Mexico took from the possession of the bishop of California, its natural administrator, a fund which, including principal and interest, amounted to nearly $2,000,000. This fund, which, from every moral principle, it became the duty of Mexico to return intact to the former possessor, or for which she should have rendered a just equivalent, has, so far as this tribunal knows, never been returned, and ever since 1842 (save for trifling sums before the cession given to the bishop of California, and interest upon one-half of the principal, which was awarded to the bishops of California, for the term of twenty-one years) she has fully enjoyed, and, so far as the parties in interest are concerned, she continues to enjoy. If it be just that a nation, because of its might, should possess the power and ability to despoil her citizens and her corporations, of whatever nature, of the properties within their possession, then indeed is the claim of the United States unjust. But if, on the other hand, the rules of morality prevailing as between man and man should obtain as between a nation and its citizens or subjects, or the citizens or subjects of other nations, and property wrongfully taken by its authority, or an equivalent therefor or interest thereon, should in justice be returned to those who have been deprived of its benefit, then indeed is the claim of the United States just under the language of the protocol.

Believing that this tribunal will uphold the thing which is right, the United States confidently appeal for payment of the interest justly due and contracted to be paid by Mexico.

SUMMARY.

Reviewing the positions taken in the foregoing brief, we summarize them as follows:

AS TO RES JUDICATA.

The amount of the proper judgment in this case is fixed by the terms of the former award, because

(a) The Mixed Commission had the right to pass, and did pass, upon its own jurisdiction.

(b) It was entitled to interpret, and did interpret correctly, the convention of 1868.

(c) Mexico waived her right to object to the jurisdiction of the Mixed Commission by entering upon the trial of the former case without reservation.

(d) Mexico further waived any right to object to jurisdiction by signing new conventions, extending the old, while the Pious Fund case was still pending and undetermined, Mexico not withdrawing the case from the commissioners or umpire, and therefore confessing jurisdiction; all of which will more readily appear by reference to the dates of the several supplementary conventions and the position of the Pious Fund case at the time of their signing or ratification.

(e) The doctrine of res judicata applies to arbitral decisions and to the findings of international commissions.

(f) There was no error in the former proceedings of any kind, much less one affecting the jurisdiction of the Mixed Commission, and this fact was recognized by Mexico, no allegation of error having been offered even after the award had been made public.

(g) The former award being res judicata of the matters directly and

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impliedly in issue before the Mixed Commission, determines absolutely the amount of annual interest due by Mexico according to the decisions of both common-law and civil-law courts.

WITH RESPECT TO THE MERITS.

1. The Pious Fund was at all times considered as religious in its character, and its beneficial ownership vested in the Roman Catholic Church. 2. Mexico is under moral and legal obligation to pay interest upon both principal and interest of all of the property taken by her from the Bishop of California, and if this case be decided upon the merits her obligation is larger than it was before adjudicated to be.

Respectfully submitted.

JACKSON H. RALSTON, Agent, and of Counsel for the United States of America.

WILLIAM L. PENFIELD, Solicitor for the Department of State of the United States of America, and of Counsel.

STATEMENT ON BEHALF OF THE UNITED STATES.

[Submitted by Senator William M. Stewart and Mr. C. J. Kappler.]

This controversy grows out of donations made by pious persons in the eighteenth century to create a fund for the civilization and conversion of the natives of the Californias, and for the maintenance and support of the Catholic religion in that country. The fund created by such donations was covered into the Mexican treasury by the decree of October 24, 1842, with an undertaking on the part of Mexico to pay interest thereon for the purposes intended by the donors. After the sale of California to the United States the Mexican Government failed to pay the agreed interest on that part of the principal belonging to the missions of Upper California. The questions as to the amount of the principal and the amount of the interest due thereon, with all collateral questions necessary to be decided for the determination of those questions, were submitted to arbitration by the United States and Mexico by the convention of July 4, 1868. The commissioners of the United States and Mexico failing to agree, Sir Edward Thornton, the British minister at Washington, made the decision as umpire, and found that the principal, which was a permanent investment, amounted to $1,435,033; that the part to be apportioned to Upper California was $717,516.50, and that the interest then payable amounted to $904,070.79. He therefore rendered judgment for such interest against Mexico and in favor of the bishops of California. Mexico thereupon paid the judgment, but she has paid no interest on the principal since October 24, 1868. The present proceeding is to determine what interest, if any, is now due and payable to the bishops of California.

I.

The United States contend that all questions relating to the principal investment and the annual interest due theron, and all questions of the rights of the bishops of California thereto, were determined and became res judicata by the decision in the former arbitration.

We will not now discuss the question of res judicata, but refer this honorable tribunal to the argument of the agent and counsel of the United States on that subject. We will, however, venture the assertion that no tribunal of recognized authority, whether national or international, having jurisdiction of the parties and the subject-matter has ever held that any question, either of law or fact, which it was necessary to decide to reach the final judgment was not res judicata and binding upon the parties and their privies in all subsequent proceedings involving the questions thus put in issue and decided. This principle is especially important in international courts of arbitration, because if matters decided by them are not finally settled such courts will naturally fall into disuse.

II.

We are now confronted with the denial by the representative of Mexico that anything became res judicata by the judgment in the former arbitration, except the duty of Mexico to pay the sum of $904,070.79 awarded, and also with his contention that every matter of law and fact upon which such judgment was founded and which was necessarily decided to reach the final conclusion, is still open to investigation and decision. We confess our surprise at the position taken by the representative of Mexico. But without waiving the question of res judicata, and being desirous of treating respectfully any argument the representative of Mexico may advance, we will make the following statement of the case:

The Californias consisted of the peninsula of California and the western part of the Spanish dominions in North America. The harbors of San Diego, Monterey, San Francisco, and numerous other harbors and landings were visited and the rivers and streams connected therewith explored a considerable distance inland by Spanish navigators and adventurers. The explorers had penetrated and described the country sufficiently to show that Upper California was a vast region, blessed by nature with a salubrious climate and boundless resources. It was occupied by numerous tribes of Indians, furnishing an almost unlimited field for the work of the Christian missionaries in converting the natives to the Catholic religion.

As early as 1697 donations were made, and thereafter continued to be made from time to time down to 1765, by the Christian people of Spain to the fund now known as the "Pious Fund of the Californias," to be used for the civilization and conversion of the natives of the Californias. These donations were made for the avowed purpose of civilizing and converting the natives to Christianity and for the maintenance and support of the Catholic missions in the Californias. In 1735 a large donation was made by the Marchioness de las Torres de Rada and the Marquis de Villapuente. The object and desire of the donors were then fully set forth and particularly described. The habendum of their deed, which is denominated the Foundation Deed, proceeds as follows:

To have and to hold, to said missions founded, and which hereafter may be founded, in the Californias, as well for the maintenance of their religions, and to provide for the ornament and decent support of divine worship, as also to aid the native converts and catechumens with food and clothing, according to the destitution of that country; so that if hereafter, by God's blessing, there be means of support in the “reductions” and missions now established, as ex. gr. by the cultivation of their lands, thus obviating the necessity of sending from this country provisions, clothing, and other necessaries, the rents and products of said estates shall be applied to new missions to be established hereafter in the unexplored parts of the said Californias, according to the discretion of the father superior of said missions; and the estates aforesaid shall be perpetually inalienable, and shall never be sold, so that, even in case of all California being civilized and converted to our holy Catholic faith, the profits of said estates shall be applied to the necessities of said missions and their support; and in case that the reverend Society of Jesus, voluntarily or by compulsion, should abandon said missions of the Californias, or (which God forbid) the natives of that country should rebel and apostatize from our holy faith, or in any other such contingency, then, and in that case, it is left to the discretion of the reverend father provincial of the Society of Jesus in this New Spain for the time being, to apply the profits of said estates, their products and improvements, to other missions in the undiscovered portions of this North America, or to others in any part of the world, according as he may deem most pleasing to Almighty God; and in such ways that the dominion and government of said estates be always and perpetually continued in the Reverend Society of Jesus and its prelates,