ment of Mexico November 29, 1842, for $213,750, and the personal property thereof for $3,000. (Replication, p. 47.)

As hereinabove stated, we seek to charge Mexico with these two sums in the event that the whole case is not deemed res judicata.

It will be seen from the foregoing that the properties of the Pious Fund devoted by the Marquis de Villapuente and the Marquesa de Rada were never lost to it. The only damage which it sustained was to labor under an attachment of $158,175 and interest. Whether that attachment was paid or otherwise discharged does not appear by the record. It is respectfully submitted that the award of this court should be for the amount asked for in the memorial of the United States, based upon the idea of the principle of res judicata controls here, and failing that, that the award should be for the United States, based upon the demand stated in its memorial as the true amount due in the event that the principle of res judicata is held to not control the decision of this

court.

THE HAGUE, September 25, 1902.

GARRET W. McENERNEY,

Of Counsel for the United States.

[Submitted by Messrs. Doyle and Doyle.]

OBSERVATIONS ON THE ANSWER OF MEXICO TO THE MEMORIAL OF THE UNITED STATES.

This document has rather the character of an argument than a pleading in the modern sense. It does not, so far as we can discover, either controvert or confess and avoid a single allegation of fact in the memorial, but denies the effect of the former decision as res judicata, and seeks to deduce from the evidence given on the former trial a different verdict from what the tribunal then arrived at, as if this were a court of appeal competent to review that former decision, as well on the facts as on the questions of law involved. Such, however, is not the office of this court. The only question it has to decide with reference to the tribunal of 1868 is sharply defined by the protocol under which it is acting, and reads: "Is said claim (the claim on behalf of the Catholic Church of Upper California), as a consequence of the former decision, within the governing principle of res judicata?" What is the governing principle of res judicata? We think it may be defined as a legal principle declaring that "the truth of the disputed right having once been inquired into and decided by the final judgment of a competent legal tribunal, having jurisdiction of the parties and the controversy, can not thereafter be called in question by either of them or by any party claiming or deriving title under either of them.

In his answer to the memorial the pleader seeks, in the application of the rule "res judicata pio veritate accipitur," to distinguish between decisions of courts of justice organized by authority of the sovereign. for the administration of justice, which he terms "decisions pronounced by judges invested with lawful authority to decide the case, its reasons and consequences," and these "pronounced by arbitrators, who have no actual jurisdiction nor any greater powers than what are granted to them by the terms of the submission," and he claims, with respect to the latter, a most strict interpretation of everything relating to an action or defense founded on res judicata.

A general discussion of the differences in this respect between the consequences of an arbitral decision and those of the judgment of a court of law would be inappropriate here; for while there are many different varieties of arbitration, from the wager, left to the offhand decision of some third person, up to the international tribunal, which, under the most solemn responsibilities, decides between sovereigns controversies of the greatest magnitude and highest moment (such as the two arbitrations between the United States and Great Britain under the treaty of Washington), the court is not here required to lay down any general rule for such cases, nor for any particular class of them. We are only concerned here with the value, as res judicata, of a decision pronounced by the international tribunal created by the

convention between the United States and Mexico of July 4, 1868. For this we look naturally, first, to the terms of the convention which called the tribunal into existence and defined its powers. In it we find that the commissioners were required by Article I, before proceeding to business, to make and subscribe a solemn declaration that they will impartially and carefully examine and decide to the best of their judgment and according to public law, justice, and equity, without fear, favor, or affection to their own country, upon all such claims above specified, as shall be laid before them," etc. The umpire also is to "make and subscribe a solemn declaration in form similar” to the above.

The commissioners were provided with two secretaries and empowered to hear testimony and decide not only each one of the cases presented to them, but also, by Article III, the question of their own jurisdiction and authority, if questioned. "It shall be competent," says the convention, Article III, "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," and by Article II "the parties' 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. The Spanish is, if possible, even stronger; they promise

Considerar la decision de los commisionados, de acuerdo, ó del arbitro segun fuese el caso, como absolutamente final y definitiva, respecto de cada una de las reclamaciones falladas por los commissionados, ó del árbitro, respectivamente, y á dar entero cumplimiento á tales decisiones sin objecion, evasion ni delacion ninguna.

These are unusually strong expressions on the subject of the effect of the awards, as will be seen by comparison with other conventions of like nature.

We are not then treating of any informal or extemporized arbitration, but of the determination of a tribunal constituted in all respects on the lines of a high court of justice, composed, too, of men of exalted character, and distinguished as well for moral and intellectual qualities as for learning. True, it derived its authority from the consent of the two Governments; but, according to the American idea, on which both the litigant States are founded, the consent of the governed is the foundation of all the just powers of government. The tribunal created by the convention of 1868 may be called, if you please, a commission of arbitration, but it was in fact an international court of the highest rank and dignity, just such a court as the present one. lt dealt with over eight hundred cases, all of them of magnitude and importance, rendering judgments for and against two sovereign States. To ascribe to the decisions of such a tribunal less authority or less effect than to those of any ordinary court of justice is to dwarf and belittle the whole subject. If its adjudications did not possess all the authority of res judicata, neither will those of the present court, for it also derives its jurisdiction only from consent of parties, though, unlike the other, it is constituted, so far as its personnel is concerned, ad hoc only and has jurisdiction of but a single case. Now, we ask with all contidence, is it possible that, should the decision in the present case be against the United States, the relators will be at liberty again next

year, or a year thereafter, to put forward another claim for subsequent interest, claiming that the whole question is still open to reexamination and that the decision your honors make is that of mere arbitrators and does not constitute a res judicata? It is incredible that this court will, in advance, set so light a value on its own judgment, and it is certain that that of the court whose judgment is under consideration has all the weight and force that one to be pronounced here will have. The pleader who drew the answer of Mexico, or at least this portion of it, lost sight, too, of the instruction to be derived from the expression of his illustrious client, the Mexican foreign secretary, who, in his letter to Mr. Powell Clayton of November 28, 1900 (Dip. Cor., p. 35 and seq.), said, with characteristic directness (p. 39):

Que es un principio admitido en todas las legislaciones, y perteneciente al derecho Romano, el de res judicata pro veritate accipitur, no habrá, de seguro, quien lo niegue. Tampoco se disputa que un tribunal o juez, establecido por Arbitraje internacional, comunica a sus redoluciones pronunciados dentro de los limites de su jurisdiccion (como la expresa la cita hecha por el Señor McCreery) la autoridad de cosa juzada; pero que deba darse, en la práctica, la misma fuerza que á lo directamente resulto en la sentencia para terminar el litigio, á las consideraciones ó premisas, no enumeradas expresamente como puntos decidos por el juez, sino simplemente referidos por él en los fundamentos de su fallo, ó supuestos como antecedentes necesarios, por el interseado que interpreta la sentencia, eso es cosa muy diferente y sobre la cual no puede haber el mismo acuerdo.

We quote this passage in the language of its author because, in our opinion, the English version, though generally faithful and idiomatic, does not at this point fully convey the exact sense of the original. The word "legislaciones" in the first sentence is not, we think, properly rendered by legislation, for the author is not speaking of legislation, but of jurisprudence; it rather means systems of law; and the words "las consideraciones ó premisas, no enumeradas, expresamente como puentos decidados por el juez, sino simplemente referidos por él, en los fundamentos de su fallo, ó supuestos como antecedentes necessarios, por el enteresado que interpreta la sentencia" are not adequately expressed by the English version on page 31 of the diplomatic correspondence. We retranslate the paragraph here, from which the precise extent and materiality of this criticism will appear. That "res judicata pro veritate accipitur," a principle of the Roman law, is admitted in every system of jurisprudence, is undeniable; nor is it denied that a tribunal established for international arbitration gives to its judgments pronounced within the limits of its jurisdiction (in the language of the authority cited by Mr. McCreery) the force of res judicata; but that in practice the same authority attributed to the ju lgment which terminated the litigation is to be given to considerations or facts leading up to it, not expressly mentioned by the judge as decided, but only referred to by him in reasoning out his determination, or assumed as necessary antecedents to it, by the interested party, invoking it, is quite a different thing, and one on which the same consensus of opinion can not be expected. I leave to the judgment of any lawyer who is a good Spanish scholar whether this is not the true sense of the passage in question. In it the words "no enumeradas expresamente como puntos decididos por el juez" (not expressly mentioned by the judge, as decided) are material and, indeed, controlling. Now, it is certain that the tribunal of 1868, in order to decide the case before it, had necessarily to determine the capital of the fund, the rate of interest it bore, and the length of time elapsed; S. Doc. 28-22

for the demand was distinctly for interest, as such, and the award followed it; hence it was impossible to fix on the amount due without a computation of which those three elements formed the basis. And we are not left in any uncertainty as to what the court decided with respect to them. We have but to read page 526 of the Transcript, where, in the opinion of Mr. Commissioner Wadsworth (in which the umpire concurs, p. 609), we find that he recognized the capital of the Pious Fund to be $1,436,033, the rate of interest on it 6 per cent per annum, and the time elapsed twenty-one years. These facts were, therefore, necessary parts of the decision, and are expressly mentioned by the court as such. The case therefore comes plainly within even the lines laid down by the honorable Mexican secretary himself.

But, says the pleader, who evidently sees the weakness of his first position, these constituent items, amount of capital, rate of interest, and length of time, are not contained in what is termed the decisory part of the judgment. So that how clear soever the ascertainment and decision of such constituent facts, or however plain the announcement of such decision by the court, unless it be expressed in a particular portion of the decision, it is of no effect. The origin of this strange idea is, we believe, to be found in the enactment of the French constituent assembly of 4th germinal, 1790, cited on page 6 of our points heretofore submitted; but what authority has enacted, or could enact, forms to be observed by international tribunals? They make their own rules and devise their own forms of pleading and procedure, controlled only by the conventions which give them birth.

A witty Frenchman said that while it is true that divine Providence governs this world, it is also a fact that it ordinarily makes use of France for the purpose. Even such a wag as he would scarcely claim

for French enactments the control of international tribunals. The question for us, therefore, is, what did the tribunal of 1868 decide in this respect? not in what paragraph or portion of its judgment is it found. Are we seriously asked to believe that the decision by such a tribunal on controverted facts shall depend for its validity on whether it is found on page 7 or page 8 of the opinion of the court or if it is not stated in the precise form prescribed by the French constituent assembly for the courts of that country when remodeling its judicial system and practice a century ago? We can not think so, and find no ground for such extravagant respect for mere forms, which are neither spoken of nor referred to in the mutual covenants of the two nations, which agree to consider the decision of the commissioners conjointly, or of the umpire, as the case may be, as absolutely final and conclusive and to give full effect to such decisions without evasion or delay. How can such effect be given if, on a supplemental bill for subsequent installments of the same interest, on the same capital, the losing party is at liberty to reopen and retry the whole question of liability already tried and determined, and this on the very same evidence? One of the logical effects of a judgment by a competent court as a controverted case is to establish the right on the basis of res judicata, the most solid known to the law. To refuse to give this effect to a judg ment is to deny it more than half its value in violation of the convention.

A suggestion is made on page 7 of Mexico's answer that the United States has expressly repudiated the application of the doctrine of res judicata to the awards of international tribunals, referring to a cor