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, 1859, 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 impossibility 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 decred 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. Ávila 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 may be 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 twentyone 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 but 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 obviousthat 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 S. Doc. 28-38