FP انا BEFORE THE PERMANENT COURT OF ARBITRATION UNDER THE HAGUE, CONVENTION OF 1899. A Ac THE CASE OF THE PIOUS FUND OF THE CALIFORNIAS. UNITED STATES OF AMERICA vs. REPUBLIC OF MEXICO. REPLICATION OF THE UNITED STATES OF AMERICA ENGLISH TRANSLATION OF ANSWER, ORIGINAL AND TRANSLATION OF ESCRITURA DE VENTA OF CIENAGA DEL PASTOR, SUMMARY OF SEPTEMBER 15, 1902. proceeds of property sold, the Bishop was not the proper recipient of funds chargeable on account thereof, for a practical interpretation covering the matters reserved in the law of April, 1845, had been given to the law of October, 1842, and further congressional action was needless, and none in fact took place. 11. Even if no perfect right had existed in the Catholic Church of Upper California to administer the Pious Fund of the Californias, or to demand the perpetual interest thereon provided for by the Mexican decrees (a proposition we deny), nevertheless, in the eye of a court of equity dealing with the subject matter upon broad principles of right, the Catholic Church, through its accredited officers, would have been the proper recipient of the interest upon the fund. And this equitable, and, as we contend legal, right also, was conclusively recognized by the Mexican Government, as has been fully discussed in the brief of the Agent and Counsel of the United States, pages 55 and 56. For further considerations relative to the question of legal right, we also refer to the argument of Messrs. Stewart and Kappler. 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 foot-note 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, pages 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 Mssrs. Ralston and Siddons (Diplomatic Correspondence, pages 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". Having therefore abandoned Laurent, he now discusses Savigny, and in the translation of the answer hereto attached (page 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. hesitate to attribute to him want of care in his reading of Savigny, but the exact language of that author is as follows: We "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, page 357.) 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 the 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." (Page 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 (page 367). Then, stating the principle above given in other words, he declares that "Les motifs objectifs (les éléments) adoptés par le juge ont l'autorité 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, (page 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 juge, a été formellement reconnu par le droit romain et appliqué dans toute son extension." Further persuing 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. § 294. Numbers 3 and 4, Note (r) of No. 7, and Section 299, No. 4, T. 6, pages 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, p. 184, 191. J'ai déjà signalé, § 291, 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." 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 nor 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 (pages 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." |