On the one hand, we have the treaty providing for the adjustment of all "claims and complaints" of our citizens; on the other, the argument of the agent of Mexico, which asserts that the larger and more important portion of those claims is not within the protection of that treaty.

His assertion, that a claimant, though within the description of the treaty, has no standing before the Commission, unless he has previously exhausted judicial remedies in the courts of Mexico, if sustained, interpolates into the treaty an important and distinct provision, unwarranted either by its letter or spirit. So fraudulent a result can not be accomplished.

So far from holding that prerequisite necessary to give jurisdiction, the very serious question would be presented, Whether one who had voluntarily resorted to the courts of Mexico, and had judgment against him, could come before this Commission. It could be said to him with great reason, You might have intrusted your claim to your own government, and it would have obtained redress. But you have chosen to control it yourself; you have taken your chance, by submitting yourself to the jurisdiction of the courts, and their determination against you is conclusive.

It is sufficient, however, to say, that if so important a qualification as to the jurisdiction, as is now urged on behalf of Mexico, was contemplated by her in the negotiation of the treaty, good faith required that it should have been stated in unambiguous terms. Such a qualification is repudiated by the United States, and we know of no rule of interpretation which would justify its adoption.

We add to this, that the objection now made has heretofore been considered, and has been expressly overruled by the umpire in the case of Isaac Moses, as published at a meeting of the Commissioners, 24 April, 1871. In overruling the objection, he says:

"There is no reason why claimant, a citizen of the United States, should not present himself before this Commission, and avail himself of the convention which he thinks, for his good fortune, has come to be appointed by agreement between the two nations."

We believe this to be a full and satisfactory answer to the argument made on the motion to dismiss.

Certainly a more creditable claim could not be presented for consideration. A fund contributed by Catholics, in various countries, for converting to the Catholic faith the Indians of California, is taken possession of by the Mexican government and used for its own purposes, on the understanding that it would make an annual payment as a substitute therefor. The work to which this fund was dedicated by the donors remains uncompleted; there are Indians yet in California not gathered into the bosom of the church. The proper representatives of that church now call upon the Mexican government for those annual payments, that they may carry out the benevolent purpose of those who contributed of their private property the means for its accomplishment; and we say, using the mildest terms, that it does not become the integrity or dignity of Mexico, that she should seek, through legal subtleties, to void the fulfillment of an obligation incurred under such circumstances.

WASHINGTON, January 1, 1872.

P. PHILLIPS,
NATHANIEL WILSON,
Solicitors for Petitioners.

The motion, filed by the Mexican Republic, to dismiss this claim, is analogous to that made in a common law court, to nonsuit a plaintiff on the opening of his counsel. It assumes that all the matters alleged are proved, and insists that on the facts as stated no cause of action is shown. In such cases it is always competent to supplement the statement by the addition of any further facts to be introduced in evidence, or the further development in detail of those already stated.

We shall assume the same right in the present case by a more full and detailed exposition of matters, which are but briefly sketched in the short and imperfect history of the Pious Fund of California, annexed to our memorial.

In the argument in support of the motion to dismiss, stress is laid on the assumed nature of the trust for which the Pious Fund was founded, and it is desirable that the Commission should have a clear view of the exact terms of that trust. The earliest document at hand wherein they are expressed being the deed of the Marquis of Villa Puente and his wife of June 8th, 1735, I submit herewith a printed copy of that instrument accompanied by a translation.

It will be seen that this document, after reciting the circumstances and motives of the donors, and their determination to donate to the missions of California, of the Society of Jesus, the estates and property in question, (p. 3,) proceeds to grant and declare that they "give to the missions of the Society of Jesus, already founded and which may hereafter be founded in the Californias," the estates enumerated, being over 450,000 acres of land with extensive improvements and large amounts of cattle, and other personal property, valued in all at over $400,000. The trust attached to the donation is "to the said missions founded and which hereafter may be founded in the Californias, as well for the maintenance of the 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," and that if hereafter the existing missions become self-supporting, "the rents and products of said estates shall be applied to new missions to be established hereafter in the unexplored parts of the said Californias; and that even in case of all California being civilized and couverted, the profits, etc., shall be applied to the necessities of said missions and their support." (See orig. pp. 5, 6. Trans. pp. 6, 7.)

On the face of this deed it needs no argument to show that the Jesuits were mere trustees and administrators of the funds and property donated; true, they were trustees in whom the donors reposed unbounded confidence, and to whom they meant to entrust the largest powers and discretion; but it is incontestible that the missions of California founded, and which thereafter might be founded were the bene

ficiaries or cestuis que trust under the deed, and entitled to the beneficial use and enjoyment of the funds. A change of the trustees by death, dissolution, forfeiture, or the like would work no change in the beneficial ownership of the cestuis que trust. This is a principle of universal law, indeed of common honesty, and it has never yet been denied by either Spain or Mexico that it was applicable to this property, and to the trust attached to it. On the contrary, while the Spanish Crown, on the expulsion of the Jesuits, took to itself the property of the order, it distinctly recognized the trust character of the Pious Fund, and administered it as a trustee, succeeding to the estate, duties and powers of the original donees, the Jesuits, down to the cessation of Spanish rule in Mexico. Mexico succeeding to the sovereignty of Spain over its own territory, succeeded to the property and the trust, and continued the administration in the same way, as trustees only.

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These historical facts are abundantly evident in all the proceedings of both powers, and will be corroborated in all the evidence. In direct support of it, therefore, I shall here cite only the memoir on the public treasury contained in the Pandectas Hispano-Mexicanas (vol. 2, p. 150 et seq.) and art. 1, sec. 6, of the Act of the Mexican Congress of May 25, 1832. Arrellaga vol. 1832-33, p. 114.). The latter of these enacts, que sus productos se depositaran en la casa de moneda de la ciudad federal, para destinarlos única y precisamente a las Misiones de Californias." The former after enumerating and classifying the different branches of the revenue, the various duties, imposts and taxes, and their mode of collection and application, the portions remitted to the mother country, and those devoted to the uses of the Viceroyalty, proceeds to a fourth class headed "Ramos Ajenos," or outside departments. Branches in which, though administered by the Crown, it has no interest. Concerning these, the explanation in the text is as follows:

a

"I. Por la proteccion que la benignidad del Rey dispensa á varios ramos municipales, piadosos y particulares de estos dominios, entran sus productos en las reales tesorerias,

CON RESPONSABILIDAD DE LOS MINISTROS DE ELLAS PARA INVERTIRLOS DEBIDAMENTE EN

EL FIN DE SUS DESTINOS, sin los estravios que pudieran padecer en depósitos ménos seguros У autorizados.

II. De estos ramos, AUNQUE AGENOS DE LA CORONA, se hablará por último, para dar idea del total manejo de las tesorerias del real erario.”

Among these ramos ajenos thus defined, is enumerated, p. 172, "Fondo Piadoso de California," under which head is given a brief account of the origin of the fund, (slightly inaccurate in detail,) and an exhibit of its condition, November 16, 1792, showing a total of money and property then on hand of $828,936.08. A statement of its income and outgo for the past five years follows, showing an annual balance or surplus of receipts over expenditures of $8,477.30, and the text then proceeds:

Este sobrante anual debe aplicarse á la fundacion de un colegio que sirva de descanso a los misioneros, segun la voluntad del citado marqués. Se hallaban ya juntos 100.000 pesos; pero fué preciso invertirlos en varias obras de la hacienda de Arroyosarco.

That this recognition by the Crown of the trust character of the estate was not mere matter of favor, due to the piety of the monarch or his good will, but was such a result as could not be denied under “Ajeno, lo que es de otro," Salva Dict. in verbo.

Spanish law, and was promptly claimed as a right, appears by the informe on the state of the missions of the peninsula, furnished by Father Palou to the Father Guardian of the Franciscans, contained in the "documentos, para la historia de Mexico, 4a serie," vol. VI., pp. 137-179, already cited.

This latter document has peculiar value from its date and the circumstances under which it originated. The order for the expulsion of the Jesuits from the Spanish dominions was only put in force in California in February, 1768. The missions were thereafter taken possession of by the Franciscans, who supplied the places of the expelled missionaries, as soon after their departure, and as fast as the suddenness of the call, the remoteness of the field and the difficulties of the situation permitted. No communication having been allowed between the departing Jesuits and their successors in the missions, the latter were comparatively uninformed about many matters affecting the missions confided to them-had no previous correspondencenothing in their own archives to inform them, and had to grope their way for a time. After the new missionaries had become settled in their posts, and the enterprise again began to take some orderly shape, Father Raphael Verger, Guardian (or Superior) of the Franciscans, addressed to Father Palou, President of the Missions, a letter requesting particular and minute information concerning them, putting many questions to direct the attention of his correspondent to points on which information was specially desired. (Documentos, etc., supra, vol. VI., p. 136.) This letter bears date June 1st, 1771. In reply to it Father Palou, under date of February 12, 1772, encloses a detailed "informe" of the condition of each mission, and sets forth certain necessities common to all of them, and then after urging the sending. of various succors, he adds (p. 175): all this can be done without calling on the royal treasury for a cent, for there are good estates for the purpose, which are the property of, and belong to these missions. I have found an unsigned paper which gives an account of these estates, which for your convenient use I copy and insert herewith: without actual knowledge of the authorship of said paper, I have reason to attribute it to the commissioners who were in the College of St. Andrew in your city, at the time of the expulsion of the missionary fathers, and in that place will be found the papers giving a complete account of them, for there was the general agency of the missions." He then copies the paper referred to, which is not only unsigned, but apparently incomplete, but wherein is set down a resumé of the financial resources of the missions. It enumerated donations of money amounting in all to $179,000, whereof $62,000 is credited as the sum, down to that date realized, from the Duchess of Gandia's bequest, thus corroborating Clavigero's statement. It also gives the funds and effects on hand at the time of the expulsion, making a second total of $199,033, and a list of the loans or investments belonging to the fund, footing up $129,600. And after resuming:

it continues "in addition to these capitals are the estates of Ybarra, the administrator whereof states, that in ordinary years they produce

an income of $20,000, clear of all expenses, to which must be added the income of the Haciendas of Arroyo Sarco."

Commenting on this paper, Father Palou concludes that at the expulsion of the Jesuits, the property of the missions consisted only of the above mentioned estates of Ybarra" and "Arroyo Sarco", (the former the gift of the Marquis of Villapuente in the deed above referred to, the latter purchased with the funds of the missions as related by Venegas, in his history Part 2, Sec. XI,) and the "existencias" and "prestamos" above enumerated, the latter two amounting together to $325,633.0.1, and he adds, "from these large sums and the income of the said estates do see if there cannot be furnished annually some assistance in the way of clothing for these poor Indians, not only the present converts, but those yet to be reduced, living northward in California as far up as Monterey, that they may thus be attracted towards our holy Catholic faith, which was the object of the contributors."

In reply to any doubt that may be suggested, of the identity of the funds here spoken of with the Pious Fund of California, as well as in further elucidation of the beneficial ownership of the fund, we refer to the document entitled "Reflexion sobre el Fondo Piadoso de la misiones," by Father Palou, to be found at p. 599, etc., of the Documentos, vol. VI above cited. This paper is undated, but from internal evidence, must have been written shortly after July 19, 1773, since it comments on a report of Don Fernando Mangino, director of the fund bearing that date. It compares the report of the director with the unsigned paper above referred to, found by him in one of the Missions of California, and suggests the necessary explanations to reconcile the apparent discrepancies between them; concluding "with these explanations, it seems to me that the unsigned paper aforesaid and the report of the director are in accordance with one another."

Some of the explanations suggested by Father Palou, indicate that the royal officers had made use of the goods of the Pious Fund, found in the Missions, to pay the soldiers with, and the like, so that the crown became indebted therefor to the Pious Fund. This indebtedness was promptly reclaimed by the Franciscan Fathers, then in charge of the missions of Upper California. A "representacion" from the President of the missions, a reply from the "Fiscal" an "informe del director general de temporalidades y fondo piadoso", and other lengthy documents in reference to the whole subject were laid before "a junta de Guerra y real hacienda", summoned in Mexico by Bucareli, the Viceroy, July 8, 1773, the text of whose determination is given in the same volume, last quoted, at pp. 589 to 594. Annexed to it is the Viceregal decree of July 29, 1773. These papers clearly show that the Pious Fund--the same of which we have been speaking-derived originally from the contributions of various individuals, confided to and administered by the Jesuits; by them invested in the purchase of the Arroyo Sarco, and on their expulsion devolved to the crown, was then managed and administered as a trust estate, entirely distinct from the royal treasury, by an officer termed "Director General de los fondos piadosos de la California", and that the Missions, both of Upper and Lower California-the latter then in charge of the Dominican friars, the former of the Franciscans were recognized as the beneficiaries of the trust.

In this connection too, I direct attention to the Membrete of the