The "heritable property, rural and urban, moneys due to assets of, and other properties, of the fund," were incorporated into the National Treasury. (Decree October 24th, 1842, Art. I.)

The Treasury Department was to proceed to sell the heritable and other properties of the fund, for the sums represented by their income, capitalized as the basis of six per cent. per annum, and the public treasury acknowledged an indebtedness of six per cent. per annum as the total proceeds of the sales (Id., Art. II.)

The effect of these two sections was simply to take the whole property into the hands of the State at a fixed valuation (capitalizing income at 6 per cent. per annum), the Government agreeing to pay therefor, thenceforth, at an interest of six per cent. per annum on that capital.

I have, heretofore, presented the figures as furnished by Ramirez's instruccion, (bound vol., p. 197), omitting however, from the liabilities the claim of Sr. Jauregui, because it was disputed, and we have no evidence of its ultimate fate. The figures thus arrayed showed the capital of the fund when delivered over to Mexico, to be $1,698,745. The learned Commissioner for the United States, is, however, of opinion that Senor Jauregui's claim should be assumed to be valid, and as the hacienda of Cienegadel Pastor was attached to answer it, he omits that estate from the assets, by which, and some minor allowances, he fixes the capital at $1,436,033. Whichever sum the learned Umpire shall determine to be correct, the fund is entitled to interest on at 6 per cent. per annum, from October 24th 1842, payable annually.

The first instalment which came due after the ratification of the treaty of Querétaro, which changed the political status of the Church of Upper California, and gave it American citizenship, was on October 24, 1848. So that when the present claim was presented in June, 1870, 21 annual instalments were due.

VI. With respect to the division of this income, between the two Californias, the views presented by the learned Commissioner of the United States, (so totally at variance with those which at first examination seemed to me correct) have led me, on further reflection, to consider that as the income of the fund was always appropriated equally to the different Missions, perhaps the most equitable apportionment between the two churches, would be in proportion to the number of Missions maintained by each at the time of the cession; there were 21 in Upper and 13 in Lower California. A division in this proportion would give to the claimants of the income.

Such

As the instalments of interest should have been paid annually, on the 24th of October, in each year, I also submit that each one should draw simple interest at 6 per cent. from the time it became due. would be the rule as between private parties." San Francisco, July 12, 1875.

Respectfully submitted.

JOHN T. DOYLE,

of Counsel for the Claimants.

J. HUBLEY ASHTON.

Greenleaf vs. Kellogg, 2 Mass. Rep. p. 568; Cattlin vs. Lyman, 16 Vermont Rep. p. 46; Stewart vs. Martin 2 Watts (Pa.), Rep 200 (203).

IN THE MIXED COMMISSON ON AMERICAN AND MEXICAN CLAIMS. BEFORE THE UMPIRE. No. 493.-THE R. C. ARCHBISHOP AND BISHOPS OF CALIFORNIA, JOSEPH S. ALEMANY ET ALS. Vs. MEXICO. ARGUMENT FOR THE CLAIMANTS.-P. PHILLIPS, NATH. WILSON, OF COUNCIL.

(Copy.)

In the Mixed Commission on American and Mexican Claims.-Before

the Umpire.

BEFORE THE UMPIRE.

No. 493.

The R. C. Archbishop and Bishops of California, Joseph S. Alemany

et als.

This claim is for indemnity for the neglect and refusal of Mexico to pay certain sums of money which, it is alleged, became due and payable by reason of public acts of the authorities of Mexico, and especially by and in pursuance of the decree of Santa Anna, the Provisional President of the Republic of Mexico, dated October 24th, 1842. The decree is as follows:

gastos de administracion y cualesquiera otros que puedan sobrevenir: usando de las facultades que me concede la séptima de las bases acordadas en Tacubaya y sancionadas por la nacion, he tenido a bien decretar lo siguiente.

Art. 1°. Las fincas rústicas y urbanas, los créditos activos y demas bienes pertenecientes al fondo piadoso de Californias, quedan incorporados al erario nacional.

20. Se procederá por el ministerio de hacienda a la venta de las fincas y demas bienes pertenecientes al fondo piadoso de Californias, por el capital que representen al 6 por 100 de sus productos anuales, y la hacienda pública reconocerá al rédito del mismo 6 por 100 el total producido de estas enagenaciones.

3°. La renta del tobaco queda hipotecada especialmente al pago de los réditos correspondientes al capital del referido fondo de Californias, y la direccion de ramo entregará las cantidades necesarias para cumplir los objetos a que está destinado el mismo fondo, sin deduccion alguna por gastos de administracion ni otro alguno.

Portanto, mando se imprima, publique, circule y se le dé el debido cumplimiento. (Coleccion de leyes y decretos. Julio de 1842 a Junio de 1843, page 150.)

2. The Minister of the Treasury will proceed to sell the real estate and other property belonging to the Pious Fund of the Californias for the capital represented by their annual product at six per cent. per annum, and the public treasury will acknowledge an indebtedness of six per cent. per annum on the total proceeds of the sales.

3. The revenue from tobacco is specially pledged for the payment of the income corresponding to the capital of the said fund of the Californias, and the department in charge thereof will pay over the sums necessary to carry on the objects to which said fund is destined without any deduction for costs whether of administration or otherwise. Whereof, &c.

The memorialists are the Roman Catholic Archbishop of San Francisco, the Roman Catholic Bishop of Monterey, the Roman Catholic Bishop of Gross Valley, corporations sole, incorporated under and in pursuance of a statute of the State of California. They are the lawful constituted and acting chief authorities of the Roman Catholic Church of the State of California, which is the same Catholic Church which existed in Upper California at and prior to its cession to the United States; and they present this claim for and on behalf of the Roman Catholic Church of the State of California and its clergy, laity and all persons actually or potentially within its fold and entitled to its ministration, and all others beneficially interested in the trust estate." (Memorial, page 3.)

The claim presented is, therefore, within the jurisdiction of the Commission under the convention of 1868 as a claim on the part of "corporations, companies, or private individuals, citizens of the United States."

The specific demand of the memorialists is for their just and proper share or proportion of the moneys that became due from Mexico, in pursuance of the decree cited, in October, 1849, and that became due on each successive year to and including the year 1868. Interest is also asked on these several sums from the time they became payable.

II.

There is no suggestion or plea anywhere made on behalf of Mexico that the Mexican Government has at any time or in any way performed this promise, to pay over the sums necessary to carry on the objects to which said fund is destined."

On the contrary, the defence now interposed is, that even if the non-execution of the law be admitted, the action of Mexico in the premises cannot be made the subject of an international reclamation, because such action or non-action rested in the sovereign power and will of Mexico without responsibility to any authority or tribunal.

It is also urged that in no event can the Mexican Government be held accountable to the claimants in this case for any disposition she may have made or refused to make of the property which has been received.

Support for this defence is sought primarily in definitions and explanations of the fund, and in a new nomenclature for the motives of its founders. The "resources" which have heretofore been known as the Pious Fund of the Californias are said to be "national and strictly Mexican in their character," and it is insisted that when they came into the possession of Mexico they became national property, subject absolutely to the control of the Government of Mexico, and applicable generally to public purposes as other moneys in the public treasury are applicable. The main proposition in which the learned Commissioner for Mexico states his views of the case, and on which he bases his adverse decision, are the following:

"It is necessary to repeat that the undertaking of the first missionaries in California was more for the Government than the Church; that the persons of whom donations were obtained made them for establishments already founded for the principal and known purposes of continuing and consolidating the Spanish conquests in the northwestern parts of Mexico".

See printed opinion of Commissioner, p. 8.

"The logical and legal starting point from which to appreciate the rights alleged by these claimants is the condition of things at the time when the treaty of Guadalupe was concluded. That situation implied a supreme power greater as to the administration and investment of funds than that which the Jesuits had exercised. The Mexican Government always showed great respect towards the will of those who bequeathed property for the reduction of the natives in the western part of Mexico, and there is no reason why the said Government, placed as it is in the same place which the first missionaries occupied, could not claim with the same right that it is exempt, in conformity with the will of the donors, from the obligation of giving account in regard to the administration and investment of the funds to which the present case refers."-(Ibid., p. 9.)

'Especially after the expulsion and extinction of the Society of Jesus, the Government of Mexico had to substitute itself in the place of that society and to continue to act in the matter with such fullness of authority as the missionaries could never have. The Government not only withdrew the faculty which the Jesuits had received from the principal contributions to the fund of California, to administer and invest funds without giving account, but it added to that faculty of private origin those which were inherent in the public power, either by the virtue of the eminent domain, by the character of the institution, or by the part which in regard to the latter the temporal Government had always exercised."-(Ibid., p. 18.)

"When the Government of Mexico ordered the alienation of the property in which that fund consisted and whose value and products were diminishing year after year; when it incorporated the fund in the national treasury; when it assigned an interest guaranteed by a public revenue, it did not intend to serve, nor did it serve in fact, but to national and political objects, with which were combined in a second degree the civilization and conversion of the natives.”—(Ibid., p. 23.)

These conclusions are enforced and defended by the learned Commissioner by a great variety of ingenious arguments and illustrations, which have been in part heretofore noticed in the brief filed by Mr. Doyle, and which will doubtless receive due consideration in the brief which Mr. Doyle is now preparing, and which we can have no opportunity to see before it is ready to be filed.

27629-02-37

Appreciating the superior learning of Mr. Doyle and of his associate, the Hon. Eugene Casserly, in all the matters, historical and ecclesiastical, pertaining to this case, and wishing to avoid the danger of useless repetitions, we refrain from discussing the first position taken by the learned Commissioner and coutent ourselves with a brief reference to those facts which are made the most conspicuous by the proofs and by the public history of Mexico, and which are wholly at variance with and fatal to the assumptions on which his arguments proceed.

1st. The real intentions of the persons in whose gifts the Pious Fund of the Californias had its origin are best shown by the declarations made by them in their instruments of donation. There are three such instruments referred to in the proofs and arguments, and their contents show in the plainest and most unambiguous way that the objects of the donors were religious and not secular, and that their sole motive, so far as that motive can be ascertained from the words they employed, was the conversion of the heathen to the Catholic faith, and not the continuing and consolidating the Spanish conquest in the northern part of Mexico.

The deed of gift granted in 1735 by the Marchioness de les Torres de Rada and the Marquis de Villapuente conveyed the estate therein described, "to the missions of the Society of Jesus founded, and which in after times the said society may found, in said Californias;"

"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 religious, 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 custom 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 estate shall be applied to new missions to be established hereafter in the unexplored parts of 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 abandoned 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, so that no judge, ecclesiastical or secular, shall exercise any control thereon, or intervene in or about the same; and all such rents and profits shall be applied to the purposes and objects herein specified, i. e., the propagation of our holy catholic faith.”

(See authenticated copy of instrument numbered 20 in list of papers filed, and translation appended to argument of Mr. Doyle.)

The will of Dona Josepha Paula Arguellas, executed in 1765, bequeathed her estate in part "to the Jesuits of this kingdom in support of the apostolic missionaries engaged in the conversion of the infidels in this kingdom." This will was contested in the courts of Mexico. The "audiencia," on the 4th of June, 1783, in its sentence of review, held as to the three fourths of the estate, that the missions took under the will, and declared that said three quarters vested in the