troubling you with the slightest reference to it to-day had it not been on several different occasions made the subject of apparent complaint against the United States. For that reason and for that reason alone I mention it, not because it is of any importance. I should be very sorry, however, if any words which I have said should be construed in any manner as a reproach on the Mexican Government, for anything of that kind is as far removed from my thought as can possibly be. I assume that the agent of Mexico performs his duty and his whole duty according to his understanding of the requirements of the case. I trespass upon your time for a moment more. The protocol does not, in our opinion, require that Mexico should have served upon us the written document to which allusion has been made, the Pleito de Rada. It was so served before I left Washington, although the protocol only provided that it be deposited with the Mexican embassy, and that we have an opportunity to examine it; but having been delivered to us, we have felt it our duty to bring it here at the” earliest possible moment, and to safeguard ourselves to deposit it with the secretary-general of this court. It is entirely open to both parties; everything that we have placed before the court is open to the court and to our friends on the other side.

M. le Président. La première question c’est que tous les documents sont à la disposition des deux parties; l’autre question est sans importance; nous donnerons seulement acte au protocole des déclarations de MM. les agents.

M. Emilio Pardo. Puisque nous sommes en train de faire des rectifications, je me permettrai d’appeler, un peu tardivement, l’attention de la Cour sur un point qui peut avoir une certaine importance. Je dois commencer par avouer que j’aurais dû faire cette observation avant, mais il est toujours temps de réparer une erreur, et je me hâte de faire la rectification suivante: Dans les procès-verbaux qui ont été lus à l’audience de ce matin on a fait constater que j’avais l’honneur de comparaître devant la Cour en qualité de ministre plénipotentiaire et d’envoyé extraordinaire de la République mexicaine auprès de la Cour des Pays-Bas. Le fait n’est pas tout-à-fait exact: bien que j’ai reçu de mon Gouvernement ma nomination de ministre plénipotentiaire je ne suis pas encore accrédité; par conséquent en ce moment je ne comparais devant la Cour qu’en ma qualité d’agent du Gouvernement mexicain et non en qualité d’envoyé extraordinaire de la République du Mexique que je n’ai pas encore parce que je n’ai pas eu l’occasion de presenter mes lettres de créance. La remarque a son importance, parce qu’une fois mon earactère diplomatique établi et mes lettres de créance remises, je ne pourrai pas continuer la représentation de mon gouvernement comme agent de la République mexieaine.

Je prie la Cour de faire constater dans le procès-verbal cette rectification parce que j’y tiens absolument comme ayant une importance spéciale.

M. de Martens. Mais, Monsieur Pardo, vous avez signé le procès-verbal.

M. Emilio Pardo. On y fait plusieurs fois mention de ma qualité de ministre plénipotentiaire et d’envoyé extraordinaire et on m’attribue un appointement que je n’ai pas encore devant la Cour.

M. de Martens. Alors, vous désirez que ce soit supprimé?

M. Emilio Pardo. Absolument.

M. le Président. Maintenant l’incident est clos, et le conseil des Etats-Unis de l’Amérique du Nord a la parole.

Mr. McEnerney. Mr. President and honorable arbitrators:

At the hour when the tribunal rose this forenoon I was addressing myself to the first of the five grounds upon which we claim that the arbitral court of 1868 had jurisdiction to make the award that it did make in favor of the archbishop and the bishop of California against the Republic of Mexico. You will recall that the argument in support of this proposition was that the former arbitral court did decide and had inherent power to decide that it had jurisdiction of the particular case. The decision of a court that it has jurisdiction of a cause is often not final. It is often not final in the sense that its decision that it does possess jurisdiction is open to review in a higher court. This can not be true of an international court, because in the very nature of things, there is no tribunal to which the decision of an international court holding that it has jurisdiction of a particular case can be appealed. This proposition is reasoned out to completion and sustained by ample precedent in the statement and brief of the United States, written by the learned agent of the United States. I shall not stop to dwell upon the argument which he makes, nor refer to the authorities with which he sustains his proposition. There is, however, one precedent to which I desire to call the attention of the tribunal, not to be found in the brief of the learned agent of the United States. It is to be found in 2 Moore’s International Arbitrations, page 1242. It refers to the convention between the United States and Mexico created under the treaty of 1839.

Sir Edward Fry. What volume?

Mr. McEnerney. 2 Moore’s International Arbitrations, page 1242.

From 1821 down to this time there have been five treaties between Mexico and the United States. Four of them were ratified; one not ratified; these were the treaties of April 11, 1839, January 30, 1843, November 20, 1843 (not concluded), February 2, 1848, July 4, 1868, and May 22, 1902. A history of all these treaties and the proceedings, under them will be found in Mr. Moore’s work on International Arbitrations (pp. 1209–1286).

During the session of the joint commission created by the treaty of 1839 claims were presented against Mexico for damages which were said to have been sustained on account of the seizure of an American schooner called the “Topaz.” This seizure had been made the subject of diplomatic negotiations between the United States and Mexico for the settlement of some claims asserted by the United States as a sovereign. The Mexican commissioners thereupon applied to Daniel Webster, then the Secretary of State of the United States, to know whether these diplomatic negotiations excluded from consideration by the mixed commission claims presented by individuals for damages claimed on account of the seizure of the “Topaz.”

The following is an extract from Mr. Webster’s reply addressed to the Mexican commissioners:

The Mixed Commission under the convention with that Republic has always been considered by this Government essentially a judicial tribunal with independent attributes and powers in regard to its peculiar functions. Its right and duty, therefore, like those of other judicial bodies, are to determine upon the nature and extent of its own jurisdiction as well as to consider and decide upon the merits of the claims which might be laid before it.

And in connection with other claims before that same commission, Mr. Webster said, as is reported by Mr. Moore in the same volume and on the same page:

That body is in effect a judicial body, and it belongs to its members alone to determine the rights of claimants under the convention.

With the citation of this precedent, I pass to the second ground upon which we support the affirmation by us that the arbitral court of 1868 had jurisdiction to make the award which it did make.

I invite the attention of the tribunal to Article III of the treaty of 1868, at page 32 of the appendix.

It is there provided that:

It shall be competent for the commissioners conjointly, or for the umpire, if they differ, to decide in each case whether any claim has or has not been duly made, preferred, and laid before them, either wholly or to any, and what, extent, according to the true intent and meaning of this convention.

In other words, it was the duty of the commission, and it was given power by the agreement of the contracting parties, Mexico and the United States, to decide whether any claim came properly within the true intent and meaning of this convention.

The question of jurisdiction raised by Mr. Mariscal is whether the claim upon which the former award was made came within the true intent and meaning of the convention of July 4, 1868.

It is therefore a point which his Government expressly stipulated that court should decide.

Our third point is that Mexico, after our claim had been presented and while it was under consideration by the Mixed Commission, extended the life of the commission, extended the time within which it should do its work, and in one instance revived the commission after it had expired by limitation. The convention which revived the commission after it had expired by limitation is to be found at page 38 of the appendix.

The preceding treaty expired on the 31st of January, 1873, while the treaty at page 38 was not ratified until March, 1873, and not exchanged nor proclaimed until July, 1873. So that after this claim had been presented to the arbitral court for its determination and after the power of that arbitral court had lapsed, because the time within which the decision had to be rendered and within which the court might live had expired, Mexico covenanted and agreed to revive that same arbitral court.

Sir Edward Fry. I have not heard the exact date of the presentation of the memorial.

Mr. McEnerney. You will find it on the first page of the docket entries, at page 3 of the Transcript. It is December 31, 1870. You will notice, and I might call to your attention in passing, the first three items of the docket entries. The arbitral court of 1868 was required to meet within eight months after the exchange of ratifications. Its time for meeting expired July 31, 1869. On that day there was one commissioner present, who continued the session until the 10th of August, 1869, when, the other commissioner being present, the court was organized (2 Moore, 1296–1297).

By reference to the first item of the docket entries, page 3, it will be seen that on August 13, 1869 (three days after the organization of the arbitral court), the Department of State of the United States referred the claim of the archbishop and bishop of California to the arbitral court, (Tr., p. 3). On that day, to wit, August 13, 1869, there was no other claim pending before the Department of State except the claim of date July 20, 1859, (Tr., 5–8). Subsequently, to wit, on March 31, 1870, a statement was filed (Tr., 3). This statement is to be found in the record (pp. 8–9). The original memorial was filed December 31, 1870. The memorial is in the Transcript (pp. 9–15). April 24, 1871, a motion to dismiss the claim and a brief in support of that motion were filed by Mr. Cushing. To this motion and brief a reply on behalf of the United States was filed March 1, 1872 (Tr., 3). All of these steps had been taken prior to the expiration of the life of the arbitral court, which expired on January 31, 1873, under the treaty to be found at page 35 of the appendix. By ratifying the treaty, to be found at page 38, Mexico revived the arbitral court. We insist that in so doing she revived it for the decision of all undecided cases. By implication she covenanted that the commission had power to decide the cases.

Sir Edward Fry. Some of them.

Mr. McEnerney. We submit that she covenanted that the arbitral court had power to decide all of the cases. If Mexico did not intend to agree that the arbitral court had power to decide all of the cases, she should have specified those which she claimed the commission had no power to decide. Of course, we do not claim that Mexico covenanted that the commission could rightfully decide all or any of the cases against her. But we do insist that by reviving the arbitral court, and failing to withdraw, or except from its consideration, any of the cases then before the court, she necessarily agreed that it had power to hear and determine all of them.

The fourth point upon which we predicate the jurisdiction of the arbitral court of 1868 will require a short statement.

We rely upon the proposition that the jurisdiction of an arbitral court is created by the agreement of parties. The maxim that consent can not give jurisdiction has no application to a tribunal which is created and whose jurisdiction is defined by agreement or consent of the parties litigant.

It is a universally recognized principle of jurisprudence that ratification is equivalent to precedent authorization. What Mexico could have agreed to do in advance she could have ratified after it had been done. If Mexico had power to confer jurisdiction upon the commission of 1868, she had power to ratify the exercise of jurisdiction by the commission. Her ratification might have been expressed in words or it might have been implied from a course of conduct. Her course of conduct might have created against her what is known in English and American jurisprudence as an estoppel in pais, or some bar of that general nature. By such an estoppel she would be prevented from asserting that the court had no jurisdiction.

We assert that it is not open to Mexico to claim that that tribunal did not have jurisdiction. Mexico made no objection to the jurisdiction of the arbitral court formed under the convention of July 4, 1868, until the writing of Mr. Mariscal’s letter on the 28th of November, 1900, forty-two years after the convention of 1868, and ten years after she had made the last payment under the former award. His letter is at page 27 of the Diplomatic Correspondence. During the pendency of the cause before the former arbitral court it was not intimated by Mexico that she claimed or would claim that the former commission had no power to decide the case.

Mr. Cushing’s motion to dismiss the claim “because the injuries complained of were done before February, 1848, and this commission has no jurisdiction of the claim” (Tr., 68), implied that the commission had the power to hear and determine the question whether the injuries complained of were within the true intent and meaning of the convention of July 4, 1868. The very submission of the motion to the commission implied the power and duty of the commission to decide it.

The objection was not to the jurisdiction of the court to decide upon the claim, although it was stated in that form, but it was a claim by Mexico that the demand of the archbishop and the bishop of California were not within the provisions of the convention. The motion of Mr. Cushing was therefore not an attack upon the jurisdiction of the court. On the other hand, it was an affirmation of its jurisdiction to decide whether the particular claim here involved came within the intent and meaning of the convention of July 4, 1868.

After it had been decided there was an exchange of diplomatic representation between the two Governments, but the jurisdiction of the arbitral court was not called into question. On the contrary, as I shall presently show you, the jurisdiction was affirmed by Mexico.

I now refer to the Diplomatic Correspondence, commencing at page 77 and concluding on page 83.

The commission under the convention of 1868 and the conventions supplementary thereto expired by limitation on November 20, 1876. On the next day, November 21, 1876, Mr. Avila, counsel for Mexico, addressed a letter to Mr. Mariscal, then envoy extraordinary and minister plenipotentiary to Washington, in which he called his attention to three matters: First, the Weil and La Abra Mining Company’s claim; second, the Pious Fund; and third, cases where the umpire had made allowances, subject to proof that the claimants enjoyed American citizenship.

Following is what Mr. Avila said (Diplomatic Correspondence, p. 77):

In the case No. 493, of Thaddeus Amat and Others vs. Mexico, the claim presented to the United States Government on the 20th of July, 185.9, and to this commission during the term fixed for the presentation of claims in the convention of July 4, 1868, was to the effect that the “Pious Fund” and the interest accrued thereon should be delivered to claimants; and though the final award in the case only refers to interest accrued in a fixed period, said claim should be considered as finally settled in toto, and any other fresh claim in regard to the capital of said fund or its interest, accrued or to accrue, as forever inadmissible.

In letter No. 2 (Diplomatic Correspondence, p. 78) Mr. Mariscal forwards Mr. Avila’s letter to Mr. Hamilton Fish, the Secretary of State of the United States, who replied under date of December 4, 1876. In his letter he says that by the second article of the treaty of 1868 Mexico had agreed to consider the matters adjudged by the commission as final and conclusive, etc.

Mr. Fish then added:

I must decline, however, to entertain the consideration of any question which may contemplate any violation of, or departure from, the provisions of the convention as to the final and binding nature of the awards, or to pass upon, or by silence to be considered as acquiescing in, any attempt to determine the effect of any particular award.

To this Mr. Mariscal replied four days later, and said:

In his second statement (that relating to the Pious Fund) Sr. Avila intended only to express his Government’s opinion as to the impossibilhy of claiming at any future time the capital of the Pious Fund, the accrued interest on which is now going to be paid in conformity with the award. He endeavors to avoid, if possible, a future claim from the interested parties, through the United States Government, but does not pretend to put in doubt the present award.

In other words, Mr. Mariscal not only does not dispute the validity of that award, but when the Secretary of State of the United States declares to him that he (the Secretary) will not undertake to determine in a diplomatic way what the effect of that award may be, nor will he permit Mr. Mariscal by his (the Secretary’s) silence or acquiescence to put a construction upon it, Mr. Mariscal, thereupon and upon behalf of Mexico, promptly answers that he only seeks to interpret the award, but does not pretend to put in doubt its validity (foot of page 80). Mr. Mariscal forwarded the correspondence to the foreign office in Mexico. Hence we have the statement of the minister of foreign affairs of Mexico, at the foot of page 81, under date of May 1, 1877, five or six months afterwards, in which he says:

In regard to the case of the archbishops and bishops of California, the Mexican Government, far from putting in doubt the final effect of the awards, has declared in the second of said statements that, in conformity to article 5 of the convention, the whole claim presented to the commission must be considered and dealt with as finally arranged.

In other words, Mexico contended that the award was valid. She insisted that the award foreclosed all claims for subsequent instalments. By this insistence she claimed the benefit of that award; claimed that it was valid. When Mr. Avila wrote his letter he attempted to forestall all further claim. He realized the effect of the decision, for he said in section 156 of his argument in support of a petition for revision (Transcript, foot of page 640):

If the decision rendered is sustained, the claimants will probably pretend to give it a permanent effect, alleging that by it they have been declared a right to receive a determined sum annually.

We do insist that the decision is entitled to a permanent effect, and that by it we have been declared a right to receive a determined sum annually.

Mr. Avila realized that we would certainly make this claim, and that is the reason why he sought to interpret, through the medium of diplomacy, an award or judgment, the validity of which, with all his learning and familiarity with the case, he never dreamed of calling into question.

I shall pass the question of the jurisdiction of the former arbitral court with the following brief observations: Mexico had the power to confer jurisdiction; she had the power to ratify the exercise of it. It would not be consistent with the dignity of a nation nor the obligation of a litigant to accept an opportunity of success without its accompanying opportunity of defeat. Mexico never challenged the jurisdiction of the court which she created by her own solemn act and before which she went for judgment, a judgment by which we would have been bound had we lost; a judgment by which Mexico is bound, she having lost. It is a fundamental rule of the jurisprudence with which I am familiar, and it must be a fundamental principle in all jurisprudence that res judicata and estoppels generally are mutual. Where they bind one of the litigants they bind the other.

Defeat upon the merits before the arbitral court of 1868 would have concluded us for all time from asserting the validity of our claim. Hence it must likewise conclude Mexico for all time, as she lost and we prevailed.

In this connection permit me to just read two or three lines from Chand on Res Judicata, page 46:

The general rule of law maybe briefly stated to be that where a recurring liability is the subject of a claim, a previous judgment dismissing the suit upon findings which fall short of going to the very root of the title upon which the claim rests, can not operate as res judicata; but if such previous judgment does negative the title itself, the plaintiff can not reagitate the same question of title by suing to obtain relief for a subsequent item of the obligation.

If we had been defeated before the arbitral court of 1868 upon the ground that our case lacked merit, we would have been foreclosed and properly and rightfully foreclosed forever. If it should be decided that we have no claim, that this decision is not controlled by the former award operating as res judicata and is not just, would it be in accordance with the jurisprudence which pertains to all the countries of the world for us next year, the year after, and the third year to request our Government to intervene with Mexico for the payment of annual interest commencing with October 24, 1903, upon the ground that those installments had not been the subject of consideration by this tribunal? That is the question to be decided here.

The fifth point upon which we affirm the jurisdiction of the tribunal of 1868 is that as an open question the convention of July 4, 1868, had jurisdiction to hear and determine the case of the Pious Fund. What was the claim made before the former tribunal? It was that on the 24th day of October, 1848, and on the same day in each of twenty years thereafter, making twenty-one in all, there had accrued to American citizens claims against Mexico. It was for the settlement of just such claims that the tribunal of 1868 was created and organized.

The treaties use the word “injuries” originating within the twenty-one years. Of course it was the function of the commission to decide what an injury was. The tribunal will find on pages 93–99 of the transcript an argument by Mr. Doyle which, it seems to me, forecloses reply. The argument is that an “injury” within the meaning of the law is the withholding of a right by one person from another.

It is true that the convention of July 4, 1868, contained the following clause (Appendix, p. 32):

It is agreed that no claim arising out of a transaction of a date prior to the 2d of February, 1848, shall be admissible under this convention. (Appendix, 32.)

But in the supplementary convention of February 8, 1872, the United States and Mexico gave this clause a binding interpretation. It is recited in the supplementary convention that the convention of 1868 was “for the settlement of outstanding claims that have originated since the signing of the treaty of Guadalupe Hidalgo on the 2d of February 1848.” (Appendix, 36.)

This is the true construction of the convention of 1868, and it is the one which was adopted by Sir Edward Thornton in this case, and also in the case of Belden vs. Mexico, likewise decided by him. (Tr., 588.)

The former arbitral tribunal had power to interpret the convention of 1868. If it had no such power, it would follow that the moment there was a suggestion made that a particular claim was not within the convention, that moment the arbitral court would cease to entertain the claim; for if the court had no power to decide that the claim came within the convention, it had no power to decide that it did not come within the convention. But, as we have above shown, it was expressly agreed between Mexico and the United States that the umpire had power to decide in each case whether any claim “has or has not been duly made, preferred, and laid before them, either wholly or to any, and what extent, according to the true intent and meaning of this convention.” (Appendix, 32.)

I submit that upon all five of these grounds the arbitral court had jurisdiction to make the award which it did make. In the consideration of this question of jurisdiction I beg you, Mr. President and honorable arbitrators, to keep in mind that jurisdiction is the power to hear and determine a cause. Jurisdiction does not depend upon its rightful exercise. Jurisdiction does not depend upon the correctness of the decision. If it were otherwise, nobody would ever know whether a tribunal had or did not have jurisdiction. It would then be said: The tribunal had jurisdiction if it correctly decided the case, but it did not have jurisdiction if it incorrectly decided the case.

I come now to the proposition, the third in our case so far as res judicata is concerned, that—

15. It is a settled rule of English and American jurisprudence that the principle of res judicata applies not only to the thing directly adjudged, but also to all matters necessarily involved therein, i. e., in the thing directly adjudged.

The agent of the United States has devoted much learning and research to establishing the proposition that this same rule obtains in all European countries. I shall argue this question bat briefly, leaving the exposition of the doctrine to him. I shall argue the rule as it exists in English and American jurisprudence and I shall attempt to show that it has its foundation in a wise philosophy which must underlie all systems of jurisprudence and which must exist among all the peoples of the earth.

I leave to be discussed by the learned agent for the United States authorities to be found at pages 48–49 of Chand, which deal with cases involving installments and recurring liabilities like those involved here.

I desire to call to your attention the decision in Outram vs. Morewood 3 T. R., 346, by Lord Ellenborough, when Chief Justice of England, and cited by Chand, page 4.

Lord Ellenborough said:

A recovery in any one suit upon issue joined on matter of title is equally conclusive upon the subject-matter of such title; and a finding upon title in trespass not only operates as a bar to the future recovery of damages for a trespass founded on the same injury, but also operates by way of estoppel to any action for an injury to the same supposed right of possession. And it is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. The recovery of itself in an action of trespass is only a bar to the future recovery of damages for the same injury; but the estoppel precludes parties and privies from contending to the contrary of that point or matter of fact which, having been once distinctly put in issue by them, or by those to whom they are privy in estate or law has been, on such issue joined, solemnly found against them.

Chand says (page 40, section 28):

A matter in issue in a suit is also distinct from the subject-matter, and the object of the suit, as well as from the relief that may be asked for in it, and the cause of action on which it may be based; and the rule of res judicata requiring the identity of the matter in issue will apply even when the subject-matter, the object, the relief, and the cause of action are different. There is a general unanimity as to the matter in issue being altogether independent of the internal character of the subject-matter of the suit.

Let me illustrate with a case within my own experience. Several years ago a very rich man died in San Francisco. A woman claimed to be his widow. She filed a petition in the court of administration, in which she asked that she be allowed five thousand dollars per month for her support. The children of the deceased filed an answer, in which they denied that she was the widow of the deceased or had ever been married to him. The trial of that case occupied forty-five days. There was no question in the case but the question of whether the relation of husband and wife had ever existed between the parties. When the case came to be decided the judge entered an order in which he denied her application. The order (or judgment) read: “It is hereby ordered that the petition of (naming her) be, and the same is hereby, denied.” The condemnatory part of the judgment was simply a denial of the petition. The only thing litigated in the case was the question whether she was the wife of the deceased or not. This issue was necessarily included in the judgment, because if she had been the wife she was entitled to the money; if she had not been she was not entitled to it. So that the judgment organically included the question of whether she was his wife or not. Subsequently, upon a petition to the probate court for the distribution of the estate, the woman came forward again. She said: “I am the widow. My former petition was for a widow’s allowance; now it is for an undivided interest in the estate.”

The court held that res judicata applied and in effect said:

The decision denying to you a widow’s allowance was predicated upon the finding of fact that you were not the widow of the deceased, and as that finding was necessarily involved in the decision denying you any money for support during the administration of the estate, you stand foreclosed from asserting your widowhood in any litigation between you and the children of the deceased, whatever form the litigation may take.

It is that principle which we seek to establish as the law of res judicata applicable to this controversy.

It is said by a continental writer cited by Chand, which will be referred to by the agent of the United States—indeed it is obvious—that res judicata would have no function—it certainly would have no function in America, where it constitutes a very large body of the jurisprudence—if it were limited to the condemnatory part only. All or nearly all the litigation to which res judicata is applicable involves cases where it is invoked to bar litigation about matters which form the fundamental bases of the condemnatory part of a previously pronounced judgment.

The next point to which I pass is that—

16. Of the facts necessary to an award in favor of the United States the only one which is not res judicata under the judgment of the former arbital court is that of nonpayment of the annual interest since February 1, 1869. This fact is conceded by the protocol. The whole case is therefore controlled by the principle of res judicata.

The validity of this proposition requires the consideration of but one question, which is a very simple one. What question here urged to defeat a recovery would not have defeated the recovery in the former arbital court? Not one. Read the opinion of the umpire, also that of the American commissioners. The umpire’s was necessarily brief for the reason that he had hundreds of cases under consideration within the year previous to the expiration of the commission. But take and read either of those opinions and then ask yourselves what fact necessary to an award here was not necessary to an award there? What question can be litigated here which could not have been litigated there? What question—save the question of the statute of limitations—urged here would not have defeated an award there had Sir Edward Thornton and the arbital court, under the act of 1868, taken the view then advanced and now advanced by Mexico? Some questions of fact and some questions of law were involved there as well as here. That tribunal, like this tribunal, was a judicial body. So Mr. Webster said and so all the publicists have said when dealing with this subject.

What question then decided by that tribunal against Mexico can now be decided in its favor without involving a decision that the conclusion reached by the former arbital court was incorrect either in point of law or point of fact? That is the test. If there is no proposition now necessary to our case which was not necessary to the former award, then there is no question not concluded by the principle of res judicata.

The seventeenth point—and I merely state it—is that—

17. The objections urged by Mexico against the decision of the former arbital court do not, as she maintains, impeach the jurisdiction of that tribunal, but rather attack the justice of the decision upon the merits.

Mexico’s entire argument, when analyzed, is to the effect that the former arbital court misdecided the case. I have already had occasion to say that the jurisdiction of a tribunal does not depend upon the rightful exercise of that jurisdiction.

18. I now pass to the point advanced in the answer of Mexico, which is that this claim is barred by the statute of limitations.

Under the treaty of 1868, and under certain supplements to that treaty, it was provided that the Government which was debtor at the close of the commission should pay to the Government which was creditor a named sum of money on the 31st of January, 1877, and pay the balance in equal installments of not less than $300,000 each year thereafter. Mexico made her first payment on the day it became due, which was January 31, 1877. Her last payment was made on January 21, 1890. Forty days after that date, on March 1, 1890, Senator William M. Stewart, counsel for the bishops of California, addressed to the Department of State a request for its intervention with Mexico for the payment of the later installments. A reference to this letter will be found at the foot of page 23 of the Diplomatic Correspondence in the Transcript. The date of this letter was March 1, 1890, forty days to a day after Mexico had made her last payment under the former award. “On August 3, 1891 (page 23, Diplomatic Correspondence), the matter of these installments became the subject of diplomatic representation by the United States to Mexico, and was the subject of diplomatic negotiations to May 22, 1902. I call your attention to the fact to show that there has been no delay upon the part of the persons in interest in the assertion of this claim. Within forty days after the last payment under the old award they requested the intervention of their Government, and within eighteen months after that last payment the Government of the United States had moved in the matter.

New Mexico, among other defences, claims that the demand is barred by section 1103 of her Civil Code and by an act passed by her in 1894, three years after this claim had become the subject of diplomatic representation by the one government to the other.

Our answers to this claim, based upon the statute of limitations, are these:

1. Such a plea is not allowable under the protocol of May 22, 1902.

By that convention two questions have been submitted for decision.

(a) Is the claim, as a consequence of the former decision, within the governing principle of res judicata? and

(b) If not, is the same just?

A claim barred by limitation is as much a just claim as one not so barred.

2. A statute of limitations is a law of the forum. In this case whatever the statute of limitations may be in Mexico, it is a law for Mexican tribunals alone, and not for international courts.

3. We submit that it ought not to be and that it is not allowable under the law of nations for a sovereign, while the claim of a citizen of another sovereign is the subject of diplomatic negotiation between the powers, to pass a law of limitation and thereby bar or attempt to bar the claim. This claim became the subject of diplomatic negotiation on August 17, 1891 (Tr., Diplomatic Correspondence, 8).

And yet, Mexico avers in her answer that the claim became barred by a statute of limitations enacted by her September 6, 1894. (Replication, 30.)

4. There is no statute of limitations in international law except such as may be agreed to exist for a particular case by provision in a convention between two or more powers.

Of course, in this connection I draw the distinction, which is drawn by all the text writers, between prescription which is a method of acquiring title to land or other properties, by occupation, and a formal enactment which bars the remedy but does not destroy the right.

5. The statutes of limitations of Mexico have no extra-territorial effect and cannot destroy the claim of non-resident creditors.

6. If Mexico had desired to avail herself of the plea of her statute of limitations, she should have declined to arbitrate or (failing that) she should have insisted upon a provision in the protocol whereby she could have obtained the decision and judgement of the court upon the question whether this claim was effectively barred in an international tribunal by a law peculiar to Mexico, territorially limited, and enacted to control proceedings and remedies in her own domestic courts. She failed to take either of these steps.

7. According to the law of Mexico the claim is not barred.

19. I have now arrived at the last subdivision of the argument as I planned to make it to you, Mr. President and honorable arbitrators. I shall not undertake to consider this head in any great detail, although I have prepared it in considerable detail and shall furnish it for the consideration of the tribunal. It is that the defences attempted to be set up by Mexico in her answer are not sufficient to defeat the award claimed by the United States. I consider these defences one after another in my brief, now nearly prepared. I need not consider them all orally. I shall therefore pass to the last point which Mexico makes in her answer, and that is with respect to the point which constitutes the volume called “Pleito de Rada.”

I think that we shall be able to make the nature and history of the litigation very clear to this tribunal. Mexico, in the seventh paragraph of her answer, declares that no doubt the counsel for the United States will be very much surprised to know that the title to the estates conveyed to the Pious Fund by the Villapuente and De Rada deed had been defeated in litigation and therefore lost to the fund. If the title had been defeated by litigation, it would not make any difference to our case, because we are here claiming under a sale made by Mexico.

The Villapuente and De Rada property, moreover, was in the possession of the bishop of the Calif ornias in 1842. Possession is proof of title, which will not be overcome by an interlocutory and unexecuted judgment of 90 years before. Mexico claims that the title was invalidated in 1749, ninety-three years before the time when the bishop was in the peaceful possession of the property and surrendered it to Mexico. What we rely upon here is the sale of that property by Mexico. Whether she sold a good title or a bad title is unimportant. She is answerable in either event for the price.

I shall presently show to you, however, that the construction which the learned counsel upon the other side put upon this litigation is not sustained in any degree.

What were the facts?

The Marquis de Rada died in 1713, one hundred and thirty years before the act of October 24, 1842.

His widow, the Marquesa de Rada, claimed his entire estate in the probate court. She based her claim upon her dowry and her rights as tutor of two sons by a former husband; also on certain other indebtednesses due from the marquis to her. She claimed that the marquis owed to her more than the value of the entire estate. The estate was appraised. Upon the petition of the marquesa and upon proof that the estate was insufficient to pay her debt, and upon a comparison of the debt and the value of the estate, the whole estate was awarded to the marquesa. This occurred in the year of her husband’s death, 1713. In 1718 the heirs of the Marquis de Rada instituted litigation and made two charges—concealment of goods and undervaluation. They insisted that the marquis had had other property which had been hidden, and that the appraisers have undervalued the property which had been exhibited. They charged that it was not true that the estate was insufficient to pay the debt and averred that it was more than sufficient so to do. They insisted that the result of the concealment of goods and of the undervaluation by the appraisement was that the Marquesa de Rada had obtained the entire estate of her husband, when the estate was not only sufficient to pay her debt, but sufficient to leave an excess to the heirs. They, the heirs, therefore prayed that the appaisement should be set aside and the case reheard. They (these heirs) were defeated in all of the courts to which they appealed until the case came before the royal and supreme council of the Indies at Madrid, where, in 1749, the inventories were set aside, and the cause was remitted to the court of first instance to hear and determine the rights of the parties. It is down to this date that this bound volume called the “Pleito de Rada,” produced by Mexico, brings the history of the litigation.

If you will look at the Transcript from pages 518 to 523 you will see a statement made by Pedro Ramirez for the opinion of counsel upon this subject of the litigation. Mr. Ramirez’ statement continues the history of the litigation to the year 1842. It appears therein that on January 31, 1829, the Pious Fund was condemned to pay $158,175.00 to the heirs of the Marquis de Rada. The old decree of the court of last resort, you will keep in mind, was made in 1749, and the last decree in 1829, eighty years afterwards. One will naturally inquire, how did it happen that this litigation culminated in a decree that the heirs of the Marquis de Rada should receive from the Pious Fund of the Californias $158,175.00. The inquiry is easily answered. The marquesa had transferred her estates to the Pious Fund of the Californias. The Pious Fund of the Californias was thereafter successor in title and interest of the Marquesa de Rada. The court evidently found that the estate of the marquis exceeded the debts due to the marquesa by $158,175.00. The court therefore necessarily confirmed the title of the marquesa already transferred to the Pious Fund, subject to a lien of $158,175.00.

This is not the last we hear of that $158,175.00. Whether that judgment was ever paid or discharged, or whether it was upon appeal or in any other litigation, or before the court which rendered it, or otherwise set aside or annulled, we have no means of ascertaining.

In 1842 an execution was levied upon the Cienega del Pastor, the estate of which I spoke this morning, and which we claim should be added to the capital of the Pious Fund, if the cause is not controlled by res judicata, to satisfy the judgment for $158,175.

These were the proofs made before the former arbitral court. What happened? The American commissioner said, at page 526, that the Cienaga del Pastor belonged to the Pious Fund, but that he found that it was subject to an attachment for $158,175, issued in the litigation already detailed, and as there was no evidence to show that Mexico ever sold the property, or obtained anything for the property, he refused to allow the Cienaga del Pastor to be calculated as a part of the capital of the Pious Fund. The necessary evidence has been now produced by us to show that Mexico did sell this property for $213,750, and unless she can show that she paid the judgment of $158,175 we are entitled to have the price added to the capital, unless the case is concluded by res judicata.

We submit that instead of defeating the benefaction by the Pleito de Rada, we find that Mexico defeated us out of the allowance of $213,750 on the last arbitration to satisfy the only claim that the heirs of the Marquis de Rada had upon the benefaction conferred of the Marquesa de Rada and the Marquis de Villapuente upon the Pious Fund.

I am about to bring this much protracted argument to a close.

In doing so, I desire to express my deep appreciation, Mr. President and honorable arbitrators, for the patience and attention which you have granted to me.

It must be very gratifying to the high contracting parties by which the present tribunal was constituted that after many years of dispute the contention between them is soon to be closed forever.

But it is not alone to the two leading Republics of the New World, who have brought a controversy involving New World questions to the Old World for decision—I say it is not to these two Republics alone that the present arbitration is of great interest and moment.

It should be, and no doubt it is, highly gratifying to the powers signatory to the convention which created the Permanent Court of Arbitration at The Hague that the first case is to be submitted for decision to jurists chosen by the high contracting parties from the most distinguished in all Europe, with the single eye to a decision which, from the character and great learning of those who make it, should command and would receive universal acceptance.

For the high purpose with which these two high contracting parties were thus animated, they deserve the respect and commendation of all civilized society.

It is not alone on account of the large amount involved, nor for the reason that it is to settle a dispute between two conspicuous nations of the world that this case is of universal interest and transcendent importance; but it is important in a far greater degree, because it is intimately connected with a movement of recent times to put the intercourse amongst nations on a high and permanent plane, consistent with the objects of good government, which are the peace of the world and the welfare of human society.

This tribunal has in its keeping in no small measure the future of that great movement.

And in submitting our case, whatever may b$ its results, we feel certain that the tribunal will enter upon its consideration and decision with the learning, rectitude of purpose, and sense of responsibility which are befitting its greatness and importance.

Mr. Ralston. I submit to the desire of the court either to proceed this afternoon or to defer until to-morrow morning.

M. le Président. Vous pouvez procéder, s’il vous plait.

Mr. Ralston. Mr. President and honorable arbitrators: In the proper and orderly presentation of the case brought before you, it has seemed fit on behalf of the United States that there should first be presented and dwelt upon with thorough emphasis and elaborate discussion the various facts which led up to the former decision, and I think I may congratulate myself personally upon the fact that the various elements which entered into the judgment before reached have received ample and elaborate discussion before you. I believe it has been made manifest from the argument which has so far proceeded that there was a Pious Fund of the Californias; that it was a fund of vast extent, a well-known fund; that its proper administrators were the Catholic Church through its various agents; that Mexico, having had control of that fund, and having herself voluntarily assumed a certain relationship to it, by virtue of these several facts entered into a distinct obligation to a certain branch of the Catholic Church—and that was to pay the interest of the fund to its representatives. All these facts, I say, I believe have been thoroughly demonstrated. They were demonstrated before the former court. All of the considerations which have been discussed here to-day and up to this time, in the course of the argument, were considered by the former court—the incidental questions of church and state, the obligations the state might put itself under to render certain services or to pay certain moneys to a particular religious body, all were amply considered.

While, therefore, we have believed on behalf of the United States that there should be the fullest, the most complete exposition of all of these preceding facts, at the same time it has strongly been borne in upon us that the substantial, that the real question upon which this case must turn would be whether the decision of the prior arbitral court created that state of affairs to which we in English give the name res judicata—borrowing the term from the Latin—and which on the continent is better known in civil jurisprudence under the name of chose jugée. We have believed that the facts to which I have adverted brought about in themselves when embodied in a judgment that condition or force which constituted chose jugée and would govern this case, and we primarily rely upon this position.

Chose jugée is said to rest—giving a free interpretation to the Latin maxims—upon two things, first, that the interest of the public requires that an end should be put to suits; and second, that no one should be twice vexed for the same cause, and we invoke this principle on behalf of the complainant here.

The question first offering itself for the consideration of this tribunal is to a degree a novel one, and that is whether there should be given to the utterances of an arbitral court all of the weight which we attribute to courts in general. And that is the first proposition to which I desire to address myself.

We shall insist that an arbitral court is a court of high dignity; that in favor of its jurisdiction all necessary intendments are to be indulged; that its awards are to receive as full execution as would be granted to the awards of any other court.

I say in international jurisprudence the question may, I believe, be regarded as a novel one. I am not able to cite this tribunal to any case where it has been distinctly stated that the judgments of arbitral courts as between nations are to be given the same sanctity as will be accorded to the judgments of the most ordinary courts passing upon the most trivial disputes between man and man. And I count it—if I may be permitted so to say—I count it a matter of extreme good fortune, a matter of the gravest importance to public interest, to international interest, that the first case presented before this tribunal should involve a question of such widespread importance and dignity, deeply involved as it is in the successful conduct of arbitrations for the entire future.

For, as it seems to us, if the judgments of arbitral courts are not to be given at least as high sanctity as is now accorded to a judgment of the most inferior courts, then may we not expect that such courts will be resorted to in the future.

Mr. McEnerney in his very thorough and very learned address has pointed out to you the fact that the Mexican minister of foreign affairs himself admitted that the judgments of arbitral courts were entitled to the benefit of the plea, or exception as it is termed in the language of Europe as a rule, and that the plea of res judicata is as to them to be accorded as great dignity and has as much force as pertains to those of any other nature.

But the language used on behalf of Mexico has not always been uniform.

In order that its change of position may be most clearly understood, I refer to the Mexican answer contained in the exhibits attached to the replication, in which the quotation is made from the letter of Secretary Bayard. It is said on page 26:^a

Decisions of international commissions … are not regarded as authoritative, except in the particular case decided. They do not in any way bind the Government of the United States, except in those cases in which they were rendered.

At the foot of page 26 I have given the entire language contained upon this particular point in the letter of Mr. Bayard, and I quote it for a moment:

But, aside from this criticism, I must be allowed to remind you that decisions of international commisions are not to be regarded as establishing principles of international law. Such decisions are moulded by the nature and the terms of the treaty of arbitration, which often assume certain rules in themselves deviations from international law, for the government of the commission. Even when there are no such limitations, decisions of commissioners have not heretofore been regarded as authoritative, except in the particular case decided. I am compelled, therefore, to exclude from condsideration the rulings to which you refer, not merely because they do not sustain the position for which they are cited, but because, even if they could be construed as having that effect, they do not in any way bind the Government of the United States, except in those cases in which they were rendered.

It seems proper at this time, and in connection with the citation from Secretary Bayard’s communication, to make a certain explanation. There is known in the English and American law the doctrine of stare decisis—a doctrine which, I believe, perhaps does not exist under continental jurisprudence. That is to say, our courts consider themselves bound by the decisions of law had in prior cases. The rule is not one uniform at all in its operations. If the court to-day believes that the prior enunciations of law have been erroneous, the court will often diverge from them; but it is held many times that it is even better to adhere to an erroneous view of law, which has been accepted by the general public and acted upon, than to depart from it and establish a new line of decision.

It is conceded under English and American practice that when decisions with relation to the law are given, the general public will be so controlled by them in their relations of property that to depart from them would involve hardship. That may not be conceded with regard to the doctrine of res judicata, nor is there the slightest connection between the two.

Res judicata refers to litigation had between the same parties and having relation to the same general matter. Then the doctrine of res judicata compels adherence to the finding of fact, or of law in connection with the fact, once found by the court. The doctrine of stare decisis, which is really the doctrine upheld by Señor Mariscal, applies and refers to general enunciations of law, and does not ever affect subsequent proceedings between the same parties and having relation to the same subject-matter. And when we come, in the light of this explanation, to examine the paragraph cited from Secretary Bayard, we find that there was an attempt made on the part of the Spanish Government to invoke in its favor a decision had in a certain case which had existed between the United States and England. The facts in the two cases were somewhat different, the parties were entirely different. And so, while Señor Muruaga might have seen fit to appeal to the decision between the United States and England as tending to establish a certain principle of law, certainly Señor Mariscal could not appeal to the expression of Secretary Bayard as referring to res judicata. It was a matter had between other parties, the subject-matter somewhat varying. We are not compelled to discuss the question as to whether Secretary Bayard was correct or was not correct in saying that certain enunciations of law would not be considered as binding in subsequent international relations.

Now I mention this matter particularly and at this point because the same error, the same confusion, continues to exist in Sr. Mariscal’s mind, and is illustrated in the correspondence between the two Governments, and is also illustrated by the example to which I have just called attention, to be found in his answer; so much so that Sr. Mariscal, states that it does not appear that arbitral decisions have the force of res judicata.

But what is the rule of res judicata as it prevails in English and American jurisprudence? I quote from my own brief, which is before this tribunal, and reading from page 20^a—

The English and American rule is summed up in the first edition of the American and English Encyclopaedia of Law, title “Res Judicata,” volume 21, page 128, as follows:

When a matter has once properly passed to final judgment without fraud or collusion in a court of competent or concurrent jurisdiction, it has become res judicata, and the same matter between the same parties can not be reopened or subsequently considered.

And we find to similar effect, article 1351 of the French civil code, which I think has been subsequently followed throughout the countries of Europe:

L’autorité de la chose jugée n’a lieu qu’a l’égard de ce qui a fait l’objet du jugement. Il faut que la chose demandée soit la même, que la demande soit entre les monies parties et formeé par elles et contre elles en la même qualité.

The declaration of law which I have already indicated is entirely applicable to English and American jurisprudence. The first point, then, which will arise when we come to consider particularly the American and English definition is whether the matter which was formerly adjudicated upon passed to judgment in a court of competent or concurrent jurisdiction. In other words, was the former tribunal competent to pass upon the matters presented to it? Its jurisdiction was fixed by the treaty of 1868. That its judgments were intended to be final and conclusive is, I think, a matter of important consideration at this moment, and we find that the President of the United States of America (I read from Appendix, page 32^b) and the President of the Mexican Republic

hereby solemnly and sincerely engage to consider the decision of the commissioners conjointly or of the umpire, as the case may be, as absolutely final and conclusive upon each claim decided upon by them or him, respectively, and to give full effect to such decisions without any objection, evasion, or delay whatsoever.

And again, from the last part of the second paragraph of Article III on the same page:^c

It shall be competent for the commissioners conjointly, or for the umpire if they differ, to decide in each case whether any claim has or has not been duly made, preferred, and laid before them, either wholly or to any and what extent, according to the true intent and meaning of this convention.

In other words, they were given the entire jurisdiction to pass upon the matters brought before them.

Sir Edward Fry. Would you allow me to interrupt you at this moment? In Article II it is agreed that no claim arising out of a transaction of a date prior to the 2nd of February, 1848, shall be admissible under this convention. Did not your claim arise out of the decree of 1842?

Mr. Ralston. That is a question which was very greatly discussed before the former tribunal, and the answer to it, I take it, is this: It is true there was a transaction had before 1842 which fixed the relation of the parties, but the transaction upon which the suit was brought was the subsequent taking of the interest by Mexico—the taking of the money after the exchange of ratifications of the treaty of 1848. That is to say, the groundwork, if you trace it back, is to be found long prior to 1848, but the transaction in relation to which suit was brought was the taking of the money.

Mr. McEnerney calls my attention to this, which occurs on page 35.^a

Sir Edward Fry. Page 35 of what?

Mr. Ralston. 35 of the appendix.

Whereas a convention was concluded on the 4th day of July, 1868, between the United States of America and the United States of Mexico, for the settlement of outstanding claims that have originated since the signing of the treaty of Guadalupe Hidalgo on the 2nd of February, 1848, by a mixed commission limited to endure for two years and six months from the day of the first meeting of the commissioners, etc.

In the same sense that this case might be said to arise oat of a transaction prior to the 2nd of February, 1848, referring to, let us say, the Republic of Mexico, it might be said to have arisen out of the prior action of Spain with relation to the same affairs, or out of any act which went toward constituting or creating the Pious Fund.

I am discussing at the present moment the question of the jurisdiction of this tribunal. Mr. McEnerney has referred in his argument to the fact that the jurisdiction of the tribunal to pass upon the question just mentioned, as well as upon all the other questions which might be raised before the court, was confessed by Mexico. In the first part of my brief, and beginning on page 6,^b I have tried to arrange the dates in such manner that the attitude of Mexico at particular times and the condition of this particular case would appear together. It will be borne in mind that there were some four extensions of the original convention of 1868. At the time of the first extension a motion to dismiss had been filed by Mr. Cushing, which raised absolutely the right of the tribunal to proceed, and raised particularly the question just mentioned. I have cited in my brief, on page 4,^c the motion to dismiss of Mr. Cushing. It is found on page 67 of the Transcript.

Sir Edward Fry. What was the date of that motion?

Mr. Ralston. The date of that motion was April 24, 1871.

Sir Edward Fry. It is not given on page 67, is it?

Mr. Ralston. I think so. It is given in the docket entries on page 3.

Sir Edward Fry. April 24, 1871?

Mr. Ralston. Yes, sir; April 24, 1871; motion to dismiss filed by Mr. Cushing, and I will read it, as it is a matter of some importance. He moved to dismiss:

1. Because the act of incorporation of the petitioners as corporation sole did not authorize them to claim property beyond the limits of the State of California.

2. Because the petitioners show no legal interest in or title to the Pious Fund in controversy.

3. Because the petitioners had a legal remedy in the Mexican courts which they were bound to pursue and exhaust before coming here.

4. Because the injuries complained of were done before February, 1848, and this commission has no jurisdiction of the claim.

The very question of jurisdiction was raised and was before the tribunal at the time the decision was reached. Knowing that fact as Mexico did; knowing that the tribunal’s jurisdiction was challenged,—for it was done by herself—she proeeded to conclude the extension. The convention providing for the extension of the time within which the joint commission should settle claims was signed between the two countries April 19, 1871. That was five days before the motion, and the ratifications—for the convention had, of course, no validity whatsoever until the exchange of ratifications—the ratifications were exchanged February 8, 1872. Note the further fact in this connection that the exchange of ratifications occurred eight days after the original convention had expired by limitation.

Sir Edward Fry. The ratifications of December, 1871?

Mr. Ralston. I do do not think I can have made any mistake.

Sir Edward Fry. The proclamation was February, 1872.

Mr. Ralston. That is the one signed April 19th.

Mr. McEnerney. At the top of page 38 is the treaty which was ratified after the other had expired.

Sir Edward Fry. According to your book, it was ratified December, 1871.

Mr. Ralston. If I may ask the court to turn to page 35, it was signed April 19. Ratified means to say, ratified by the Senate of the United States, but a treaty does not become effective on ratification by the Senate of the United States. That has simply reference to the action of the United States, not the action of Mexico, but the joint action which gave life to the whole convention, and before which it had no life whatsoever, took place, as stated, on February 8, 1872, and was therefore, eight days after the original tribunal had ceased to have any powers whatsoever, and while yet this motion was pending before it, Mexico, by the exchange of ratifications, for she was bound by nothing until the ratifications were exchanged, gave new life and new force to the commission, with all the pending questions before it.

Let us go a step further. A second convention is provided for. The convention to which reference has just been made extends the powers of the commission to January 31, 1873, as will appear stated on page 6. Now, on January 31, 1873, the date of the expiration of the second convention, to which reference has been made, the motion to dismiss, filed by Mr. Cushing, was still pending and undetermined, although, on March 1, 1872, a reply thereto had been filed on behalf of the claimants at that time. Now then, with that motion then pending for more than a year previously—eighteen months previously—on November 27, 1872, a further convention is concluded, extending the joint commission not exceeding two years, etc.

We have, therefore, a second act by Mexico again referring, for that is the practical effect of it, to the old commission the determination of this very motion to dismiss. Now the point becomes of some importance. (I may perhaps be pardoned for a moment for digressing from what I intended as the order of my remarks.) The point becomes of some importance when we bear in mind the unquestioned rule with regard to arbitral tribunals that the party submitting the question has the right to withdraw that question from the jurisdiction of the tribunal before which he has placed it. It was in the power of Mexico, notwithstanding even the first submission, if you will—it was in the power of Mexico to say, “we will agree to extend the functions of this commission, but we will withdraw from it the consideration of the Pious Fund case because we do not believe it comes within the purview of its powers.” Mexico never said that. I think the language of all the text writers with regard to arbitration (I have summed up many of them in the brief before you) is in substance that before the arbitral action be taken one party or the other may withdraw from the arbitration, and in the very withdrawal cancel jurisdiction. No such step was taken by Mexico. Now, reading from the brief, page 6:^a

On November 27, 1872, a further convention was concluded, reviving and extending the duration of the joint commission for a period not exceeding two years from the day on which the functions of the commission would have terminated according to the convention of April 19, 1871. In other words, the commission was extended until January 31, 1875. Ratifications of this convention were exchanged July 17, 1873, nearly six months after the commission had expired by virtue of the convention of April 19, 1871, and it was proclaimed July 24, 1873.

We have, therefore, this condition of affairs that not once, but twice, Mexico agreed, even after the functions of the commission had expired, to extend its powers and complete all the work there was before it—to decide the pending case, for the extension meant nothing else. There was, therefore, one period of eight days, a second period of six months, during which the convention was functus officio.

At the time of this second extension, reading from the brief, page 6:^a

At the time of the expiration of the functions of the commission by the convention signed April 27, 1872, and ratified July 17, 1873, to wit, on January 31, 1875, final argument for the claimants and an exhibit attached thereto had been offered by the agent of the United States (January 25, 1875).

The original motion submitted by Mexico to dismiss the cause yet remained pending and undetermined.

Again we find that by the further convention, concluded November 20, 1874, ratifications of which were exchanged January 28, 1875, and proclamation issued January 25, 1875, the functions of the commission were extended to January 31, 1876. And at this time when this extension went into effect the Pious Fund case was still pending and undetermined, the difference of opinion being announced on May 19, 1875. Here we note something of a change of condition. There had been the disagreement between the two arbitrators resulting in sending the case to the umpire, and while that new condition of affairs existed Mexico agreed to a new convention allowing the umpire to determine the very question upon which the arbitrators had differed, and the award of the umpire was made November 11, 1875, about ten months after the exchange of ratifications, and but for that exchange of ratifications there would have been no final judgment in this case, for the arbitrators had disagreed and the case rested undetermined. So that I say, step by step, not once but twice, three times, four times over, Mexico has confessed the jurisdiction of the former tribunal over this very subject-matter, and we insist that it does not lie in the mouth of Mexico, to use the legal expression, now to say, after her repeated submissions of this cause to the former arbitration, that there was want of jurisdiction, or that this claim originated before 1848, or that the facts were other than were found by the umpire, nor can she present any defense which finds its foundation in any fact prior to the date of the rendition of the judgment by the umpire.

M. de Martens. May I ask you, Mr. Ralston, could Mexico stop the submission of the umpire?

Mr. Ralston. Yes, sir.

M. de Martens. How could she do it? She was obliged to put it before the umpire.

Mr. Ralston. No, if you will pardon me. She may well have been obliged to submit the first question before the umpire, yes; but she was not obliged to continue the case before the umpire after the first convention had expired by its terms. She could have said, yes, we will agree to a new convention, but we do not think that the arbitrators have control over this particular case; we do not think that this particular case comes within the purview of the original convention, and therefore we will decline to allow the Mixed Commission to take further cognizance of it. That in brief, is our position.

M. de Martens. But I think Mexico was obliged to accept the jurisdiction of the umpire in the whole case, do you not think so?

Mr. Ralston. Precisely. I think so absolutely, because I think the umpire had the absolute right to determine his jurisdiction and to determine all questions which might be raised before him in connection with this matter. I think the court had a right to determine all questions of jurisdiction, precisely as I think this court has the express right to determine any questions before it.

Sir Edward Fry. It has the express power.

Mr. Ralston. Yes; the express right is given under Article XLVIII of this convention. Nevertheless, the court would have the right without it, and I will have to submit yet some observations upon that point.

I stated a moment ago that in our belief, and it is our position, that an arbitral body has a right to determine its competency under the compromis. That power is particularly given this court by article 48.

This part of our contention, and one of the first principles that we would lay down, is that an arbitral court possesses inherent power to pass upon its own jurisdiction, and we believe that the former court, the court of thirty years ago, possessed the power to pass upon its own jurisdiction. Ordinarily, as we know, in the due course of law, appellate courts are provided which have the power of review over the actions of lower courts. In this case (that arising under the convention of 1868) no such power exists—no such power of review exists. It must have rested then with the court itself, for who else was to pass upon the question of jurisdiction? Not the parties, surely. For if the parties themselves were to exercise the power of review of the judgments of arbitral courts upon questions of jurisdiction, it would result simply in setting at naught the arbitration. Not a superior court, for there was none. Not a later court, because, except by a convention of the parties, the later arbitral court can only have the express powers given it under the protocol. If such power be given under the protocol expressly, well and good, but certainly not otherwise; and that power has not been given here.

In discussing, therefore, this particular subject, I say in my brief:^a

We have adverted to the principle that power must rest somewhere to determine the jurisdiction of an arbitral court, and in the case under consideration, this power not having been reserved for any other authority, must, as we believe, be considered to rest in the court itself.

The analogy existing between international and private arbitrations is such that we are justified in believing that if private arbitrators possess the power to determine their own jurisdiction and to interpret the instrument creating them, for stronger reasons must the same power be regarded as resting in international arbitral courts, bodies of infinitely greater dignity and importance, and from whose actions consequences may flow of vastly more importance to the welfare of mankind.

I am reading now from the top of page 23^a of the Statement and Brief on Behalf of the United States. The first reference, as you will note, is to Répertoire Générate Alphabetique du Droit Français:

Tout tribunal a le droit et la devoir de statuer sur sa propre compétence.

“Civil law judges,” as we find, “have many times passed upon the powers of arbitral courts in this respect, and have held: Que les arbitres peuvent connaître de leur compétence bien qu’ils n’y soient pas expressément autorisés par le compromis,” which is precisely our contention. Even though no express authorization be given in the compromis itself, nevertheless the arbitrators must pass upon that question—must have that power.

Ce n’est pas la juger hors des termes du compromis: le droit de juger de leur propre compétence est la conséquence naturelle du caractère de juges dont ils sont investis par les parties.

From this flow the natural consequences expressed under the same title in paragraph 60:

Lorsquet le tribunal se déclare compétent il doit nécessairement statuer sur la cause qui lui est soumise à peine de déni de justice.

The rule so laid down by the civil law authorities is the rule followed also by common law courts. I read for the moment just a single citation from volume 2 of the American and English Encyclopaedia of Law. I have had bound together from that work the single title, “Arbitration and award,” which is at the service of the tribunal. I read from page 795:

Where the parties agree to submit certain legal questions to the decision of an arbitrator, and one of the parties subsequently sued the other, and the subject matter of such suit was the same as that upon which the arbitrator’s decision was rendered, it was held that the award was the law which governed the case.

Again:

An award under a common law arbitration is not required to be made a judgment of any court. It is binding between the parties until set aside—

which could not be true except it be that the arbitral court has power to pass upon its own jurisdiction.

Now the question as to the right of a mixed commission or international board of arbitrators to pass upon its own powers has several times been under active consideration. The earliest example in American practice is discussed in Moore’s International Arbitrations, and relates to the commission formed under Article VII of the treaty between the United States and Great Britain of November 19, 1874. (I am reading still from page 23 of the brief.^b) “In that case the British commissioners attempted by withdrawal to deny the power of the court to determine its own jurisdiction, but the British Government refused to sustain them in their position.”

We have quoted somewhat at length from the opinion of Mr. Gore, one of the American commissioners:

A power to decide whether a claim referred to this board is within its jurisdiction appears to me inherent in its very constitution, and indispensably necessary to the discharge of any of its duties.

To decide on the justice of the claim it is absolutely necessary to decide whether it is a case described in the article. It is the first quality to be sought for in the examination. To say that power is given to decide on the justice of the claim, and according to all the merits of the case, and yet no power to decide or examine if the claim has any justice, any merit even sufficient to be the subject of consideration, is to offer in terms a substance, in truth a phantom.

To my mind there can be no greater absurdity than to conceive that these two nations appointed commissioners with power to examine and decide claims, prescribe the rules by which they were to examine them, authorize them for this purpose to receive books, papers, testimony, examine persons on oath, award sums of money, and solemnly pledge their faith to each other that the award should be final and conclusive both as to the justice of the claim and to the amount of the sum to be paid, and yet give them no power to decide whether there is any claim in question.

It is a contradiction in terms to say that a measure adopted shall terminate all differences, and yet that the very measure presupposes a new negotiation on what are the differences.

The objection that the board is incompetent to decide whether these cases, or any of them, are within the description submitted arrests and stops all proceeding and, in fact, renders the article null and illusive.

To say that the board has authority to decide that a cause is not within its jurisdiction, and yet no authority to decide that a case is within its jurisdiction, appears to be a contradiction too glaring to be persisted in. That the commissioners have a right to decide in favor of one party only—in favor of the party complained against, but not in favor of the complainant—can not be true.

Mr. Pinkney, the other American commissioner, followed, expressing substantially the same view. And our own idea with regard to the position taken by the American commissioners receives more than ample confirmation in the fact that when this question, the very question arising in this case, was referred, as it was, to Lord Chancellor Loughborough, of England, he said:

The doubt respecting the authority of the commissioners to settle their own jurisdiction was absurd; and they must necessarily decide upon a case’s being within or without their competency.

We have, therefore, a position taken by the American commissioners in favor of the tribunal passing finally upon its own jurisdiction, the British representatives withdrawing, the question being referred by them to Lord Loughborough, or by the English State Department to Lord Loughborough, and his decision confirming the position taken by the American commissioners. And to that position we adhere, and we say with Lord Loughborough that a doubt respecting the authority of the commissioners to settle their own jurisdiction would be absurd. They must have that right. And that is the first, the primary question, for discussion when we consider whether the case coming before this tribunal be res judicata or not. Had the former tribunal a right to pass upon its own jurisdiction? Did it pass upon that jurisdiction? According to Lord Loughborough these questions, both questions, must be decided in the affirmative. The former tribunal had the right to pass upon its jurisdiction. It did pass upon it and it passed upon its jurisdiction, sustaining it.

I have referred to one or two other cases, which happen to be American ones, one between the United States and Venezuela, in which questions were raised as to whether the court should or should not take jurisdiction of a given claim, and in the particular instance the court declared themselves competent. If they had declared themselves incompetent surely they would have been within the exercise of their powers. The converse of the question ought to be and must be true that they were within their powers when they declared themselves competent.

I take the liberty of reading, because I think it is important in an historical sense as bearing upon article 48 to which reference has been made, an extract from the Chronique des Faits Internationaux, Revue Générale de Droit International, contained on page 25^a of the brief:

L’arbitrage tend à devenir de plus en plus le droit commun international pour la solution judiciaire des conflits entre les Etats; si cela est, ne faut-il pas, dans le doute, se prononeer pour tout ce qui peut en favoriser l’extension?

Les arbitres doivent done êtré seuls juges de leur compétence. Cette doctrine est conforme à la nature des choses: l’ affirmation de ses pouvoirs est un attribut naturel detoute autorité. La règle que le juge de Faction est aussi le juge de l’exception est universellement admise dans les rapports de droit civil; pourquoi en serait-il différemment dans l’ ordre international?

Telle est au surplus l’opinion de la plupart des écrivains du droit des gens; et l’Institut de droit international, réunion des jurisconsultes les plus considérables du monde entier, a donné à cette thèse l’appui de son autorité; le 28 août 1875, dans sa session de la Haye, il a en effet déclaré, à l’unanimité, que les arbitres doivent prononeer sur les exceptions tirées de l’incompétence du tribunal arbitral. Dans le cas où le doute sur la compétence dépend de l’interpretation d’une clause du compromis, les parties sont censées avoir donné aux arbitres la faculté de trancher la question, sauf clause contraire. (Art 14, sees. 2, 4.)

M. de Martens. I think, Mr. Ralston, all this question was raised by the case of the Alabama arbitrations. That provoked all that the writers upon the subject of jurisdiction have written since the raising of the question in 1873.

Mr. Ralston. Yes. The question arose before the arbitral tribunal as to whether the United States had the right to press the claim for indirect damages, and that particular question was never in form submitted to the Geneva tribunal, but nevertheless the judges came together and they expressed their opinion upon that, not upon the question of jurisdiction exactly, but they said that they did not think they could permit indirect damages to be allowed.

Now, the question is interesting, and I have discussed it somewhat in the brief from this point of view. England, at that time, said in effect, that if that question were pressed she would withdraw or perhaps insist upon a new convention. Certainly she would withdraw. She would not allow that question to be passed upon.

In such reading as I have been able to give to the various writers upon the subject of international law there is but one who has denied the right of England to withdraw from that tribunal under such circumstances had she seen fit to do so. That is our suggestion with regard to the position of Mexico when these different new conventions were signed, or even without the signing of any new convention, that if she had chosen absolutely to withdraw the case she might have done it.

Sir Edward Fry. Withdraw from the case. She could not withdraw the case. What you mean is they might have retired and left the tribunal to go on if they chose.

Mr. Ralston. Yes, sir. And I think that that is the view of practically all the writers with whom I have any acquaintance on international law, with a single exception, and he goes further in the position which I take than I think it is necessary for us to go, for he denies the right of England even to withdraw. For he says that she, having entered into the arbitration—having once entered into it was bound by such interpretation as the tribunal saw fit to give to the convention itself. In other words, that she submitted absolutely to the jurisdiction of the court in the same sense that a private party submits to the jurisdiction of a court and she had not the right to withdraw under any circumstances. It is M. Rolin-Jaequemyns who takes that view, but I think he is a solitary exception upon the point.

All that we insist upon in that regard is what we believe to be the universal language of writers of international law, and that is that there must have been a withdrawal to avoid a decision upon the sub ject of jurisdiction, and there being no withdrawal there was a full and absolute submission to the right of the arbitrators and ultimately the umpire to pass upon this very question of jurisdiction or of compétence

Now, the opinion of M. Calvo upon the right of interpreting the compromis, is quoted (page 25^a of the brief):

Ils ont le droit d’interpréter le compromis, préalable intervenu entre les parties, et par conséquent de prononcer sur leur propre compétence.

But without foregoing the point to which I desire particularly to call the attention of the court, we have next the unanimous declaration of the session of The Hague, of what the gentlemen there assembled conceived to be an absolute principle of international law at that time—in 1875. That is, that the arbitrators themselves should pronounce upon the pleas or the exceptions relating to the incompetency of the arbitral tribunal. I think we may regard that expression of opinion as the immediate forerunner of the expression which is now embodied in The Hague Peace Convention under which we are operating.

And going back even the year previously, we find M. Goldschmidt discussing the matter in 1874 (cited on page 26^a of the brief):

Le danger d’un excès de compétence ne justifie point une immixtion préjudicielle du tribunal officiel. Dans l’arbitrage international il y a cette raison de plus, qu’ une procédure judiciaire préliminaire est impossible.

Without troubling you by reading at length, we next have the authority of M. Pradier-Fodéré He finds that, in principle, arbitrators are judges of their competence; that have the right to interpret the compromis.

And the author continues:

Les arbitres doivent done être considérés comme juges de leur compétence avec le consentement tacite des parties, dans le silence du compromis et en l’absence de toute clause ultérieure; de plus, ce consentement tacite produit sons effet autant que les parties donnent suite à l’arbitrage sans manifester une volonté contraire.

Now, upon that principle we absolutely rely. We have the tacit consent of Mexico that the court should determine its own jurisdiction. We may say that we have the absolute or express consent of Mexico that the jurisdiction should be so determined, because we have her repeated extensions of powers to that tribunal even after it has ceased to have any power in itself. It has then been reinvoked and brought into new being.

I have believed it fair and just to the court that I should cite and I have cited in the course of this brief, the only authorities which might be conceived—the only authorities that I at least have been able to find after a very considerable research—which might be conceived to be in derogation of the powers which we contend belong to all arbitral courts—the court of 1870 by virtue of which we claim and this court—one and the other equally. The only two authorities which I have been able to find which present to the slightest degree any different view are M. Rivier and M. Bonfils. I have cited already a number of authorities to the other side. I am justified in relying upon the unanimous opinion of the jurisconsults who were present here at The Hague in 1875. I am justified, as I shall endeavor to show in regarding the declaration contained in The Hague Convention as a declaration of antecedent law and not the making of any new rule of action whatsoever in this respect.

M. Rivier regards a collection of arbitrators as merely an assemblage of mandataries and not a court—a position which I can hardly conceive capable of favorable analysis.

But, nevertheless, M. Rivier although he takes that position, joined with the other gentlemen named at the foot of page 26^a in the brief in reporting what I have just now read, which I believe to be absolutely law and of great force in this particular case.

M. Rivier says, at least, the committee says, M. Rivier being part of it:

Les exceptions tirées de l’incapacité des arbitres, doivent être opposées avant toute autre. Dans le silence des parties toute contestation ultérieure est excluse, sauf les cas d’incapacité postérieurement survenus. Les arbitres doivent prononcer sur les exceptions tirées de l’incompétence du tribunal arbitral, sauf le recours dont il est question à l’art. 24, 2me. al., et conformément aux dispositions du compromis. Aucune voie de recours ne sera ouverte contre des jugements préliminaires sur la compétence, si ce n’est cumulativement avec le recours contre le jugement arbitral définitif.

No tribunal of review whatsoever was provided for the old commission. He continues, or the committee continues:

Dans le cas où le doute sur la compétence dépend de l’interprétation d’une clause du compromis, les parties sont censées avoir donné aux arbitres la faculté de trancher la question, sauf clause contraire.

exactly agreeing with the declaration at The Hague, in fact forming part of the declaration of 1875.

Now we think, we may, upon that particular proposition, quote M. Rivier against M. Rivier. And when we find M. Rivier in committee in accord with the great weight of authority, we may be justified in believing that that time at least he has been right.

I said there was one other author whose expressions tended to deny the right of the arbitrators to pass upon their own jurisdiction—M. Bonfils.

(La séance est levée à 5 heures et le tribunal s’ajourne au lendemain à 10 heures.)

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