POINTS SUBMITTED BY MESSRS. DOYLE & DOYLE, OF COUNSEL FOR THE PRELATES.

(The references, unless otherwise expressed, are to the pages of the printed Transcript.)

The case we present to the court is historical, and carries us back to the close of the seventeenth century, when, all previous attempts to colonize the peninsula of Lower California having failed and been abandoned as impracticable, the Jesuits, encouraged by their success in establishing missions throughout the northern frontier of Mexico, offered the services of their members for the like purpose in California, on condition that they might themselves select the civil and military officers to be employed. This proposal was assented to by the Crown, it being formally stipulated that possession of the country should be taken in the name of the King, and that the royal treasury should not be called on for any of the expense of the enterprise without His Majesty's express order. The fathers proceeded at once to collect alms (limosnas) for the purpose, and commenced the work. The first mission, that of Our Lady of Loretto, was founded in 1698, and that of San Francisco Xavier, the second, in 1699. These were followed by others founded at intervals down to 1757, when that of San Francisco Borja, the last of those of Lower California, was established. We have no full record or account of the amounts collected in smaller sums, though we know that they must have been considerable, as the historian mentions casually over $17,000 collected in minor sums from a few benefactors in January, 1697. It was, however, considered that the income of $10,000 would be needed for the support of each mission, and charitable persons were asked to contribute for the undertaking that amount or multiples of it. Thus the 13 missions of the peninsula represented a capital of $130,000, contributed by the following persons, viz:

These sums with the smaller ones above referred to and subsequent accretions obtained the name of the Pious Fund of the Californias, by which name the capital in question has ever since been known.

In 1735 the Marquis de Villa-Puente and his lady, the Marchioness de las Torres de Rada, by a deed of gift inter vivos, donated to the Jesuits, for the missions of California, estates and properties of great extent and value; a copy of the conveyance, certified by the successor of the notary before whom it was executed, forms part of the record

of the former arbitration respecting this matter, presently to be mentioned. The value of this contribution was estimated, even at that early day, at over $400,000. Another large contribution came from the will of Doña Josefa Paula de Argüelles, a wealthy lady of Guadalajara, amounting to over $600,000, as nearly as we can ascertain, and still another from the will of the Duchess of Gandia, who having bequeathed large sums to provide annuities for her servants, directed that as the life estates fell in the capitals should be added to the Pious Fund. From this source $62,000 had been realized in 1747, with as much more to come in.

The Jesuits, as is known, were excellent financial managers, always putting that department of their affairs into the hands of the most capable of their members. The Pious Fund was invested by them in productive property, urban and rural, and its revenues well cared for and economized, so that it increased largely in amount and importance. The pragmatic sanction of 1767 expelling the Jesuit order from all the Spanish dominions was put into effect in California in 1768, and the missions were turned over to the Franciscans. Afterwards, when those establishments were advanced farther up the coast into Upper California, those of the peninsula were confided to the Dominicans, and those of Upper California to the Franciscans. These friars made their first entrada into the upper province in 1769, when the mission of San Diego was founded, and they continued thereafter to advance the spiritual conquest of the country and established within the limits of the present State of California in all 21 missions, the latest of which was founded in the year 1823. These were maintained out of the income of the Pious Fund.

On the expulsion of the Jesuits from its dominions the Spanish Crown succeeded to the administration of the Pious Fund as trustee, and in like manner Mexico, on achieving her independence, succeeded to the former sovereign; each of them, however, recognized the trust character of the estate and the duty of applying its income to the support of the missions. During the trusteeship of Spain the monarch sometimes borrowed portions of the capital to supply the ripe wants of the viceroyalty, but always inscribed the sums so taken on the register of his probity, and made promise of repayment with interest; and Mexico, among the earliest acts of her independent sovereignty, solemnly recognized the debts of the viceroyalty as due and to be paid by the Mexican nation, which succeeded it, and recognized those debts to the Pious Fund originally of the viceroyalty as due by the Mexican Republic.

The property of the Fund continued to be managed by a junta, or board of public officers, under Spain and Mexico successively, until the year 1836, when it was determined to apply to the Holy See for the establishment of a bishopric in the Californias, and as an inducement to assent to the arrangement the act of the Mexican Congress proposed to commit to the incumbent of the new diocese the management of the Pious Fund. The Right Rev. Francisco Garcia Diego, who had till then been president of the missions, was accordingly raised to the episcopal rank, and fixed his see at Monterey, in Upper California. He continued in the management of the Fund, which he received November 2, 1840 (Transcript, pp. 495, 520), applying its income to the support of the missions, as before, down to February, 1842, when the Mexican Government, by a decree of President Santa Anna, resumed the management of it, and the properties of the Fund,

real and personal, were turned over to Gen. Gabriel Valencia, nis chief of staff, appointed for the purpose by him, accompanied by a formal inventory, of which a copy is contained in the record of the former arbitration, presently to be referred to. Of the particulars of the rural property delivered to General Valencia we are but imperfectly informed. On October 24, 1842, by another decree of October 24, 1842, the whole property of the Fund was incorporated into the public treasury of Mexico, ordered to be sold, and the Government, always respecting the intentions of the founders, undertook to pay interest on the proceeds at the rate of 6 per cent per annum, to be applied to the missions as before.

Upper California was ceded to the United States by the treaty of Guadalupe Hidalgo, February 2, 1848, the United States paying therefor $18,250,000-$15,000,000 in cash and $3,250,000 by releasing her from demands amounting to that sum, due to American citizens.

After the separation of Upper California from Mexico the latter ceased to make any payments of interest on the Pious Fund to the benefit of the ceded territory, and after vain demand therefor and application to the Government of the United States for its interposition with Mexico to obtain satisfaction, the bishops of the American State of California, successors of Francisco Garcia Diego, bishop of Monterey, presented their claim for arrears of interest accrued on the Pious Fund since the 2d of February, 1848, before the Mixed American and Mexican Commission created by the convention of July 4, 1868. After proofs and arguments the case was submitted to the Commissioners, who differed in opinion on it and filed their several opinions in May, 1875. The case was then referred to the umpire, Sir Edward Thornton, who concurred in opinion with the American Commissioner and declared the annual interest undertaken to be paid by Mexico on the fund to amount to the sum of $86,101.98, of which he decided that the claimants were entitled to one-half, say $43,050.99, of which he awarded the claimants 21 installments for the twenty-one years elapsed between October 24, 1848, and February 1, 1869. After correcting an arithmetical error, to be noted further on, this amounted to $904,070.79, all of which has since been paid by Mexico, in accordance with the terms of the convention.

The present demand is for the installments of interest that have accrued since February 1, 1869, now 33 in number, and in reference thereto the Government of the United States, acting on behalf of the prelates, is of opinion and insists that the determination of 1868 establishes conclusively against Mexico both the liability and the amount demanded, under the well-known rule of law, "res judicata pro veritate accipitur." This claim Mexico denies. The prelates, and the United States on their behalf, also claim that if not so established as res judicata, the demand they make is a just one, and that for want of complete information on their part, at the time of discussing the former case, of material facts since discovered by them, and an error of judgment committed by the umpire, the former award was made for a sum materially less than justice required, and that if open to reexamination on the merits the award now to be made should be for a considerably larger annual interest than was awarded in the former judgment. Hence the two questions to be decided by the present high court are: (1) Whether the decision of the present demand is controlled by the determination of the former award as res judicata? And (2) if

not so controlled is this a just claim? And they are so stated in the protocol under which the court is constituted.

I. The first question proposed has been fully and ably discussed by the agent of the United States, and his views on it are, in our opinion, entirely in accordance with sound principles and the highest interests of civil society; for the practice of international arbitration is so conducive to the welfare of all nations that the interests of civilization demand that the highest authority be accorded to the judgments of such tribunals; and indeed while the final decision of any court of justice is held to be conclusive on the parties to the proceeding, as to the truth of any disputed fact determined by it, we can not conceive that that of an international tribunal whose high office it is to administer justice between sovereigns can command less authority. Indeed the eminent secretary of state of the Mexican Republic recognizes this truth, in his correspondence with the United States, saying, the principle of res judicata pro veritate accipitur is one admitted in all legislation," adding that "a tribunal established for international arbitration gives to its decisions, pronounced within the limits of its jurisdiction, the force of res judicata." His zeal appears, however, to affect his judgment in the practical application of this conceded rule to the present case, and feads him to deny the conclusiveness of the decision of the Mixed Commission of 1868. He deems the award made by it invalid, apparently, for two reasons, viz: First, because he does not consider the preliminary presentation of the claim to the United Stated Government with a request for its intervention satisfactory; and, second, because he claims that only such matters as are expressed in what he terms the decisory part of the judgment have the force of res judicata.

Without the least disrespect to the judgment of the eminent gentleman who presses these views, we are unable to assent to the accuracy of either proposition; for to take them in inverse order, the lastmentioned objection is really based on the requirements of the French law of civil procedure (perhaps adopted in some other continental States) which regulates the forms of judicial sentence in civil cases." a "Justicia gentes frenare superbas" Virg.

Letter of November 28, 1900, par. 17. (Dip. Cor., pp. 31 and 39.) eCode de procedure Civile; Liv. 11. Tit. VII. Jugements.

SEC. 141. La rédaction des jugements contiendra les noms des juges, du procurer du roi, s'il á été entendu, ainsi des avoués; les noms professions et demeures des parties, leurs conclusions, l'exposition summaire des points de fait et de droit, les motifs et le dispositif des jugements. (L 16-24 Août 1790, art. 15. L 20 Avril, 1810, art. 7.) Les codes annotés de Sirey. Edition entièremen refondue par P. Gilbert. Paris Marchal Billard et cie. Place Dauphine, 27. 1875.

See, also

Repertoire universelle et raisonné de jurisprudence, 5me edition par M. Merlin, ancien Procurer Général à la Cour de cassation. Bruxelles, H. Tarlier, 1826. Tom. XVI. p. 180. Tit. jugements, § 11.

"§ 2. Da la rédaction, de la date et de la signature des Jugements. I. Pour les 'matières civiles, l'art. 15. du tit. 5 de la loi du 24 Août, 1790, contenait sur la rédaction des judgements, une disposition ainsi conçue.

"La rédaction des jugements tant sur l'appel qu'en première instance, contiendra quatre parties distinctes:

"Dans la premiére, les noms et les qualités des parties seront enoncés;

"Dans la seconde, les questions de fait et de droit, qui constituent les procès, seront posées avec précision;

"Dans la troisieme, le résultat des faits connus ou constatés, par l'instruction, et les motifs qui auront determiné le jugement, seront exprimés; La quatrième enfin contiendra le dispositif du jugement.

"Toute contravention à cette règle emportait nullité. Cela résultait de l'art. 2 de la loi du 4 germinal an 2."

But such laws have no application to the judgments of international tribunals, which adopt whatever forms and modes of procedure they deem most convenient and appropriate. Doubtless the conclusiveness of the adjudication extends no further than the matters actually decided or necessarily implied in it; but it does not depend on what part of the decision the fact in question is found, but upon whether it is really found therein. Here the demand was for annual installments of interest at 6 per cent per annum on a certain sum of money. The award, therefore, necessarily involved the determination of the amount of the principal and the time elapsed; and as only a portion of the whole was demanded the ratio of division between the two parties interested had also to be decided.

Now, the opinion of Commissioner Wadsworth (pp. 525–526), which the umpire adopted (p. 609), leaves no room to doubt the actual decision on any one of the points. He defines the capital, enumerating the several items constituting it, fixes the rate of interest at 6 per cent per annum, and the time elapsed at twenty-one years; the rate of division between the two provinces he says should be equality, in all which decision the umpire concurs; but the counsel for Mexico having called the attention of the latter to an arithmetical error in Mr. Wadsworth's addition of the items, he corrected it by making the necessary deduction. (Transcript, p. 650.) We scarcely suppose that this correction of an obvious clerical error is to be relied on to impeach the validity of the judgment. If it is, the ready answer arises, that having been made at the instance of Mexico, her assent to it is undeniable; from the character of the mistake, too, that of the United States and of Mr. Commissioner Wadsworth must also be presumed.

The suggestion that the claim did not come within the jurisdiction of the Commission of 1868 is more than once alleged by Señor Mariscal in his correspondence, but the grounds of such contention are not specified; so that we are left to infer them from the arguments of Mr. Cushing and Señor Avila. (Transcript, pp. 71 and 635, § 126.) The latter gentleman contends that the preliminary informal presentation of the claim called for by the convention was defective, while the former considers that the injuries complained of preceded the treaty of Guadalupe Hidalgo and were excluded from the cognizance of the Mixed Commission by that fact.

1. This last objection was, we think, satisfactorily answered in the argument of Mr. Doyle. (Transcript, pp. 93 et seq.) The ground was there taken that the word "injury is a very broad one in law and includes any deprivation of legal right quidquid est contra jus" and we think that it can not be doubted that the withholding of money due ex contractu, or the ommission of a trustee to apply money in his hands to the purposes of his trust in accordance with its terms, is an injury to the beneficiary or cestui qui trust. That view the tribunal sustained, and we have seen no argument to shake our conviction of its soundness. We did not base our complaint on the taking of the property by Mexico, and probably could not have done so successfully, as the President's decree had the force of law. Our complaint was, that having taken the property under a distinct promise to pay a certain price for it, the Mexican Government failed to pay the price.

2. As to the objection that the preliminary presentation of the claim was defective, it is, we think, easily disposed of. The object of preliminary presentation was to identify the matter forming the subject