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BEFORE THE PERMANENT COURT OF ARBITRATION UNDER THE
HAGUE CONVENTION OF 1899.
THE CASE OF THE PIOUS FUND OF THE CALIFORNIAS.
STATEMENT AND BRIEF ON BEHALF OF THE UNITED STATES.
JACKSON H. RALSTON,
Agent of the United States and of Counsel.
WILLIAM L. PENFIELD,
Solicitor of the Department of State.
STATEMENT AND BRIEF ON BEHALF OF THE UNITED STATES.
The present case comes before this honorable tribunal through joint reference to it by the United States and Mexico under the terms of what is known as the The Hague Convention, except in so far as the provisions of such convention may have been departed from by the express language of the protocol.
The matter at issue has relation to what is known as the Pious Fund of the Californias, the history of which, as well as the history of all prior litigation relating thereto, will hereafter be related. For the moment it is sufficient to say that some, and, as the United States contends, practically all, of the matters at issue were formerly passed upon by what was known as the American and Mexican Mixed Claims Commission, established under the terms of a convention entered into between the United States and Mexico in 1868, and the final ratifications of which were exchanged at Washington February 1, 1869, and that by the terms of the protocol under which this tribunal acts it has power to decide
(1) If said claim, as a consequence of the former decision, is within the governing principle of res judicata; and
(2) If not, whether the same be just;
And to render such judgment and reward as may be meet and proper under all the circumstances of the case.
With these preliminary remarks, we may proceed to the consideration of the case from the point of view of the complaining Government.
JUDICIAL HISTORY OF THE PIOUS FUND CONTROVERSY BETWEEN THE TWO NATIONS.
The Pious Fund case was first brought to the attention of the American Government through a letter addressed by Mr. John T. Doyle, on behalf of the bishops of California, to the Hon. Lewis Cass, Secretary of State of the United States, which letter was dated July 20, 1859, and is to be found on page 5 of the transcript of record. This letter asked for the "enforcement of" the rights of the bishops "against the Government of Mexico," stated briefly the facts in the case, and requested the interposition of the Government. No steps seem to have been taken based upon this letter.
Later, differences arising between the two countries because of grievances complained of by the citizens of each country against the other, a convention was agreed upon between the United States and Mexico, this convention being concluded July 4, 1868, and ratifications exchanged February 1, 1869. By virtue of its terms the first session of the Commission thereunder took place in Washington July 31, 1869. Subsequent agreements between the two countries extending the operations of the tribunal so created are summed up elsewhere in this brief.
Within eight months after the first meeting provided for, and on March 30, 1870, the bishops of California, by Mr. Eugene Casserly, again made the State Department acquainted with the fact that they were the owners of a large claim against Mexico, his letter being found on page 8 of the transcript. The letter was followed by a memorial, complete in all particulars, and filed before the arbitrators December 31, 1870 (Transcript, p. 9). A large amount of evidence was filed with the memorial, and, apparently assuming that all the evidence on behalf of the claimants was in, Mr. Cushing on April 24, 1871, filed a motion to dismiss for the following reasons (Transcript, p. 67):
(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 8, 1848, and this Commission has no jurisdiction of the claim.
In his brief accompanying said motion Mr. Cushing discussed at length the evidence already before the Commission, insisting that it was insufficient to make a case of which that body should take cognizance, as well as that the petitioners were without legal right for the reasons above indicated. Briefs were filed in reply, followed by additional evidence on behalf of the complainants, and succeeded by a brief with extensive evidence relating to the facts of the case furnished by the Mexican Government.
The case, therefore, being fully placed before the court on both the law and the facts, was considered by the arbitrators; the American arbitrator finding on behalf of the complainants for $904,700.99 and the Mexican arbitrator finding for the defendant.
The case thereupon went to the umpire, and before him extended arguments were filed on behalf of the parties in interest: John T. Doyle (Transcript, p. 557), Nathaniel Wilson and P. Phillips (Transcript, p. 575), and Eugene Casserly (Transcript, p. 594) all presenting briefs, and Sr. Eleuterio Avila, on behalf of the Mexican Government (Transcript, p. 546), presenting an exhaustive argument. After having considered the case, the umpire, Sir Edward Thornton, on November 11, 1875, awarded against Mexico and in favor of the claimants the sum of $904,700.99 in Mexican gold (p. 606).
On January 29, 1876, the agent for Mexico filed a motion for rehearing, supported by a lengthy argument (pp. 615-647). This motion was, on November 18, 1876, denied by the umpire (p. 647), although on the same day, by a further order, he made a correction of an error in computation to which his attention had been called (p. 650).
The award was duly paid by Mexico in conformity with the terms of the several conventions, although some correspondence ensued with reference thereto, which correspondence is to be found in the latter part of Diplomatic Correspondence. By a letter on pages 77 and 78 of Diplomatic Correspondence the Mexican secretary of foreign affairs declared that
Though the final award in the case (Pious Fund) 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.
To this Secretary Fish, under date of December 4, 1876 (Diplomatic Correspondence, p. 79), replied, among other things, as follows:
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
In his reply in turn to the foregoing, Señor Mariscal (Diplomatic Correspondence, p. 80) said:
It is not my intention, nor the intention of Señor Avila, to open any question whatever, nor to put in doubt the final and conclusive character of the above-mentioned award. (Pious Fund.)
In a further letter Señor Villarta (Diplomatic Correspondence, p. 81) replied at length.
After the letter last mentioned no further correspondence with relation to the Pious Fund took place between the two countries until the letter of Mr. Ryan to Señor Mariscal, dated August 17, 1891. (Diplomatic Correspondence, p. 8.)
From the date last named until the signing of the protocol by virtue of which this court is convened the correspondence between the two countries was quite active, leading up finally to the making of the present arrangements.
DATES OF CONVENTION OF 1868 AND SUPPLEMENTS THERETO WITH 66 RELATION TO THE SITUATION OF THE PIOUS FUND" CASE.
Ratifications of the convention of 1868 were exchanged at Washington February 1, 1869. The first meeting of the arbitrators under this convention took place on the last day of the six months allowed therefor that is, on July 31, 1869. This convention provided, Section III, that every case should be examined and decided within two years and six months from the date last mentioned-that is to say, the proceedings under the convention were to terminate January 31, 1872. The Pious Fund case was referred to the commission August 13, 1869; statement filed March 31, 1870; memorial filed December 31, 1870, and on January 31, 1872, the cause was pending on motion to dismiss, filed by Mr. Cushing on April 24, 1871.
A 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, and ratifications exchanged February 8, 1872, eight days after the original convention had expired by limitation. This extended the first commission for not exceeding one year from January 31, 1872, or, in other words, to January 31, 1873.
On January 31, 1873, motion to dismiss, filed by Mr. Cushing, was still pending and undetermined, although on March 1, 1872, a reply. thereto had been filed.
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,
At the time of the expiration of the functions of the commission by the conven