6. The proposition advanced by Mexico in Paragraph VI of her answer is the same as that advanced by her in other paragraphs thereof. It is to the effect that she had the right, as trustee to the fund, in succession to the Jesuits, to apply the fund to other missions. We have replied to that point in several rejoinders we have made to various paragraphs of Mexico's answer, wherein she advanced the same argu

ment.

Whatever power Mexico had in the matter may be laid out of view. She exercised certain powers. In the exercise of these powers she made certain agreements. Those agreements we are endeavoring to enforce against her.

7. The seventh paragraph of Mexico's answer (VII) is devoted to three propositions:

(a) That the award in this case, if any be made, should be made payable in Mexican silver dollars.

(b) That the division claimed by the United States of 85 per cent to Upper California and 15 per cent to Lower California is unfair.

(c) That after the Marquis of Villapuente and the Marquesa de las Torres de Rada had conveyed their estates to the missions in 1735, the title of the Marquesa acquired in the administration of the estate of her husband, viz, the Marquis de Rada, was invalidated, and hence the donation to the Pious Fund failed.

These propositions we shall treat in the order named.

(a) This point is dealt with in the brief of Messrs. Doyle and Doyle (pp. 25, 26) and in that of Messrs. Stewart and Kappler (pp. 21, 22), and need not detain us.

(b) This point is likewise dealt with in the briefs of Messrs. Doyle and Doyle (pp. 22-25) and Messrs. Stewart and Kappler (pp. 23 and 24), and we shall not discuss it.

(e) It is not claimed by Mexico that she did not sell the properties belonging to the Pious Fund, including those which had been derived under the Villapuente deed. But she offers in evidence a volume to show that the title conveyed by the grantors to the missions failed in litigation which arose concerning it.

Even if this were so, Mexico would still be answerable for the prices realized upon the sale of the properties. These properties were in the possession of the bishop in 1842. The decree which Mexico now invokes to defeat the award asked for here bears date 1749, ninety years before the incorporation of the fund in the national treasury. This defense by Mexico is offered in her answer as though the matter were new to this controversy. It is to be found dealt with, however, in the Ramirez-Valencia correspondence. (Transcript, pp. 518-523.) The whole history of the litigation is stated by Pedro Ramirez in a communication which he addresses to three lawyers of the City of Mexico, asking their opinion upon the matter. If this statement for an opinion submitted by Mr. Ramirez, with the opinion of the attorneys, is examined it will be found that the facts relied upon by Mexico do not warrant the conclusion which she seeks to draw from them. A synopsis of the facts which appear in the "Pleito Rada" are stated as Exhibit B to the Replication (pp. 37-44).

The facts of this litigation were these:

The Marquis de Rada died on April 23, 1713. Appraisers were appointed and proper inventories of his estate returned to the probate court. His widow, the Marquesa de Rada, claimed the entire estate,

"founded on her dowry and the tutorship of the children of her first marriage," as well as on account of other obligations due to herself from her deceased husband.

The court awarded the entire estate to the Marquesa de Rada on September 9, 1713. (Replication, p. 38.) In 1718 the heirs of the Marquis de Rada claimed that there had been concealment of goods and undervaluation by the appraisers, and that the estate of the Marquis was more than sufficient to satisfy the demands of the Marquesa against it. They also insisted that there should be a surplus, to which they were entitled as heirs. These claims of the heirs were rejected in several of the courts through which the litigation passed.

It will therefore be seen that the question in the litigation was whether there was an excess or a deficiency of assets. In the meantime the property which had been surrendered to the Marquesa de Rada under the original award of the court passed to the Pious Fund of the Californias.

The controversy was appealed to the Royal and Supreme Council of the Indies at Madrid. By that court the inventories were canceled, and all persons in interest were remitted to the court of first instance for further hearing and proofs. Its decree was made April 16, 1749.

On the return of the case to the court of first instance the cause was retried, and finally decided on January 31, 1829. By the judgment of January 31, 1829, it was decreed that the missions should pay to the heirs of the Marquis de Rada $158,175, reserving questions concerning rents covering a certain period.

This judgment, in effect, was a decree that the properties of the Marquis which had been taken over by his widow, the Marquesa, and conveyed to the Pious Fund, were more than sufficient to discharge all of her rights by the sum of $158,175, and that accordingly her grantee should pay this sum to the persons legally entitled to the excess. This judgment had not been paid by the year 1842, and at that time certain property held by the Pious Fund was seized."

The properties seized were the estate of Cienaga del Pastor and the Vergara street houses, which were derived, not through the Villapuente donation, but through the Arguellas donation. (Transcript, p. 520.) The record does not show how this judgment of $158,175 was discharged, nor, indeed, that it ever was discharged, nor whether the litigation was prosecuted to other courts and the judgment of January 31, 1829, reversed or annulled; but the record does show that the right of the missions as successors in interest to the Marquesa were recognized, subject to a lien of $158,175.

A clear idea of this litigation will be derived from the reading of the document in the transcript (Transcript, pp. 518-523) and Exhibit B, in the replication (pp. 37-44).

The former arbitral court refused to make any allowance in the amounts decreed to be the principal of the Pious Fund on account of the Cienaga del Pastor, upon the ground that it had been attached to satisfy the above-mentioned lien of $158,175, besides interest, "and there is no evidence in this record that the Government (of Mexico) ever obtained the property or derived any benefit from it. (Transcript, p. 526.)

By proof produced before this court through discovery from Mexico, we have shown that the Cienaga del Pastor was sold by the Govern

ment of Mexico November 29, 1842, for $213,750, and the personal property thereof for $3,000. (Replication, p. 47.)

As hereinabove stated, we seek to charge Mexico with these two sums in the event that the whole case is not deemed res judicata.

It will be seen from the foregoing that the properties of the Pious Fund devoted by the Marquis de Villapuente and the Marquesa de Rada were never lost to it. The only damage which it sustained was to labor under an attachment of $158,175 and interest. Whether that attachment was paid or otherwise discharged does not appear by the record. It is respectfully submitted that the award of this court should be for the amount asked for in the memorial of the United States, based upon the idea of the principle of res judicata controls here, and failing that, that the award should be for the United States, based upon the demand stated in its memorial as the true amount due in the event that the principle of res judicata is held to not control the decision of this court.

THE HAGUE, September 25, 1902.

GARRET W. MCENERNEY,
Of Counsel for the United States.

[Submitted by Messrs. Doyle and Doyle.]

OBSERVATIONS ON THE ANSWER OF MEXICO TO THE MEMORIAL OF THE UNITED STATES.

This document has rather the character of an argument than a pleading in the modern sense. It does not, so far as we can discover, either controvert or confess and avoid a single allegation of fact in the memorial, but denies the effect of the former decision as res judicata, and seeks to deduce from the evidence given on the former trial a different verdict from what the tribunal then arrived at, as if this were a court of appeal competent to review that former decision, as well on the facts as on the questions of law involved. Such, however, is not the office of this court. The only question it has to decide with reference to the tribunal of 1868 is sharply defined by the protocol under which it is acting, and reads: "Is said claim (the claim on behalf of the Catholic Church of Upper California), as a consequence of the former decision, within the governing principle of res judicata?" What is the governing principle of res judicata? We think it may be defined as a legal principle declaring that "the truth of the disputed right having once been inquired into and decided by the final judgment of a competent legal tribunal, having jurisdiction of the parties and the controversy, can not thereafter be called in question by either of them or by any party claiming or deriving title under either of them.

In his answer to the memorial the pleader seeks, in the application of the rule "res judicata pio veritate accipitur," to distinguish between decisions of courts of justice organized by authority of the sovereign for the administration of justice, which he terms "decisions pronounced by judges invested with lawful authority to decide the case, its reasons and consequences," and these "pronounced by arbitrators, who have no actual jurisdiction nor any greater powers than what are granted to them by the terms of the submission," and he claims, with respect to the latter, a most strict interpretation of everything relating to an action or defense founded on res judicata.

A general discussion of the differences in this respect between the consequences of an arbitral decision and those of the judgment of a court of law would be inappropriate here; for while there are many different varieties of arbitration, from the wager, left to the offhand decision of some third person, up to the international tribunal, which, under the most solemn responsibilities, decides between sovereigns controversies of the greatest magnitude and highest moment (such as the two arbitrations between the United States and Great Britain under the treaty of Washington), the court is not here required to lay down any general rule for such cases, nor for any particular class of them. We are only concerned here with the value, as res judicata, of a decision pronounced by the international tribunal created by the

convention between the United States and Mexico of July 4, 1868. For this we look naturally, first, to the terms of the convention which called the tribunal into existence and defined its powers. In it we find that the commissioners were required by Article I, before proceeding to business, to make and subscribe a solemn declaration that they will impartially and carefully examine and decide to the best of their judgment and according to public law, justice, and equity, without fear, favor, or affection to their own country, upon all such claims above specified, as shall be laid before them," etc. The umpire also is to "make and subscribe a solemn declaration in form similar" to the above.

The commissioners were provided with two secretaries and empowered to hear testimony and decide not only each one of the cases presented to them, but also, by Article III, the question of their own jurisdiction and authority, if questioned. "It shall be competent," says the convention, Article III, "for the commissioners conjointly (or for the umpire, if they differ) 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," and by Article II "the parties solemnly and sincerely engage to consider the decision of the commissioners, conjointly, or of the umpire, as the case may be, as absolutely final and conclusive upon each claim decided upon by them or him respectively and to give full effect to such decisions without any objection, evasion, or delay whatsoever. The Spanish is, if possible, even stronger; they promise

Considerar la decision de los commisionados, de acuerdo, ó del arbitro segun fuese el caso, como absolutamente final y definitiva, respecto de cada una de las reclamaciones falladas por los commissionados, ó del árbitro, respectivamente, y á dar entero cumplimiento á tales decisiones sin objecion, evasion ni delacion ninguna.

These are unusually strong expressions on the subject of the effect of the awards, as will be seen by comparison with other conventions of like nature.

It

We are not then treating of any informal or extemporized arbitration, but of the determination of a tribunal constituted in all respects on the lines of a high court of justice, composed, too, of men of exalted character, and distinguished as well for moral and intellectual qualities as for learning. True, it derived its authority from the consent of the two Governments; but, according to the American idea, on which both the litigant States are founded, the consent of the governed is the foundation of all the just powers of government. The tribunal created by the convention of 1868 may be called, if you please, a commission of arbitration, but it was in fact an international court of the highest rank and dignity, just such a court as the present one. dealt with over eight hundred cases, all of them of magnitude and importance, rendering judgments for and against two sovereign States. To ascribe to the decisions of such a tribunal less authority or less effect than to those of any ordinary court of justice is to dwarf and belittle the whole subject. If its adjudications did not possess all the authority of res judicata, neither will those of the present court, for it also derives its jurisdiction only from consent of parties, though, unlike the other, it is constituted, so far as its personnel is concerned, ad hoc only and has jurisdiction of but a single case. Now, we ask with all confidence, is it possible that, should the decision in the present case be against the United States, the relators will be at liberty again next