United States and Mexico in 1846, which was terminated by the treaty of Guadalupe Hidalgo, bearing date February 2nd, 1848, and Upper California, being all the Territory originally claimed by Spain, and after its independence, by Mexico, north of the Gila River and of a line from the mouth of said river to the Pacific Ocean, at a point one league south of the Bay of San Diego, was ceded by Mexico to the United States in consideration of fifteen million dollars, and other considerations, amounting to several millions more. The events, of which the above is a brief synopsis, are more fully related in the "Brief History of the Pious Fund of California," and amply corroborated by printed extracts from various historical works and public documents which form a part of the record of the former arbitration, to be presently referred to. Hence they are here related very succinctly. V. During the twenty years immediately succeeding the treaty of Guadalupe Hidalgo many claims arose, made by citizens of each republic against the government of the other for damages, resulting from injuries of various sorts, and a convention for the settlement of all these various claims, was concluded between the two nations, bearing date July 4th, 1868 (to which as a matter of public international law reference is made without setting forth its terms), under which an international tribunal was constituted for the determination of all such claims, and their payment was provided for. The said tribunal opened its sessions in the City of Washington on the 31st of July, 1869. To this tribunal the Roman Catholic Archbishop of San Francisco and the Roman Catholic Bishop of Monterey, then in office, as successors of the Right Reverend Francisco Garcia Diego, Bishop of the Californias, presented a claim on behalf of the Roman Catholic Church aforesaid for so much of the interest on the capital of the Pious Fund accrued since the date of the treaty of Guadalupe Hidalgo, viz: the 2nd of February, 1848, as properly belonged to Upper California. The time for making awards under the said Convention of 1868 was originally limited to two years and six months from the first meeting of the Commission, viz: July 31st, 1869. But such time was enlarged by supplementary conventions between the two nations, dated April 19, 1871; November 27, 1872, and November 20, 1874; so that it finally expired on January. 31, 1876, with six additional months thereafter, within which the Umpire was empowered to make his awards, in cases where the Commissioners had differed. In the meantime, after a motion by the Counsel of Mexico to dismiss the aforesaid claim of the said Archbishop and Bishop on the ground that the Commission had not jurisdiction of the case, proofs were offered and argument on the merits of the claim suggested by each party, and on the 19th of May, 1875, the Mexican and American Commissioners filed their opinions in the case, whereby it appeared that they differed totally; the American Commissioner being of opinion that an award should be made in favor of the claimants for one-half of the interest at six per cent. per annum on the capital of the Pious Fund (the amount of which capital he decided to be $1,436,033.00) and the Mexican Commissioner being of opinion that no sum whatever should be awarded them. Thereupon, under the provisions of the said original Convention of July 4th, 1868, and the several conventions supplementary thereto, above mentioned, the said case was referred to Sir Edward Thornton, then Minister Plenipotentiary to the United States Govern ment from the Queen of the United Kingdom of Great Britain and Ireland, who had been chosen and was acting as Umpire in such cases, for his decision. The decision of said Umpire not having been announced within the time allowed therefor by the supplementary convention of November 20th, 1874, to-wit: the 31st of January, 1876, another supplementary convention dated April 29th, 1876, was concluded between the two governments whereby the term within which the Umpire might make an award was further extended to November 20th of that year. VI. On the 29th of November, 1875, the said Umpire signed his decision in favor of the claimants, and said decision became known to the Agent of the Mexican Republic, who, on January 29th, 1876, filed with the said Umpire a petition on behalf of Mexico for rehearing, and on September 19th of the same year presented an extended argument in support thereof. He pointed out an error of one thousand dollars in the addition of the items composing the capital of said Fund, which was rectified by the Umpire on the 18th of November, 1876, and on the same day said Umpire rendered his final award in the case in favor of the claimants, for the sum of $904,070.79 in Mexican Gold coin, being twenty-one years interest at 6 per cent. per annum on one-half of the capital of the said Pious Fund, to-wit: the principal sum of $717,516.50, which award was in due course fully and punctually paid by the said Republic of Mexico in accordance with the terms of the said convention of July 4th, 1868. VII. The said Republic however again defaulted in the payment of the current interest on the said Pious Fund Capital, in consequence whereof and at the instance of the present incumbents (the said Joseph S. Alemany having meantime been translated to another diocese, and afterwards departed this life, and been duly succeeded as Archbishop of San Francisco by the Most Reverend P. W. Riordan; and the said Thadeus Amat having been succeeded by Francis Mora as Bishop of Monterey, who in his turn was also succeeded by the Right Reverend George Montgomery, being the present incumbent of the said diocese of Monterey, and the said Patrick W. Riordan of that of San Francisco), the government of the United States demanded payment thereof from the government of Mexico, which the said government of Mexico refused, and in fact, the annual interest of $43,050.99 remains unpaid for each and every year after the year 1868, down to the present day, the United States on behalf of the said prelates, insisting that the adjudication by the Umpire of the Mixed Commission created by the Convention of July 4th, 1868, above mentioned, establishes conclusively the amount of said annual interest to be the sum of $43,050.99, and the liability of Mexico for the payment thereof in Mexican Gold Coin on the 24th of October of each and every year after 1868 as res judicata, and Mexico denying such liability and the finality and conclusiveness of such judgment. Which question has been by the consent of the high contracting parties, by the protocol dated May 22nd, 1902, referred to this Honourable Court to determine. VIII. SECOND-The said United States insist that, if the said liability and its amount are not deemed by this honorable Court to be conclusively established by the said adjudication made under the Convention of July 4th, 1868, then the indebtedness of Mexico, justly due to the said prelates, on behalf of their church as aforesaid, for the interest on the portion of the said Pious Fund, corresponding to what was formerly known as Upper California, is really a much larger sum than that above demanded. And in support of said last allegation they aver that the following errors and omissions occurred in making said award, occasioned by the ignorance of counsel of material facts relating to the same, and their consequent failure to make proof thereof, and to oversight of the Commissioner and Umpire, as follows, viz.: 1. The claim for the amount received by the Mexican Government from sales, or otherwise from the property donated or bequeathed by Doña Josepha de Arguelles, was stated in the exhibit filed with the Memorial before the former Mixed commission, to amount to the sum of $681,946.00. A portion of this, amounting to $496,291.09, was erroneously claimed, having been already included in the enumeration of the "assets of the pious fund;" in the same exhibit. Of the remaining $185,654.91 thereof, $105,045 was improperly rejected, as will be shown by the evidence. The capital of the Pious Fund should therefore be increased by said last mentioned amount. 2. In making the said award the proceeds of the hacienda called the "Ciénaga del Pastor" were excluded from the computation of the said principal, because the same was stated in the inventory or "instruccion circunstanciada" of Don Pedro Ramirez to be embargoed or attached, and the claimants had no knowledge or means of learning the ultimate results of said attachment or embargo, or the amount realized by Mexico for the said hacienda. The said claimants have since learned and aver that the three-quarters of said hacienda belonging to the Pious Fund, were sold by the Government of Mexico for $213,750, which sum should therefore be added to the capital of the said Pious Fund, in the interest of which they were then and are still entitled to participate. 3. The award or opinion of Commissioner William H. Wadsworth which the Umpire adopted as the basis of his decision in the former arbitration shows that in calculating the amount of the capital of the Pious Fund, he deducted from the amount of the claims against the Mexican Government the sum of $7000, as a bad debt, under the date of October 20th, 1829. This deduction was erroneous, and the adjudged capital of the said fund should be augmented by the said sum, and the income of the fund by the interest thereon amounting to 8420 per annum. The said Commissioner and Umpire designate the said sum as a bad debt, referring to the instruccion circunstanciada of Don Pedro Ramirez, from which the item is taken, but the text of said document shows this to be an error, resulting from a misunderstanding of its language. 4. The claimants are informed and believe and therefore aver, that the Mexican Government borrowed from the Pious Fund, in or about the month of July, 1834, various sums amounting in the whole to $22,763.15, which loans have not, nor have any of them, been repaid, and they therefore claim that the said sum of $22,763.15, which was omitted from the claim made before the Mixed Commission aforesaid. by reason of the ignorance of counsel of the facts, this amount should therefore be added to the aforesaid capital of the Pious Fund. 5. They also show that in the sale of the said hacienda of "Ciénaga del Pastor" was included certain personal property on said hacienda, under the name of "llenos," for the sum of $4,000, three-fourths of which belonged to the said Pious Fund, the capital of which should therefore be further increased by the amount of $3,000. 6. If the adjudication of the tribunal constituted under the Convention of July 4th, 1868, is not deemed conclusive as to the amount due to the claimants on account of the Pious Fund by the Mexican Republic, neither is it conclusive as to the proportion in which the same should be divided between Upper and Lower California, and an equal division between the two former provinces, whatever excuse may have appeared to exist for it in 1875, is at the present day wholly unjust and indeed absurd. The present population of the region, which under the Spanish and Mexican dominion was known as Upper California, as shown by the United States Census of 1900 is 3,000,000 souls and upwards and steadily increasing; the number of priests within its borders performing active missionary duty was then 284. Lower California, on the other hand, has ceased to retain its former importance. Its total population is only a little over 42,000 individuals, as stated in the Statesman's Year Book" on the authority of the Mexican Census of 1895. The number of clergy as well as can be estimated from the Memorial or report of Ulysses Urbano Lascepas, compiled by order of the Mexican government (1859), could not then have exceeded 24. Mexico can, of course, furnish the actual number. An equal division of a fund, for missionary purposes, between two populations so wholly disproportionate as these seems entirely absurd. 66 The United States have reason to believe that the evidence to be adduced before this honorable Court in the course of this arbitration will show other and additional sums due by Mexico, and going to increase the capital of the said Pious Fund in the Public Treasury of Mexico on which interest as aforesaid should be allowed. And the said claimants allege and insist that the true basis of a division of the income of the Pious Fund between Upper and Lower California is in proportion to population which would give to Upper California 85 per cent. and to Lower California 15 per cent. of the whole. CONCLUSION. We propose now to state the capital of the Pious Fund and show the amount due by Mexico under each of the two alternatives above suggested, viz: I. If the amount and rate of division are deemed settled as res judicata; II. In the contrary supposition, viz: that the whole question is open. I. If the amount of the Fund and rate of division between Upper and Lower California are deemed to be established as res judicata the account will stand thus: Principal as shown (after deducting $1,000 for said error in addition). $1, 435, 033. 00 Total in this case (33 installments, at $43,050.99) 717, 516.50 43, 050.99 1, 420, 689. 67 II. If the said amount and rate of division are not deemed fixed as res judicata, the capital of the Pious Fund should be stated as follows: REAL ESTATE. Houses on Vergara street, of annual income, viz: $2,625, belonging to the Pious Fund, which, capitalized at 6%, corresponds to a capital of (Instruccion of Ramirez, page 28}). $43, 750.00 Hacienda "Ciénaga del Pastor," 27 666 of annual income, viz: $12,825 belonging to the Pious Fund, which, capitalized at 6%, represents a capital of (Id., p. 30).. "Llenos" (personality) sold with the same Haciendas "San Augustin de Amoles," "El Custodio,' "San Ignacio del Buey," and "La Baya," annual income of $12,705 belonging to the Pious Fund, which at 6% represents a capital of (Id., pp. 30-31). Hacienda "San Pedro de Ibarra," annual income $2,000, belonging to the Pious Fund, which at 6% represents a capital of (Id., p. 30)........ MORTGAGES. $42,000 on Hacienda "Sta. Lugarda," at 5% (Id., p. 31).. On Hacienda "Arroyozarco," $40,000, at 6%, with arrears of interest amounting to $26,770.75.. On Hacienda "San José Minyo," $3,000, at 5%, with arrears of interest amounting to $2,275 ... OWED BY PUBLIC TREASURY. $20,000 borrowed during Spanish rule with arrears of interest at 5%, $162,618.374 borrowed in 1810 with interest at 6%, in arrears since $7,000 paid on October 20th, 1829, by order of Government for their $22,763.15 advanced Government in 1834 (Id., p. 3) $3,000 advanced to Government to pay for Bulls of Bp. Diego in 1836, no interest mentioned (Id., p. 34). Government Bonds.. Proceeds of the estate of Sra. Arguelles paid into the General February 9th, 1804, there was deposited $18,000, of $200, 606. 64 6, 750.00 30,000.00 October 25th, 1809, there was deposited $25,000, of 11,250.00 9,375.00 $213, 750.00 3,000.00 211, 750.00 33,333.33 42,000.00 66, 770. 75 5, 275.00 49, 166. 63 496, 291.00 369, 143.75 73, 342.50 68, 160.371 7,000.00 22,763. 15 3,000.00 15,973.37 July 16th and 29th, 1812, there was deposited $8,000, May 7th, 1814, there was deposited $28,453.63, of Total. 28, 125.00 3,000.00 7, 125.00 10, 670.00 306, 901.64 |