Mr. Sherman to Mr. Clayton.

No. 169.]

Sir: I have to acknowledge the receipt of your dispatch No. 152, of the 21st instant, from which it appears that the Mexican Government holds that the award of the Mixed Commission of 1868, in the matter of the claim of the Roman Catholic Church of Upper California, has no bearing on the subject of the interest due since February, 1869; that the church should first exhaust its judicial remedies and that diplomatic intervention at the present time was regarded as premature.

I have given a copy of your dispatch to the honorables Stephen M. White, a Senator of the United States from California, and William M. Stewart, a Senator from Nevada. I have also furnished a copy to Mr. John T. Doyle, of Menlo Park, San Francisco, Cal.

For your information and files, I inclose a copy of a letter from Mr. Doyle, dated the 2d of October, giving a concrete statement of the circumstances and particulars of the claim. Respectfully, yours,

John Sherman.

Mr. Doyle to State Department.

Memorandum for Hon. Assistant Secretary of State, as to the claim of the Roman Catholic Church of California against the Republic of Mexico, for arrears of interest, or theproceeds of the Pious Fund of California.

The Pious Fund of California originated in 1697, in money contributed by charitable people, to enable Fathers Salvatierra, Ugarte, and Piccolo to commence their missionary efforts in California, for which they had just secured permission from the Crown by the royal çedula of February 5 of that year. Besides collecting money for immediate expenses, it was determined to form a fund for the permanent support of the missions to be established, and the interest at 5 per cent per annum, of $10,000 being deemed adequate for the support of each mission, invitations were extended to the piously disposed to make contributions of that sum, or multiples of it, for the purpose, the contributors being accorded the privilege of naming the missions founded by their contributions. Mention of the first contributors and their donations and other early history of the fund will be found in the second volume of Venegas “Noticia de la California, y de su Conquista Espiritual y Temporal,” etc., Madrid, 1757.

This work is the oldest historical account we have of the colonization of California. It was compiled from the original papers of Venegas, in the Spanish-Mexican archives, by Andres Marc Buriel and is regarded by historical students as a work of highest authority. It is usually cited as “Venegas California.” A list of the contributors and missions founded down to 1731 is also given in a little work entitled “Noticia de la Provincia de Californias en tres Cartas de un Sacerdote Religioso, hijo del real Convento de Valencia, a un Amigo suyo.” (Valencia, 1794. Carta 2da, p. 48.) At that time the contributions amounted to $120,000. In 1735, the Marquis de Villabuenta and his wife, the Marchioness of Torres de rada, made a munificent donation of estates and property valued, even in those days, at $408,000, and the purposes and objects of the trust are fully expressed in their deed of the property, a copy of which duly certified by the notary, in Mexico, in whose archives it remains, was filed with the Mixed Commission and forms part of its record. We have also historical evidence of a bequest of sums amounting to $120,000 by the Duchess of Gandia, and of other very large amounts from Senora Josepha Paula de Arguelles, a wealthy lady of Guadalarcara, made in 1765. These important sums, together with many minor ones and the accumulation of revenues of the property in which the fund was invested, raised its capital to over $2,000,000. It attained as much national [Page 745] importance in its day as the Smithsonian bequest to the United States has in our times, and its administration was regarded as a subject of public concern.

The Society of Jesus, which down to that time had been its trustee, was, with all its members, expelled from the Spanish dominions by the Pragmatic sanction of February 27, 1767, which was put in force in California in the year following. In virtue of this decree of expulsion, all property possessed by the order was seized into the hands of the Crown. Such as was private property, as colleges, noviciates, casas de recreo, etc., was confiscated and vested in the Crown. Whatever was held in trust for specific purposes was accepted by the monarch, distinctly cum onere, and the trust character of the estate acknowledged. Among the latter was the Pious Fund of California, which was thereafter administered and its revenues applied to their appropriate purposes through the instrumentality of a commission appointed by the royal authority for the purpose. Its magnitude and importance were such that it forms the subject of a special notice in the Pandectas Hispano-Mexicanas (vol. 2, pp. 150,172, et seq.) as one of the “ramos ajenos de la corona,” or outside branches of the treasury, in which, although administered by the Crown, it has no proprietary interest.

On the accomplishment of Mexican independence the property of the Pious Fund which was all within the limits of the Republic was transferred with the rest of the possessions of the Crown to the Republic. The new Government loyally acknowledged the trust character of the estate, and constituted a junta directiva for its management. The missions of California had meantime been pushed up the coast as far as Sonoma by the efforts of the Franciscan Order, which had succeeded to the Jesuits in Upper California, and had founded there the missions of—

Founded in— Founded in—
San Diego 1769 La Purissima 1787
El Carmelo 1770 La Soledad 1791
San Antonio 1771 Santa Cruz 1791
San Fernando 1771 San Jose 1797
San Gabriel 1771 San Juan Bautista 1797
San Luis Obisno 1772 San Miguel 1797
San Francisco de Assis 1776 San Luis Rev 1798
San Juan Capistrano 1776 Santa Ynez 1802
Santa Clara 1777 San Rafeal 1817
San Buenaventura 1782 San Francisco Solano 1823
Santa Barbara 1786

All of which were in existence at the time of the annexation of California to the United States. The organization of the church had meantime undergone a change, naturally resulting from the growth of civilized population, bringing with it private property and social institutions. By an act of the Mexican Congress of September 19, 1836, the Holy See was invited and urged to erect the provinces of Upper and Lower California into an episcopal diocese and to put them in charge of a bishop to be selected for the purpose, and as one of the inducements to compliance with this request the sixth section of the act mentioned placed in the hands of the new bishop, when chosen, the properties of the Pious Fund, in the following words: Section 6. “The properties of the Pious Fund of California are placed at the disposal of the new bishop and his successors, to be administered by them and applied to their objects and analogous ones, respecting always the wishes of the founders.” The Right Rev. Francisco Garcia Diego, who was at the time president of the missions, was accordingly, at the request of Mexico, appointed and consecrated as bishop of the Californias, Upper and Lower, and established his see at Monterey. The Pious Fund was turned over to him to be administered and applied as above provided.

The bishop’s presence being required in his diocese, the property was managed for him by an agent or apoderado, Don Pedro Ramirez, a resident of the City of Mexico, of high position, eminent probity of character, and capability as a financier. Under his management it remained down to the year 1842, on the 8th of February, in which year General Santa Ana, then dictator of Mexico, under the bases of Tacubaya repealed the sixth section of the act of September 19, 1836, and devolved the administration of the trust estate on the Government; for which purpose an officer of the army, General Valencia, was appointed, the objects and purposes of the donors being, however, distinctly respected. Under this decree the property of the fund was delivered over to the representative of the Government, but in the absence of his principal Don Pedro Ramirez respectfully protested against the breach of contract involved in the seizure, and insisted on delivering the estate accompanied by an “instruccion circunstanciada” or detailed inventory of the property, a copy of which was transmitted to his principal.

[Page 746]

Neither the Spanish nor Mexican Government has been very successful in the administration of trust estates, and within a few months General Santa Ana recognized the error of attempting the task here. It was thereupon determined to sell the properties of the Pious Fund, turn the money into the public treasury, and pay interest on it thereafter in perpetuity. To carry out this purpose the decree of October 24, 1842, was enacted, wherein, after reciting the intent, by that of the preceding February, “to fulfill most faithfully the beneficent objects of the founders, without the least diminution of the funds destined therefor, a result only to be attained by capitalizing the funds and putting them at interest, to avoid expenses of administration, etc.,” it was enacted that all the properties of the fund should be incorporated into the public treasury, the real estate and other properties sold for the capital represented by its income on a basis of 6 per cent per annum, and that the national treasury should thereafter pay interest at that rate on the amount; to which purpose the revenue from tobacco was specially pledged.

The transfer of Upper California to the United States by the treaty of Queretaro worked a change in the civil allegiance of the Church of Upper California to the United States. Mexico thereafter ceased to pay to it its portion of the interest on the Pious Fund, and these arrears were made the subject of a claim by the prelates then representing and governing the Church before the Mixed Commission constituted by the convention of 1868. The Mexican Republic was defended not only by the Hon. Caleb Cushing, whose position at our bar was so eminent, but also by one of its own most distinguished and able lawyers; perhaps the only member of the profession who in all its history acted as judge-advocate of a court-martial which sent an emperor to execution. His previous position in the department of state in Mexico had made Don Manuel Aspiros familiar with all the documentary history of the Pious Fund, and independent of the legal presumption of the truth of all adjudications of a competent tribunal there is the strongest presumption of fact that no possible defense for his client escaped his learning, zeal, and vigilance. I say nothing of the character of the distinguished umpire who decided the case on a disagreement between the Mexican and American commissioners. So far was Sir Edward Thornton from favoring us that he admits in his opinion that his sympathy was with Mexico, and that he was moved by a consideration of “the troubles and difficulties to which Mexico and her Government had been subject to for several years past” to refuse interest on arrears for the principal of which he gave judgment, a tempering of justice with mercy which a legal tribunal would not have granted.

He ascertained the annual interest due to the Church of Upper California under the act of October, 1842, to be $43,080.99, and gave judgment for arrears of twenty-one years, amounting to 904,700 Mexican gold dollars and 79 cents. This included all sums due down to May 30, A. D. 1869, and has been fully paid. We are now claiming the sums accrued since the last-named date, and the case appears strictly analogous to one wherein an annuitant, having filed a bill to enforce payment of his annuity and obtained a decree establishing his right to it and its exact amount, with orders to defendant to pay over a specific sum for arrears down to a particular date, on further default being made, files a supplemental bill to enforce payment of the installments accrued since the original decree. I can discover no difference between the two cases.

Having brought the history of the Pious Fund down to the present day, I feel that I ought not to omit from this memorandum notice of a fact in Mexican history which shows that so far from making here any extraordinary demand we are asking nothing but what Mexico has solemnly recognized as a duty properly demandable from her by a foreign government in a case precisely similar. Briefly told, it is this: The Philippine Islands having been conquered by an expedition from Mexico, were attached to that viceroyalty. The Jesuits had missions in those islands like those of California, and one-half the bequest of Senora Argualles above mentioned went to their support; the other half to those of California. After the establishment and recognition of Mexican independence, Spain demanded this Philippine Island fund from Mexico for the missions within its dominions. The justice of the claim was undeniable, and the properties in which that fund was invested were turned over to the representative of the missions, one Padre Moran. Some portions of the real estate had, however, been sold by the Mexican Government during the troublous times of the revolution and the proceeds used by it. For this an indemnity was demanded by Spain and accorded by Mexico, the amount fixed on being $115,000 for principal and $30,000 for interest thereon, which was agreed to and paid.

The convention is dated November 7, 1844, and its text is to be found in the “Collection de tratados con las Naciones estrangeras, leyes, decretos, y ordenes que forman el derecho Internacional Mexicano,” published in Mexico in 1854, at page 516.

This convention expresses the judgment of Mexico as to what justice and international [Page 747] law required from her in her dealings with subjects of the King of Spain; we ask only the same measure of justice for citizens of the United States, in a case absolutely parallel.

John T. Doyle,
Attorney and Counsel for the Prelates.