Critical comparison of the answer of Mexico with the language of Savigny, which it purports to sum up, will show that Buchka exactly agreed with Savigny as to the present law (a fact overlooked by Mr. Mariscal), and in so far as he undertook to state the Roman law otherwise, he had, in Savigny's opinion, reached a wrong conclusion (à tort); this commentary also being omitted.

There are contained in the answer of Mexico three citations from Griolet, who has been correctly quoted as stating in opposition to the opinion of Savigny that neither the subjective or the objective reasons can share in the authority of the judgment, and that the authority of res judicata does not embrace the reasons (motifs). His positions, nevertheless, are not altogether clear, and it is not too much to say they are contradictory. For instance, after referring to the distinctions made by Savigny between subjective and objective "motifs," he says (pp. 8 and 9):

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

Furthermore, in the application of the rules govering the subject, he furnishes us with references directly in point for the support of the contentions of the United States. To make clear his understanding of what is said to be his rule, and to furnish applications in point for our present consideration, we copy the following extracts:

1o. Condamnation du défendeur.-Il est facile de reconnaître quels sont les droits sur lesquels la condamnation suppose une déclaration du juge le plus souvent affirmative, quelquefois négative. Ce sont tous les droits dont l'existence, dans le premier cas, ou l'inexistence, dans le second cas, était nécessaire pour justifier l'ordre sanctionnateur. (p. 125.)

Again, from page 104, we quote two paragraphs:

Un rapport de droit peut avoir de nombreuses conséquences et être l'objet de sanctions diverses. Bien qu'on n'ait invoqué qu'une seule de ces conséquences ou qu'on n'ait poursuivi qu'une seule de ces sanctions, la déclaration que le juge a rendue s'attache au droit lui-même, en sorte qu'elle serait opposable si on invoquait plus tard une autre conséquence du droit, ou si on poursuivait quelque autre des sanctions que ce droit peut recevoir. Cette conclusion est conforme aux décisions de la jurisprudence et des auteurs.

N'est-elle pourtant pas contraire à la théorie qui exige l'identité de l'objet de la demande?

Sans abandonner cette théorie, on reconnaît que le juge saisi de la revendication à titre héréditaire prononce sur le droit héréditaire, que le juge qui admet un enfant à la succession de son père le déclare enfant légitime (cas. 25 pluv., an 11, D. ch. j., 163), que le juge qui ne condamne qu'au paiement du quart d'une créance, des intérêts du capital, affirme, dans le premier cas, toute la créance, et, dans le second, la créance du capital (req. 20 décembre 1830, D. ch j., 112; Toulouse, 24 décembre 1840, ibid., 113).

We add from page 105:

Il est donc bien admis dans notre droit que la déclaration du jugement porte sur le droit contesté tout entier, et non pas seulement sur le droit contesté relativement à la condamnation qui était demandée.

We add from page 131:

Quelquefois l'existence de plusieurs droits est nécessaire pour justifier la condamnation poursuivie par le demandeur. Quand cette condamnation est prononcée elle implique évidemment l'existence de tous ces droits. Mais on voit non moins aisément que l'absolution peut ne pas avoir toujours le même sens. Il suffit en effet, pour qu'elle soit justifiée, qu'un seul des droits nécessaires ait fait défaut. Ainsi une demande d'intérêts suppose qu'un capital est dû et que ce capital produit des intérêts qui sont encore dus.

We add in a note some references to recent Netherland decisions and authorities sustaining our propositions. (")

We have heretofore referred to the elements entering into the judgment for which we claim the authority of res judicata. To deny to these elements, so bound up in the amount for which judgment was finally awarded, the force of res judicata, and to accept the position taken by the Mexican Government, would be to take the position that it is right to regard the quotient as res judicata, but we may not analyze that quotient into its two elements of multiplier and multiplicand and treat the judgment as determining the amount of the multiplicand.

We might cheerfully admit that in the subjective sense, so well pointed out by Savigny, the "motifs" are not to be regarded as entering into the thing adjudged, and, applying this doctrine, say simply

(a) In support of the contentions made by us upon this point, we may cite Deurwaarder's Maanblad, Part 16, March 3, 1900, as showing that in the case of a suit for rent the existence of the lease may be proved by reference to a former judgment in which the tenant was condemned to pay for a prior term.

Again, as appears by reference to Paleis van Justitie for the year 1901, page 92, a decision of the Leeuwarden court of justice of May 31, 1900, shows that there must be considered as included within the scope of a judgment the questions of law which the judge had to decide in order to arrive at the final decision.

Again in the Weekblad van het Recht of March 7, 1900, being numbered 7397, we find a decision of the Netherlands High Court of Justice, in which it was advised by the Procureur General that every decision of the judge which by reason of the contentions of the parties he might and has given with regard to their rights, is included in the subject-matter of his judgment, no matter in what particular part thereof the decision might be found. The finding of the court in this case was in the line of the above contentions, holding that the subject-matter of the judgment must not be understood to relate exclusively to the actual dictum at its end, but includes the decisions given by the judge with regard to the points of difference between the parties as to their rights, provided the requirements of the second clause of article 1954 are met. (This article requires that the claim to constitute res judicata be based upon the same cause and made by and against the same parties in the same capacity.) In the case at bar it was held that although two suits were brought between the same parties, having relation to the same subject-matter, in reality the suit prosecuted is one and the same, depending upon the same thing-noncompliance with the contractand therefore the former judgment was received as conclusive evidence as to facts affecting such contract.

In the observations with regard to the articles of the Civil Code, by C. W. Opzoomer, third edition, pages 279 to 281, is to be found a discussion of the subject-matter under consideration. That author considers that

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

Further discussing, he says:

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

The views of Dr. Opzoomer are thoroughly indorsed and followed in Netherland Civil Law, part 3, edition of 1874, pages 234 et seq. Without quoting therefrom at length, the writer says:

"His (Dr. Opzoomer's) views are, in my opinion, the correct ones (p. 242). A judgment (p. 256) deciding the existence or nonexistence of a claim for an interestbearing debt may be relied upon to maintain or contest a claim with relation to unpaid interest, and for or against a claim for adjustment of a debt one may appeal to a judgment in which a decision has been given with regard to a claim for interest based on the existence or nonexistence of the debt."

that the reasons influencing the mind of the mixed commission to conclude that $43,080.79 was the multiplicand, rather than some other sum, and to conclude further that the Roman Catholic bishops of California were the proper plaintiffs, and had a right to demand the sum above indicated yearly, should be rejected as not entering into res judicata, leaving us simply to claim for the substantial elements of the judgment.

If we are not right in this contention, and the beneficiary, the number of installments for which judgment has been rendered, and the yearly amount of each installment do not form part of the decisory part of the award, and the judgment may not be inspected for the purpose of determining these various elements, so as to inform us as to what yearly claims would be satisfied by payment, then might the United States hereafter declare that, although a judgment had been obtained against Mexico for a gross sum, such judgment could not constitute a bar to another action for one of the factors of the old judgment, such as a particular yearly installment. Of course, such a suggestion would be regarded as absurd.

We have up to this time argumentatively assumed the possibility that the determination of the amount due per year and the number of years for which the mixed commission made their calculations might be classed among the "motifs" of the award. In point of fact, we submit that these elements are exactly embraced within its decisory part, the "motifs" being merely the reasoning conducive to the result. Referring to the award itself (Transcript, p. 609), we read as follows:

The annual amount of interest, therefore, which should fall to the share of the Roman Catholic Church of Upper California is $43,080.79, and the aggregate sum for twenty-one years will be $904,700.79.

This is the finding of the umpire, and after some further remarks he adds:

The umpire consequently awards that there be paid by the Mexican Government on account of the above-mentioned claim the sum of nine hundred and four thousand, seven hundred Mexican gold dollars and seventy-nine cents ($904,700.79), with interest.

The two clauses constitute at least part of the decisory portion or dispositif of the award, and so treating them, the award as res judicata upon the question of annual payments is free from even the doubt sought to be raised by Mexico on the supposed authority of Laurent, as first suggested by Sr. Mariscal and afterwards abandoned, and lastly upon the authority of Griolet, above analyzed and showed to be lacking in so far as it was used by the minister of foreign affairs to sustain his position.

Sr. Mariscal, further continuing his discussion of the subject of res judicata, refers to a letter from the American Secretary of State to the Spanish minister, Sr. Muruaga, to the effect that the findings of international commissions

Are not to be regarded *

decided.

*

*

* as authoritative, except in the particular case

* * They do not in any way bind the Government of the United States, except in those cases in which they were rendered.

In a footnote to the appendix of this replication we have added at the appropriate place the full paragraph contained in the letter of Mr. Bayard, Secretary of State, quoted partially and imperfectly by Sr. Mariscal.

In making the reference last indicated, Sr. Mariscal has, we respect

fully submit, committed the same error pointed out on page 55a of our first brief, under the head of "The doctrine of overruled cases." He has once more confused stare decisis with res judicata. In the reference now made by him, Mr. Bayard, Secretary of State, refused to recognize the authority of a decision had between certain parties with relation to a given subject-matter, when it was invoked to control hist action in a controversy having relation to an issue between other parties with a somewhat different subject-matter. In other words, of course, he refused to recognize the doctrine, not of res judicata, but of stare decisis. No reference other than this having been cited on behalf of the Mexican Government, believed by it to show that the doctrine of res judicata does not apply to arbitral tribunals, we may conclude that none exists.

We are fortunately able, in opposition to the suggestion of Sr. Mariscal that the decisions of arbitral tribunals have not the force of res judicata, to quote that gentleman himself, for in addressing Mr. Clayton, under date of November 28, 1900 (Diplomatic Correspondence, p. 31), he writes as follows:

That res judicata pro veritate accipitur is a principle admitted in all legislation, and belonging to the Roman law, certainly no one will deny. Nor is it denied that a tribunal or judge established by international arbitration gives to its decisions "pronounced within the limits of its jurisdiction” (in the language of the authority cited by Mr. McCreery) the force of res judicata; but to give in practice the same force as that directly expressed in the decision to close the litigation, to the considerations or premises not precisely expressed as points decided by the judge, but simply referred to by him in the bases of his decision, or assumed as antecedents necessary for the party in interest who interprets the decision, is a very different thing and can not be considered in the same way.

Nowhere in the course of the present answer has Sr. Mariscal distinctly denied the jurisdiction of the mixed commission. Not having denied such jurisdiction, according to the citations given, its decisions have the force of res judicata."

That the Mexican commissioner (member of the mixed commission of 1868) believed the award would constitute res judicata is shown on pages 44 and 45' of brief of agent and counsel of the United States, and that Mexico's former counsel agreed to the proposition is fully developed on page 14 of the brief of the Messrs. Doyle.

It is a matter of pleasure to be able to add to this replication a reference to the Civil Law of the Netherlands, edition of 1874, Part III, page 242, to the effect that as to res judicata, "Even the judgments of arbitrations are in precisely the same condition as judicial decisions."

It may not be inappropriate at this moment to congratulate the present tribunal upon the fact that the first controversy submitted to arbitration under the provisions of The Hague Convention will enable this court, if in its judgment it be right, to declare once and for all time that to the findings of arbitral tribunals there attaches at least the same sanctity and conclusiveness as pertains to the judgments of the least important courts, passing upon the most trifling disputes likely to arise between man and man.

If the Permanent Court of Arbitration can give no greater degree of permanence and finality to its utterances than may be inferred from the present answer of Mexico through Sr. Mariscal, then indeed may the outlook for solemn and conclusive arbitration be considered as gloomy and discouraging. The United States adhere to a view which a Page 237, this volume.

b Pages 229, 230, this volume. c Page 271, this volume.

we believe will tell in the future in favor of the peace and well-being of the world, in that it will tend, if maintained, to insure absolutely the peaceful settlement of difficulties.

Under a further subheading of the present paragraph, it is contended by Sr. Mariscal that any right the claimants may have had in the beginning of the year 1848 was completely extinguished by the treaty of peace and friendship which was consummated February 2 of that year between Mexico and the United States; and this for the reason that Article XIV of that treaty declares that all debts and claims not decided up to that time, and which the citizens of the lastnamed country should hold against the former, would be considered ended and canceled forever.

The particular reason for the insertion of this article is found in the fact that some years previously, and before the breaking out of the war between the two countries, there had been a commission in session for the settlement of claims between the citizens of one country and the government of the other, respectively; that many of the claims had remained legally incomplete and unsettled, and that it was the design of both Governments to put an end to the old litigations. It could not have the slightest relation to the claims of those who became citizens from or at any time after the date of the treaty. The argument upon this point now being urged by Sr. Mariscal was presented by the Mexican Government in the litigation before the former mixed commission, and was passed upon unfavorably to the Mexican contentions, as certainly it could not have been the intention of Mexico, by a treaty had between it and the United States, to cancel claims against itself of those who up to the date of its signing had been its own citizens.

The further suggestion is made by Mexico that the claim is extinguished because, being in the nature of an annuity of one sort or another, it should be considered real property, subject to the legislation of the country in which it was held, and barred by the running of its statute of limitations.

It has never yet been held in international tribunals that a claim brought before them could be defeated-by reason of the existence of a statute of this sort, such statute having no authority whatsoever over international courts. The purpose and effect of statutes of this kind, as is well known, is not to extinguish the right, but to bar the remedy. Their operation, therefore, may be waived by the defendants, and the very agreement to submit a claim to arbitration is a waiver.

By the terms of the protocol it is agreed between the two countries that reference be made specifically to determine whether the claim is within the governing principle of res judicata, and if not "whether the same be just," and the award if against the Republic of Mexico must be for "such amount as under the contentions and evidence may be just." Even without these specific clauses, which of themselves effectually prevent any appeal to a statute of limitations and offer a consideration absolutely determinative of the plea now presented by Mexico, international tribunals are controlled in their operations by broad principles of right and justice, and this tribunal can not, of course, recognize that injustice becomes justice by the simple efflux of time without culpable laches on the part of the creditor or by the act of debtor declaring the claim barred.

After the reasons above given, we may dismiss without further diş