the Government relinquished the management of the Pious Fund of the Californias, and the same was then placed at the disposal of the right reverend bishop of the new diocese is hereby repealed. ART. II. The management and disbursing of the proceeds of this property shall therefore again become the charge of the supreme government, in such way and manner as it shall direct, for the purpose of carrying out the intention of the donor in the civilization and conversion of the savages. Wherefore I order the present to be printed, published, and duly observed. In the further correspondence between Ramirez and the representatives of the Government we find a very full and exact statement of the properties of the. Pious Fund at the time it was taken by Mexico. We learn from this that the various pieces of real estate yielded to the Pious Fund annually as follows: Three-fourths of houses on Vergara street.. Estates of San Augustin de Amoles et al Total. $2,625 12, 825 2,000 12,705 30, 155 The foregoing would represent, capitalized at 6 per cent per annum, $502,583.33. To this Señor Ramirez adds as due from the public treasury (principal and interest) $1,082,078 3 gr., and from private individuals $71,464 1 real, and deducts as due by the fund $32,380 4 r. 3 g., leaving, according to his figures, the value of the Pious Fund at $1,656,125.33 at the time it was taken possession of by the Republic of Mexico. The Mexican Government continued to administer the fund for only a short time, and on October 24, 1842, passed a decree incorporating its property into the treasury, a copy of said decree appearing in full in the transcript in English and Spanish in several places, and reading as follows (Transcript, p. 469): Antonio Lopez de Santa Anna, etc., sabed: Que teniendo en consideracion que el decreto de 8 de Febrero del presente año que dispuso volviera á continuar al cargo del supremo gobierno el cuidado y administracion del fondo piadoso de Californias, como lo habia estado anteriormente, se dirige á que se logren con toda exactitud los benéficos y nacionales objetos que se propuso la fundadora, sin la menor pérdida de los bienes destinados al intento; y considerando asi mismo, que esto solo puede conseguirse capitalizando los propios bienes é imponiéndolos á rédito, bajo las debidas seguridades, para evitar así los gastos de puedan sobrevenir; usando de las facultades que me concede la séptima de las bases acordadas en Tacubaya y sancionadas por la nacion, he tenido á bien decretar lo siguiente: ART. 1°. Las fincas rústicas y urbanas, los créditos activos y demas bienes pertenecientes al fondo piadoso de Californias, quedan incorporados al erario nacional. 2o. Se procederá por el ministerio de hacienda á la venta de las fincas y demas bienes pertencientes al fondo piadoso de Californias, por el capital que representen al 6 por 100 de sus productos anuales, y la hacienda pública reconocerá al rédito del mismo 6 por 100 el total producido de estas enagenaciones. 3o. La renta del tabaco queda hipotecada especialmente al pago de los rèditos correspondientes al capital del referido fondo de Californias, y la direccion del ramo entregarà las cantidades necesarias para cumplir los objetos á que está destinado el mismo fondo, sin deduccior. alguna por gastos de administracion, ni otro alguno. Por tanto, etc. [Translation.] Antonio Lopez de Santa Anna, etc.: Whereas the decree of February 8 of the present year, directing that the administration and care of the Pious Fund of the Californias should redevolve on and continue in the charge of the Government, as had previously been the case, was intended S. Doc. 28-14 to fulfill most faithfully the beneficent and national objects designed by the foundress without the slightest diminution of the properties destined to the end; and whereas the result can only be attained by capitalizing the funds and placing them at interest on proper securities, so as to avoid the expenses of administration and the like, which may occur, in virtue of the power conferred on me by the seventh article of the Bases of Tacubaya, and sanctioned by the nation, I have determined to decree as follows: 1. The real estate, urban and rural, the debits and credits, and all other property belonging to the Pious Fund of the Californias are incorporated into the national treasury. 2. The minister of the treasury will proceed to sell the real estate and other property belonging to the Pious Fund of the Californias for- the capital represented by their annual product at 6 per cent per annum. And the public treasury will acknowledge an indebtedness of 6 per cent per annum on the total proceeds of the sales. 3. The revenue from tobacco is specially pledged for the payment of the income corresponding to the capital of the said fund of the Californias, and department in charge thereof will pay over the sums necessary to carry on the objects to which said fund is destined without any deduction for costs, whether of administration or otherwise. Wherefore, etc. Orders upon the revenue for tobacco were given from time to time for the benefit of the Bishop of California. We read a copy of one of them for $8,000, on page 149 of the Transcript, described as given "on account of the income belonging to the Pious Fund of California, the properties of which were incorporated into the national treasury.' We are not greatly concerned in the disposition which the Government made of the various properties taken by it, their capitalized value having been fully shown, as already appears by the statement of Sr. Ramirez, to which statement there was no demur on the part of the Mexican Government, in fact the inventory having been made upon its demand (Transcript, p. 505). We may note, however, that in two places in the record some references are made to the sale or purchase of the several properties. In the extract from the work of M. Duflot de Mafras, entitled "Exploration du Territoire de l'Oregon,' at page 216, it is stated that President Santa Anna sold the entire fund to the houses of Baraio and to Rubio Brothers, and in a note on page 476 reference is made to the treasury report of December 31, 1843, acknowledging in favor of the Pious Fund of the Californias the receipt of $323,274.51, and from a like report, dated June 20, 1844, the further sum of $124,726.01 is acknowledged. The last legislation had by Mexico with reference to the Pious Fund appears to have been a decree of April 3, 1845, which is to be found in the record on page 581, and which, in English and Spanish, reads as follows: ABRIL 3 DE 1845.-Ley: Sobre devolucion de creditos y bienes del fondo piadoso de Californias. El Excmo. Sr. presidente interino se ha servido dirigirme el decreto que sigue: "José Joaquin de Herrera, general de division y presidente interino de la República mexicana, á los habitantes de ella, sabed: "Que el congreso general ha decretado y el ejecutivo sancionado, lo siguiente: "Los créditos y los demas bienes del fondo piadoso de Californias que existan invendidos, se devolverán inmediatamente al reverendo obispo de aquella mitra y sus sucesores, para los objetos de que habla el art. 6° de ley de 19 de Setiembre de 1836, sin perjuicio de lo que el congreso resuelva acerca de los bienes que están enajenados.' APRIL 3, 1845.-Law: Concerning the restitution of debts and property of the Pious Fund of the Californias. The most excellent president ad interim has been pleased to forward to me the following decree: "José Joaquin de Herrera, general of division and president ad interim of the Mexcan Republic, to the inhabitants thereof: "Know ye that the general Congress has decreed and the executive sanctioned the following: "The debts and other properties of the Pious Fund of the Californias which are now unsold shall be immediately returned to the reverend bishop of that see and his successors for the purpose mentioned in article 6 of the law of September 19, 1836, without prejudice to what Congress may resolve in regard to the property that has been alienated.'' We are unable to learn that any property whatsoever was turned over to the bishops or other action taken because of or consequent upon this law. Something should be added at this time with relation to the estate of Ciénaga del Pastor, referred to by Sr. Ramirez in his report to the Mexican Government. At the time the report was made it was embargoed or attached for a heavy debt, but notwithstanding such embargo, as we expect the evidence will show, it was sold by the Mexican Government, and so far as the interest of the Pious Fund was concerned it produced $213,750, and, aggregating with this the original claim as finally adjudicated by the Mixed Commission, the sums claimed by the memorial in this case because of the larger amount than formerly allowed, which was received from the property donated by Doña Josefa de Arguelles, erroneous deductions for a so-called debt, additional loans not credited, and personal property sold at the same time with Ciénaga del Pastor, we find as the sum total of the Pious Fund the sum of $1,853,361.57. It is to be noted that a difficulty arose between the Spanish and the Mexican Governments similar in nature to that now presented; such difficulty, however, arising out of the fact that under the terms of the settlement of the estate of Señora Arguelles the Philippine and the California missions were entitled to equal interests in three-fourths thereof. Spain, as the representative of the interests of the Philippine church, demanded that there be paid to her the sums properly belonging to the Philippine portion of the fund. We ask that the same treatment as to the California branch of the claim be accorded us, regarding such settlement equally applicable in the one case as in the other. ARGUMENT. The United States confidently rely upon the findings of the former Mixed Commission as settling beyond the need of argument upon other points the issues now presented, and offer the considerations following in support of the position that THE AMOUNT OF THE PROPER JUDGMENT IN THIS CASE IS FIXED BY THE TERMS OF THE FORMER AWARD. Let us first consider, therefore, as this court is authorized to do by the terms of the protocol, the question as to whether the decision of the former Mixed Commission may be regarded as constituting as to any of the facts passed upon by it what is known to the common law as res judicata, or to the civil law as chose jugée, and if so, what facts are to be treated as settled thereby and what consequences flow from such settlement as affecting the subject-matter submitted to the present tribunal. According to the first edition of the American and English Encyclopedia of Law, Title "Res Judicata," volume 21, page 128 When a matter has once 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. To somewhat similar effect article 1351 of the French Code Civil says: 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 fondée sur la même cause, que la demande soit entre les mêmes parties, et formée par elles et contre elles en la même qualité. It will thus be seen that the common law and the civil law view the subject-matter in similar lights. We may fairly deduce from the citations above given that the first question to be considered is whether the former Mixed Commission was a court competent to render the decision at which it arrived, and to determine this we must reach a just conclusion as to whether it was authorized to pass upon, and did adjudicate, its own jurisdiction. If we give an affirmative answer to this proposition, then as a matter of interest, but necessarily of lesser importance in view of the conclusion reached, we might fairly consider whether the judgment of the tribunal as to its own competency was correct as a matter of law. This branch of the discussion is, however, fully covered by the Messrs. Doyle in their brief to be filed herein. When a tribunal exists there must of necessity be authority in some person or body to judge whether the questions raised before it properly come within the purview of the powers with which it is invested. Sometimes the reviewing authority consists of an appellate or other tribunal superior by virtue of the general theory of the law controlling judicatory bodies. Sometimes the review is expressly provided for by the instrument constituting the court, and in cases such as that we are now examining it is always proper for the high contracting parties to retain a power of review, acceptance, or rejection of the conclusions reached by the commission, such power being reserved in the instrument creating it. Still another course is permissible, according to many authorities, when it is found that a court of arbitration is likely to exceed its just powers, and this is to withdraw the matters concerning which the exercise of excess of power is to be feared from the examination of the commission, and thereafter to decline to recognize judgments which may be reached. This course appears to be recognized by many writers on the subject of international law as proper, for they find, as we shall hereafter see, that a judgment rendered when one party or the other has not been heard or has withdrawn is a nullity. Withdrawal from the Geneva Tribunal was threatened by England when the question of consequential or indirect damages was raised, and her right so to do has been questioned by scarcely any writer, if we may except M. Rolin-Jaequemyns, who, in an article published in volume 4, Revue de Droit International, denies that England was at liberty to take this course, the contention raised by her coming fairly within the powers of the arbitrators to decide as being one relating to their jurisdiction. The treaty between the United States and Mexico did not provide for any reviewing power, did not reserve a right of ultimate rejection or dissent, and Mexico did not decline or refuse at any stage to proceed with the submission to the former Mixed Commission of the Pious Fund Claim. None of the things happened, therefore, which might have had a tendency to invalidate the former award, or to diminish its effect as res judicata. Furthermore, while Mexico formally filed a motion to dismiss, that country, the question yet remaining undetermined, proceeded to submit a great variety of testimony touching the contentions directly raised by the memorial and to argue as to its effect. This very course showed that Mexico recognized to the fullest the authority of the commission to render a final judgment upon the merits of the dispute, her conduct amounting to a practical waiver of any objection to the jurisdiction. We say this not unmindful of the fact that particularly in the argument on revision an attempt was made to renew her former objections, to enlarge their scope and to reinforce the motion to dismiss by additional arguments, but such motion could not revivify and strengthen a position finally and definitely abandoned, as her former contention had been, by an entry upon a discussion of the merits of the controversy. We shall find occasion later to enlarge upon this view of the question. But if Mexico had not confessed jurisdiction, as she did by her actions more than twenty-five years ago, there would then have been left to us to consider as of the highest moment the questions heretofore raised. As it is, we would not be justified in passing them by without careful examination. HAS AN ARBITRAL COURT INHERENT POWER TO PASS UPON ITS OWN JURISDICTION? 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. We read in Répertoire Général Alphabétique du Droit Français, volume 12, title "Compétence Civile et Commerciale,” paragraph 44, as follows: Tout tribunal a le droit et la devoir de statuer sur sa propre compétence. Civil law judges have many times passed upon the powers of arbitral courts in this respect, and have held (Répertoire Général de Jurisprudence, Volume IV, title "Arbitrage," sec. 572) Que les arbitres peuvent connaître de leur compétence bien qu'ils n'y soient pas expressément autorisés par le compromis, ce n'est pas la juger hors des termes du |