III.

A. For the moment, under this heading, following the answer of Mexico, attention is invited to the fact that Sr. Mariscal in his statement in the answer of the trusts upon which the Pious Fund was held only included them in so far as he esteemed them as assisting to sustain the argument he desired to make. We have not believed that the court could be enlightened or brought to a proper conclusion by this method of treatment, and in the original brief we have fully stated the trusts, and, for the convenience of the court, we have repeated them in a footnote to the English copy of the answer. (See Exhibit A, hereto attached.) In the American view of the matter, a proper conclusion as to the meaning of the instrument in question can only be gained by a perusal of its essential parts, and any argument predicated upon partial and imperfect quotation must be erroneous in itself, and incidentally have a tendency to mislead the court.

To the point discussed under this paragraph subsequent reference will be made.

B. Under this heading, Sr. Mariscal renews the contentions made by him in his letter to Secretary Hay, of date November 28, 1900 (Diplomatic Correspondence, pp. 27 et seq.), insisting that only the decisory part of the judgment is to be regarded as res judicata. It will be noted, however, that in the letter above referred to he relied upon Laurent to sustain his contentions. That he was in error as to the effect of the legal citation he then employed, must, we think, appear fully by reference to the letter of Messrs. Ralston and Siddons (Diplomatic Correspondence, pp. 51 et seq.), wherein it is shown that the citation relied upon by Laurent for his statement was based upon a case not properly involving the principle laid down by him, while upon the very page from which the citation was taken, Laurent showed that if the matters necessary to be found to make up a judgment had been debated between the parties, the judgment of necessity in these respects had the force of res judicata. It will be borne in mind that before an award could have been given in the former controversy in favor of the bishops of California, it was necessary that the court should have found the existence of a fund, the possession of it by Mexico, her obligation to pay interest thereon to the Catholic bishops, the yearly amount due by her on account of such obligation, and the number of years for which she was in default. Questions upon all of these matters were raised. They were made the subject of evidence and fully debated between the parties, and, as Laurent would indicate, having been so debated, the authority of the conclusions reached as res judicata "n'est point douteuse."

66

Having therefore abandoned Laurent, he now discusses Savigny, and in the translation of the answer hereto attached (p. 23") he quotes him as expressing his own opinion to the effect that the force of res judicata does not exist except in the decisory part of the judgment." In making this statement Sr. Mariscal is manifestly in error. We hesitate to attribute to him want of care in his reading of Savigny, but the exact language of that author is as follows:

C'est une doctrine fort ancienne et soutenue par un grand nombre d'auteurs que l'autorité de la chose jugée appartient au jugement seul, et non à ses motifs, et cette doctrine se résume en ces termes: L'autorité de la chose jugée n'existe que pour le dispositif du jugement. (Dr. Rom., tome 6, p. 357.)

a Page 72, this volume.

It will be seen that the statement made by Savigny was not a pronouncement of his own ideas, as would be implied from the reading of the Mexican answer, but a deduction from the writings of others of their opinion.

With this statement as the foundation for his discussion, Savigny undertakes to disentangle what he denominates "the confused and erroneous ideas" entertained by the partisans of the doctrine cited for the purpose of discovering its foundation. In the course of his interesting and instructive discussion he arrives at the logical and impregnable position that

Les éléments du jugement ont l'autorité de la chose jugée (p. 365).

Further pursuing the subject, he groups the "motifs" into two classes; those which are objective, or which constitute the elements necessary to be found before any judgment may be given, and those which are subjective, or which influence the mind of the judge to affirm or to deny the existence of these elements (p. 367). Then, stating the principle above given in other words, he declares that

Les motifs objectifs (les éléments) adoptés par le jugé ont l'autorite de la chose jugé; les motifs subjectifs n'ont pas l'autorité de la chose jugée.

With this distinction in mind he finds no difficulty whatsoever in reconciling the divergencies of opinion and explaining the misunderstandings to be found among the various authors.

The conclusion of Savigny is summed up in these words (p. 376):

Les motifs (meaning of the word being as above explained by him) font partie intégrante du jugement, et l'autorité de la chose jugée a pour limites le contenu du jugement y compris ses motifs.

He further comments:

Ce principe important, conforme à la mission du jugé, a été formellement reconnu par le droit romain et appliqué dans toute son extension.

Further pursuing the citations made by Sr. Mariscal from Savigny, we beg to call attention to the fact that on page 25" (Exhibit A), hereto attached, of the answer of Mexico the following language is used:

In the particular case (which is ours) of a demand for interests founded on a judgment which declared them due, after having heard the pleas of the defendant against the right that claimed the capital or rent, Savigny is of opinion that this right has in its favor the force of res judicata; but, at the same time, he observes that Buchka solves the question in the contrary sense in accordance with Roman law; that, in the same sense, the Prussian tribunals have solved it for the reason that a recognition of a right in the reasons (motifs) of a decision does not appertain in fact to the judgment, whose decisory part alone constitutes res judicata; and Savigny adds:

"We have not on this point the decision of Roman law, and the texts that are usually cited are foreign to the matter. (D. R., sec. 294; Nos. 3 and 4, note (r) of No. 7, and sec. 299, No. 4, T. 6, pp. 397, 401, 446.)"

In the above summary and citation occur two errors, to us entirely inexplicable. To understand their nature, let us cite the exact language used by Savigny, taking it from pages 458 and 459:

Il en est de même quand le défendeur a été condamné à payer les intérêts d'une créance ou les arrérages d'une rente après avoir contesté le droit du demandeur au capital, ou à la rente; ce droit se trouve investi de l'autorité de la chose jugée, par la condamnation. (q).

(q) Ici encore Buchka a bien résolu la question pour le droit actuel, mais pour le droit romain il la résout à tort en sens inverse. Vol. I, p. 307, 308; Vol. II, pp. 184, 191. J'ai déjà signalé, sec. 294, notes (n) et (r), quelques décisions erronées des tribunaux prussiens sur cette question.

Nous n'avons pas sur ce point de décision du droit romain, et les textes que l'on a coutume de citer sont étrangers à la matière.

a Page 73, this volume.

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 contract— and 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 disposit 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 Šr. 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