Learn about the beta

Points submitted by Messrs. Doyle & Doyle, of counsel for the prelates.

(The references, unless otherwise expressed, are to the pages of the printed Transcript.)

The case we present to the court is historical, and carries us back to the close of the seventeenth century, when, all previous attempts to colonize the peninsula of Lower California having failed and been abandoned as impracticable, the Jesuits, encouraged by their success in establishing missions throughout the northern frontier of Mexico, offered the services of their members for the like purpose in California, on condition that they might themselves select the civil and military officers to be employed. This proposal was assented to by the Crown, it being formally stipulated that possession of the country should be taken in the name of the King, and that the royal treasury should not be called on for any of the expense of the enterprise without His Majesty’s express order. The fathers proceeded at once to collect alms (limosnas) for the purpose, and commenced the work. The first mission, that of Our Lady of Loretto, was founded in 1698, and that of San Francisco Xavier, the second, in 1699. These were followed by others founded at intervals down to 1757, when that of San Francisco Borja, the last of those of Lower California, was established. We have no full record or account of the amounts collected in smaller sums, though we know that they must have been considerable, as the historian mentions casually over $17,000 collected in minor sums from a few benefactors in January, 1697. It was, however, considered that the income of $10,000 would be needed for the support of each mission, and charitable persons were asked to contribute for the undertaking that amount or multiples of it. Thus the 13 missions of the peninsula represented a capital of $130,000, contributed by the following persons, viz:

Don Juan Caballero y Ozio. $20,000
Don Nicolas de Arteaga. 10,000
The congregation de los Dolores in Mexico 10,000
The Marquis de Villa-Puente 40,000
Don Luis de Velasco 20,000
Padre Juan Luyando 10,000
Doña Rosa de Peña 10,000
The Duchess de Gandia 10,000
Total 130,000

These sums with the smaller ones above referred to and subsequent accretions obtained the name of the Pious Fund of the Californias, by which name the capital in question has ever since been known.

In 1735 the Marquis de Villa-Puente and his lady, the Marchioness de las Torres de Rada, by a deed of gift inter vivos, donated to the Jesuits, for the missions of California, estates and properties of great extent and value; a copy of the conveyance, certified by the successor of the notary before whom it was executed, forms part of the record [Page 263]of the former arbitration respecting this matter, presently to be mentioned. The value of this contribution was estimated, even at that early day, at over $400,000. Another large contribution came from the will of Doña Josef a Paula de Argüelles, a wealthy lady of Guadalajara, amounting to over $600,000, as nearly as we can ascertain, and still another from the will of the Duchess of Gandia, who having bequeathed large sums to provide annuities for her servants, directed that as the life estates fell in the capitals should be added to the Pious Fund. From this source $62,000 had been realized in 1747, with as much more to come in.

The Jesuits, as is known, were excellent financial managers, always putting that department of their affairs into the hands of the most capable of their members. The Pious Fund was invested by them in productive property, urban and rural, and its revenues well cared for and economized, so that it increased largely in amount and importance.

The pragmatic sanction of 1767 expelling the Jesuit order from all the Spanish dominions was put into effect in California in 1768, arid the missions were turned over to the Franciscans. Afterwards, when those establishments were advanced farther up the coast into Upper California, those of the peninsula were confided to the Dominicans, and those of Upper California to the Franciscans. These friars made their first entrada into the upper province in 1769, when the mission of San Diego was founded, and they continued thereafter to advance the spiritual conquest of the country and established within the limits of the present State of California in all 21 missions, the latest of which was founded in the year 1823. These were maintained out of the income of the Pious Fund.

On the expulsion of the Jesuits from its dominions the Spanish Crown succeeded to the administration of the Pious Fund as trustee, and in like manner Mexico, on achieving her independence, succeeded to the former sovereign; each of them, however, recognized the trust character of the estate and the duty of applying its income to the support of the missions. During the trusteeship of Spain the monarch sometimes borrowed portions of the capital to supply the ripe wants of the viceroyalty, but always inscribed the sums so taken on the register of his probity, and made promise of repayment with interest; and Mexico, among the earliest acts of her independent sovereignty, solemnly recognized the debts of the viceroyalty as due and to be paid by the Mexican nation, which succeeded it, and recognized those debts to the Pious Fund originally of the viceroyalty as due by the Mexican Republic.

The property of the Fund continued to be managed by a junta, or board of public officers, under Spain and Mexico successively, until the year 1836, when it was determined to apply to the Holy See for the establishment of a bishopric in the Californias, and as an inducement to assent to the arrangement the act of the Mexican Congress proposed to commit to the incumbent of the new diocese the management of the Pious Fund. The Right Rev. Francisco Garcia Diego, who had till then been president of the missions, was accordingly raised to the episcopal rank, and fixed his see at Monterey, in Upper California. He continued in the management of the Fund, which he received November 2, 1840 (Transcript, pp. 495, 520), applying its income to the support of the missions, as before, down to February, 1842, when the Mexican Government, by a decree of President Santa Anna, resumed the management of it, and the properties of the Fund, [Page 264]real and personal, were turned over to Gen. Gabriel Valencia, his chief of staff, appointed for the purpose by him, accompanied by a formal inventory, of which a copy is contained in the record of the former arbitration, presently to be referred to. Of the particulars of the rural property delivered to General Valencia we are but imperfectly informed. On October 24, 1842, by another decree of October 24, 1842, the whole property of the Fund was incorporated into the public treasury of Mexico, ordered to be sold, and the Government, always respecting the intentions of the founders, undertook to pay interest on the proceeds at the rate of 6 per cent per annum, to be applied to the missions as before.

Upper California was ceded to the United States by the treaty of Guadalupe Hidalgo, February 2, 1848, the United States paying therefor $18,250,000—$15,000,000 in cash and $3,250,000 by releasing her from demands amounting to that sum, due to American citizens.

After the separation of Upper California from Mexico the latter ceased to make any payments of interest on the Pious Fund to the benefit of the ceded territory, and after vain demand therefor and application to the Government of the United States for its interposition with Mexico to obtain satisfaction, the bishops of the American State of California, successors of Francisco Garcia Diego, bishop of Monterey, presented their claim for arrears of interest accrued on the Pious Fund since the 2d of February, 1848, before the Mixed American and Mexican Commission created by the convention of July 4, 1868. After proofs and arguments the case was submitted to the Commissioners, who differed in opinion on it and filed their several opinions in May, 1875. The case was then referred to the umpire, Sir Edward Thornton, who concurred in opinion with the American Commissioner and declared the annual interest undertaken to be paid by Mexico on the fund to amount to the sum of $86,101.98, of which he decided that the claimants, were entitled to one-half, say $43,050.99, of which he awarded the claimants 21 installments for the twenty-one years elapsed between October 24, 1848, and February 1, 1869. After correcting an arithmetical error, to be noted further on, this amounted to $904,070.79, all of which has since been paid by Mexico, in accordance with the terms of the convention.

The present demand is for the installments of interest that have accrued since February 1, 1869, now 33 in number, and in reference thereto the Government of the United States, acting on behalf of the prelates, is of opinion and insists that the determination of 1868 establishes conclusively against Mexico both the liability and the amount demanded, under the well-known rule of law, “res judicata pro veritate accipitur” This claim Mexico denies. The prelates, and the United States on their behalf, also claim that if not so established as res judicata, the demand they make is a just one, and that for want of complete information on their part, at the time of discussing the former case, of material facts since discovered by them, and an error of judgment committed by the umpire, the former award was made for a sum materially less than justice required, and that if open to reexamination on the merits the award now to be made should be for a considerably larger annual interest than was awarded in the former judgment.

Hence the two questions to be decided by the present high court are: (1) Whether the decision of the present demand is controlled by the determination of the former award as res judicata? And (2) if [Page 265]not so controlled is this a just claim? And they are so stated in the protocol under which the court is constituted.

I. The first question proposed has been fully and ably discussed by the agent of the United States, and his views on it are, in our opinion, entirely in accordance with sound principles and the highest interests of civil society; for the practice of international arbitration is so conducive to the welfare of all nations that the interests of civilization demand that the highest authority be accorded to the judgments of such tribunals; and indeed while the final decision of any court of justice is held to be conclusive on the parties to the proceeding, as to the truth of any disputed fact determined by it, we can not conceive that that of an international tribunal whose high office it is to administer justice between sovereignsa can command less authority. Indeed the eminent secretary of state of the Mexican Republic recognizes this truth, in his correspondence with the United States, saying,b “the principle of res judicata pro veritate accipitur is one admitted in all legislation,” adding that “a tribunal established for international arbitration gives to its decisions, pronounced within the limits of its jurisdiction, the force of res judicata” His zeal appears, however, to affect his judgment in the practical application of this conceded rule to the present case, and leads him to deny the conclusiveness of the decision of the Mixed Commission of 1868. He deems the award made by it invalid, apparently, for two reasons, viz: First, because he does not consider the preliminary presentation of the claim to the United Stated Government with a request for its intervention satisfactory; and, second, because he claims that only such matters as are expressed in what he terms the decisory part of the judgment have the force of res judicata.

Without the least disrespect to the judgment of the eminent gentleman who presses these views, we are unable to assent to the accuracy of either proposition; for to take them in inverse order, the last-mentioned objection is really based on the requirements of the French law of civil procedure (perhaps adopted in some other continental States) which regulates the forms of judicial sentence in civil cases.c [Page 266]But such laws have no application to the judgments of international tribunals, which adopt whatever forms and modes of procedure they deem most convenient and appropriate. Doubtless the conclusiveness of the adjudication extends no further than the matters actually decided or necessarily implied in it; but it does not depend on what part of the decision the fact in question is found, but upon whether it is really found therein. Here the demand was for annual installments of interest at 6 per cent per annum on a certain sum of money. The award, therefore, necessarily involved the determination of the amount of the principal and the time elapsed; and as only a portion of the whole was demanded the ratio of division between the two parties interested had also to be decided.

Now, the opinion of Commissioner Wadsworth (pp. 525–526), which the umpire adopted (p. 609), leaves no room to doubt the actual decision on any one of the points. He defines the capital, enumerating the several items constituting it, fixes the rate of interest at 6 per cent per annum, and the time elapsed at twenty-one years; the rate of division between the two provinces he says should be equality, in all which decision the umpire concurs; but the counsel for Mexico having called the attention of the latter to an arithmetical error in Mr. Wadsworth’s addition of the items, he corrected it by making the necessary deduction. (Transcript, p. 650.) We scarcely suppose that this correction of an obvious clerical error is to be relied on to impeach the validity of the judgment. If it is, the ready answer arises, that having been made at the instance of Mexico, her assent to it is undeniable; from the character of the mistake, too, that of the United States and of Mr. Commissioner Wadsworth must also be presumed.

The suggestion that the claim did not come within the jurisdiction of the Commission of 1868 is more than once alleged by Señor Mariscal in his correspondence, but the grounds of such contention are not specified; so that we are left to infer them from the arguments of Mr. dishing and Señor Avila. (Transcript, pp. 71 and 635, § 126.) The latter gentleman contends that the preliminary informal presentation of the claim called for by the convention was defective, while the former considers that the injuries complained of preceded the treaty of Guadalupe Hidalgo and were excluded from the cognizance of the Mixed Commission by that fact.

This last objection was, we think, satisfactorily answered in the argument of Mr. Doyle. (Transcript, pp. 93 et seq.) The ground was there taken that the word “injury” is a very broad one in law and includes any deprivation of legal right—“quidquid est contra jus”—and we think that it can not be doubted that the withholding of money due ex contractu, or the ommission of a trustee to apply money in his hands to the purposes of his trust in accordance with its terms, is an injury to the beneficiary or cestui qui trust. That view the tribunal sustained, and we have seen no argument to shake our conviction of its soundness. We did not base our complaint on the taking of the property by Mexico, and probably could not have done so successfully, as the President’s decree had the force of law. Our complaint was, that having taken the property under a distinct promise to pay a certain price for it, the Mexican Governmentfailed to pay the price.
As to the objection that the preliminary presentation of the claim was defective, it is, we think, easily disposed of. The object of preliminary presentation was to identify the matter forming the subject [Page 267]of the claim and to afford opportunity for any inquiries needed. No particular form was required, and we are not aware that a single claim was dismissed for defect in the form of presentation. Here counsel laid the matter of the diversion of the Pious Fund before the Secretary of State of the United States, requesting the interposition of his Government with Mexico to obtain redress for his clients as early as July 20, 1859. He did not presume to define what the Secretary of State should demand, but stated the facts, leaving the measure of redress to be asked to the discretion of the Government of the United States. We deem this presentation all that was needed to fulfill the descriptive words of the convention of 1868; so that criticism on Mr. Casserly’s misunderstanding of the telegrama sent him March 28, 1869, is from the purpose. But the jurisdiction of the Mixed Commission of 1868, even if originally doubtful, was afterwards fully affirmed and submitted to by Mexico herself, and can not now be disputed. The case is strictly analogous to what in English and American law is called a plea to the jurisdiction, and in the law of Spain and Mexico “exception declinatoria.” Such a defense must always be interposed preliminarily, and the right to offer it is waived by pleading to, or going to trial on, the merits. This is equally the rule of the common and of the civil law, and is so logical and just that it may fairly be presumed to prevail under all systems of jurisprudence in civilized countries. Mexico went to trial on the merits of the Pious Fund case, and the objection here relied on to defeat the jurisdiction was only brought forward after judgment on the merits had been signed by the umpire.

Again, all objections to the jurisdiction of the Mixed Commission of 1868 were expressly waived by Mexico, and this not once, but many times. Indeed, power to decide this case was expressly conferred on it by treaty, for the period for its decision of all claims was originally limited to two years and six months from July 31, 1869, and accordingly terminated on January 31, 1872. At that time the Pious Fund claim, asset forth and defined in the Memorial of the Prelates of California (pp. 9, 54), was pending before the Commission. A motion to dismiss it had been made by the counsel for Mexico based on several grounds (not, however, on any defect in the preliminary presentation, of the claim), argued on both sides, and a waited decision. By a supplementary convention, the ratifications of which were exchanged on February 8, 1872 (after the original Commission had by lapse of time expired), it was recalled into life to determine the claims pending before it when it expired, and the period for making its awards was extended for a year, i. e., till January 31, 1873. That was a resubmission by both parties of all those pending cases, with authority to decide them. Further supplementary conventions extended the time as follows, viz: That of November 27, 1872, two years more, or till January 31, 1875. That of November 20, 1874, one year more, or till January 31, 1876, with six months additional for the umpire to complete his labors, and by one of April 29, 1876, the powers of the umpire were further extended till November 20, 1876. Each of these several conventions extending the time for decision, whether by the commission or by the umpire, referred to the cases then pending and undecided, and distinctly assumed that their decision, by the commission or the umpire, as the case might be, was within the competency [Page 268]of the tribunal. If Mexico had at any time before April 30, 1876, deemed this Pious Fund Case beyond the jurisdiction designed to be given to the commission, it was in her power before assenting to any one of these supplementary conventions to expressly except it from the submission. She might have said “we never intended to submit this claim to the commission, and we will not, by prolonging the time for deciding it, consent that it be determined by that tribunal.” Or “we claim that it was not presented seasonably, and will not, by any present action, waive that objection.”

This was the course adopted by Great Britain, under analogous conditions, at the great Geneva arbitration, and the magnitude and character of this claim forbid the supposition that it was on any occasion overlooked or forgotten. Its repeated submission, therefore, was intentional and deliberate and it is quite too late now to question the jurisdiction of the tribunal to whose determination it was voluntarily submitted.

All this is the more emphatically true from the fact that the jurisdiction and powers of the Mixed Commission had lapsed before the first supplementary convention became effective by the exchange of its ratifications. The tribunal was dead, and the parties voluntarily revived it and charged it with the determination of the cases before it undecided at the time of its decease. This was a resubmission of all those cases, including that of the Pious Fund. Still further, the arbitrators had failed to agree on the case, filed their opposing opinions, and referred the decision to the umpire as early as May, 1875.a It was pending and undecided before him when the convention of April 29, 1876, was concluded, the scope of which was confined to cases wherein such difference of opinion had arisen and which had been so referred to the umpire. It gave him in express terms additional time, till November 20, 1876, to determine them. If that convention was not an express authority to him to determine each and every case, coming within the category described of cases referred to the umpire, it is difficult to say what it was.

There is therefore no room for any suggestion of error, ignorance, or oversight in this case. The nature, particulars, and amount of the claim were well known to the Mexican Government, and especially to the officers who negotiated these various conventions. Don Manuel Aspiroz, who agreed on and signed the first supplementary convention, was one of the counsel for Mexico before the Commission, and filed an elaborate argument in the case. Its repeated resubmission to the Commission, and finally to the umpire, was clearly intentional, and Mexico can not now be heard to object to the tribunal she deliberately invited to make the decision.

We do not lose sight of the well-settled principle that the decision of the Commission as to its own jurisdiction (there being no mode of reviewing its decisions provided) must be final and conclusive. This is obviously a necessary logical sequence from the origin and nature of the court, and has received repeated judicial recognition. It has also been fully discussed by the counsel for the United States, and we therefore limit ourselves to the other grounds above stated, especially as they go more directly to the absolute merits of the question.

In this connection, too, the peculiar language of the convention of [Page 269]1868 and its attendant circumstances are significant. It must be remembered that the treaty of Guadalupe Hidalgo contained (Art. XXI) a general promise to treat future international differences, if such arose, in a spirit of friendship, and to seek to adjust them, if possible, by arbitration. For twenty years thereafter many circumstances occasioned complaints by citizens of each of the Republics against the government of the other. Anxious to settle all of these, and to “increase the friendly feelings between the two nations, as well as to strengthen the system and principles of republican government on the American continent,” the two Republics entered into the convention of 1868, wherein, after reciting the existence of numerous claims, as above, by citizens, etc., “for injuries to their persons or property,” they agree to refer all such to the Mixed Commission provided for therein, and to an umpire, in case of disagreement, and by Article II “solemnly and sincerely engage to consider the decision of the commissioners conjointly, or of the umpire, as the case may be, as absolutely final and conclusive upon each such claim decided by him or them, respectively, and to give full effect to such decisions without any objection, evasion, or delay whatsoever.”

The object and intent of this convention being plainly to put an end, once and forever, to the whole mass of diversified claims which had accumulated during the long period of disorder referred to, the words “injuries to their persons or property” were employed as “nomina generalissima,” or the broadest and most comprehensive known to the law, for the purpose of including all complaints of every kind. While refusing consideration to claims antedating the treaty of Guadalupe Hidalgo (February 2, 1848), it was agreed to provide for the decision, by a judicial tribunal, of all subsequent to that date. And as if anticipating, from the large number and great variety of cases to come before it, that a question might be raised after decision as to whether a particular case came within the class submitted, they inserted the clause quoted above, from Article II, to hold the decision of the arbitrators or umpire on that point also conclusive, and that they would “give full effect thereto without objection, evasion, or delay,” adding in Article III, as if for more abundant caution, that “it should be competent for the commissioners or the umpire to decide, in each case, whether any claim had been duly made, preferred, laid before them,” etc., and agreeing, in Article V, “to consider the result of the proceedings of the Commission as a full and final settlement of every claim upon either government arising out of any transaction of a date prior to the exchange of the ratifications of the present convention” (February 1, 1869.)

The inevitable corollary and effect of the decision of the umpire was and is to establish that the principal sum on which Mexico promised by the decree of October 24, 1842, to pay interest at 6 per cent was $1,435,033; that the prelates of California as successors of the former bishop were entitled to one-half of that annual payment for the twenty-one years between October 24, 1848, and February 1, 1869, amounting to the sum awarded, viz, $904,070.99. The arithmetical calculation is just as much a part of the decision as the product reached by it.

Finally. The memorial of this claim, in exactly the shape in which it was decided, accompanied by historical references, was filed before the Commission December 31, 1870. On April 24, 1871, Mexico, by [Page 270]Mr. Cushing, moved to dismiss it on other grounds, going to the nature of the claim, the title of the claimants, and their capacity to sue, but offering no objection to the jurisdiction of the Commission based on the insufficiency of the preliminary presentation (p. 67). He also filed an argument in support of his motion. On March 1, 1872, arguments thereon on the part of the claimants were also filed (pp. 72, 80). Then, after long delay and no decision of this motion, the counsel for both parties offered proofs, which were filed between March 1, 1873, when those of the claimants were filed, and October 30, 1873, when Mexico’s proofs were put in. The argument of Don Manuel de Aspiroz on the merits on behalf of Mexico was filed on the last-named day, and was replied to by Mr. Doyle on January 25, 1875 (pp. 222, 369). On May 19, 1875, the conflicting opinions of the commissioners were filed (pp. 523, 527).

During these five years and over of litigation before it, no word of objection to the preliminary presentation of the claim was heard from Mexico, nor did the Mexican commissioner give expression in his opinion to such a thought. The case then went to the umpire. It was argued before him by Don Eleuterio Avila for Mexico in a brief filed July 10, 1875, and by counsel for the claimants filed July 24 of the same year. Still no mention of any objection to the jurisdiction.

November 29, 1875, the umpire signed his opinion and allowed it to become known. On January 29, 1876, Mexico, through Mr. Avila, petitioned for a rehearing, and then, for the first time, denied the jurisdiction of the tribunal—five years and ten months after the presentation of the case. And on September 19, 1876, eight and two-thirds months thereafter, presented an argument in support of such petition, wherein this objection to the presentation of the claim was brought forward. (Transcript, p. 635.)

The discussion of it commences at paragraph 125 (p. 635) of his argument, wherein he complains that instead of presenting their demand to Mexico they allowed year after year to elapse till July, 1859, when they brought it forward in an exaggerated form, demanding the whole of the fund, interest, and principal, citing and commenting on the letter of Mr. John T. Doyle to Mr. Secretary Lewis Cass, of July 20, 1859, and that of Mr. Eugene Casserly to Mr. Secretary Fish, of March 30, 1870.

With reference to this matter Mr. Doyle has been examined as a witness, and his testimony, coupled with that of Archbishop Alemany, shows pretty satisfactorily that the claim was on July 26, 1852, presented by the latter to the Mexican Government in writing (contrary to the supposition entertained by Sir Edward Thornton), and after a delay of two months was, on September 29 of the same year, distinctly refused. His evidence further explains his demand of July 20, 1859, and shows the instruction he telegraphed to Mr. Eugene Casserly as to presenting the claim to the Mixed Commission. For the formal deviation from this instruction the claimants are hardly to be held responsible at this late day. Had attention been called to it at the time it could have been amended, for the Commission had power by the convention to enlarge the time for presenting claims three months. No objection, however, was made to either presentation until six years and a half after the latest one was made. Señor Avila in then bringing it forward practically admitted that it was entirely too late, but sought to throw it in as a makeweight to induce the umpire to adopt [Page 271]a suggestion that he put forward in his petition for a rehearing, viz, that the umpire should reconsider the amount of his award, and while reducing the aggregate make it include the portion of the capital of the fund which he awarded to Upper California. (See paragraphs 140, 158, 173, et seq. to the end, Transcript, p. 637, etc.)

It is not to be supposed that this was designed to entrap the umpire into making an award which transcended his power, but there is little doubt that had he complied with it he would have done so.

That the decision of the Mixed Commission of 1868 would determine the amount annually due from Mexico once for all as res judicata did not escape the discernment of the representatives of Mexico at the time it was uttered. Señor Zamacona, the Mexican commissioner, says (Transcript, p. 543): “This situation the claimants now desire to alter and to oblige Mexico to pay the perpetual tribute of a rent to certain American corporations.” A little farther on (id.) he speaks of it as “a sort of perpetual annuity which they want to secure in favor of their churches.” (Transcript, p. 643.)

Señor Avila presses the same idea, saying (Transcript, p. 551):

Y á fé si en efecto echó mano el Gobierno de México de los restos del fondo de misiones para sostener la guerra contra los Estados Unidos á cuyo término perdió mas de la mitad del territorio nacional—inclusa la Alta California—sería curioso que hoy se le hiciese pagar en beneficio de los Estados Unidos y de una secta religiosa que tiende á predominar en ellos, no solamente lo que entónces tomara de dichos fondos, sino un tributo perpétuo como réditos del mayor valor que alguna vez pudieron tener.

Again (Transcript, pp. 554–555):

Sería una iniquidad monstruosa, * * * al Gobierno de México, si le compeliera á pagar un tributo perpétuo Á los Obispos de California.

The same gentleman, in his petition for a rehearing (Transcript, p. 612), says:

Cómo puede creerse que el Gobierno de México se constituyese un tributario pérpetuo de una Iglesia extrangera?

II. It is, however, our duty, under the terms of the protocol, to consider the case on the assumption that the court may be of the opinion that the judgment of the Mixed Commission of 1868 is not conclusive, and to discuss the justice of the claim of the church for the interest on the Pious Fund. This we shall do but briefly.

1. The question whether the prelates of the church are proper parties to demand fulfillment of Mexico’s obligation to pay the portion corresponding to Upper California of the price she promised to pay for the Pious Fund when she incorporated it into the national treasury is answered by many notable precedents and decisions of eminent legal authorities. These were cited in the former argument (Transcript, pp. 86–93, 471), and we shall not weary the court by further reference to them or by a discussion of the point. This question cuts no figure here—nor is it a question for this or any other international court. The Government of the United States is the party to decide whether it will demand from a foreign government payment of a debt on behalf of its citizens who are interested. It represents them, and is competent to represent them at all times and places and to all intents and purposes, and the fact that the United States makes the demand on behalf of any of its citizens is conclusive as to its authority to do so.

2. As to the liability of the Mexican Government for the fulfillment [Page 272]of the promise made when taking the Pious Fund into the treasury, it is really a question of simple good faith. The fund was composed wholly of means donated by private individuals, placed in the hands of trustees, and devoted to a specific pious and benevolent purpose. Neither the Crown of Spain nor the Mexican Government ever contributed to it a single maravedi. As said by Commissioner Wadsworth in his opinion:

The fund does not belong to the Government of Mexico—not a dollar of it; it is private property, sacredly devoted by the piety of a past age to Christian charity and fortified against political spoliations by all the sanctions of religion and all the obligations of good faith. (Transcript, p. 527.)

We have had intimations that the fund came originally from the Crown of Spain, and General Santa Anna’s act has been called a resumption of public funds; but this is to miscall it. We have repeatedly challenged proof of the contributions to it by either Government of a single dime. None such has been offered, nor can it be produced. The Crown on a few rare occasions gave, we believe, some assistance to the missions, e. g., bells for the chapels, vessels for the altar, or a few head of cattle to commence a settlement, but nothing to the Pious Fund.

The writer has read everything on the subject in print or in manuscript that it has been possible to find in the last forty years and over, and is led to believe that so small a sum as $5,000 would cover all that either Spain or Mexico ever contributed toward aiding the missionary efforts of the religious orders toward conversion and civilization of the native tribes or in any way to the support of religion in the Californias.

3. As to the amount of the fund. We have shown the historical evidence from works of recognized authority printed and published longe ante litem motam the following large donations. Of the numerous smaller ones, which, however, aggregated a large amount, we take no account, it being naturally impossible to make any proof of or follow such sums.

(a) The early subscriptions mentioned in Venegas, California, The Nachrichten, the Tres Cartas, and the Documentos para la Historia de México, amount to (see extracts, Transcript, pp. 187–221; Tr. Cartas, carta 2da, p. 48). $130,000
(b) the donatio inter vivos by the Marquis de Villapuente and his lady, of which a duly certified copy is among the proofs forming the record of the former arbitration (Transcript, pp. 99, 104, 111), shows a contribution of property valued at 408,000
(c) The donation of the Duchess of Gandia, say $60,000, and as much more bequeathed by her will (Transcript, p. 198). 120,000
(d) Three-eighths of the residuary estate of the Señora Josefa Paula de Argüelles, of Guadalajara, the exact amount of which we can not state, but which certainly exceededa 600,000
Amounting in all to 1,258,000

Confirmation of the general accuracy of these figures, from an independent source, is derived from the estado of the Pious Fund on November 16, 1792, given in the Pandectas Hispano-Mexicanos, volume 2, page 173, which shows:

Cash in hands and invested $180,973.61
Haciendas (value) 647,962.27
Total capital of the fund at that time 828,936.08
Annual income (average of five years) 55,177
Less care of the property, etc. $24,150
Expense of missions 22,550
Surplus applicable to the founding of a college etc., per year 8,477

This was before anything was derived from the estate of madame arguelles, the final judgment in whose case was only pronounced in the spring of 1793, and communicated to the viceroy under date of Aranjuez, March 16, 1793, reaching Mexico in June of the same year. (See anexos 16 and 17 to the argument of D. Manuel de Aspiroz, Tr., pp. 315, 317.) Adding the $600,000 from Madame Arguelles to the capital above the amount would be $1,428,036, which is materially over our estimate above.

[Page 273]

As said above, we take no account of minor donations, and count nothing upon the natural increase of the property from judicious investment and employment of the funds in the careful and skillful hands of the Jesuits, who were and are noted for their success, resulting from the habit of placing their finances in the hands of their members most competent for the purpose. The object of these historical citations is to demonstrate the existence of a fund of great magnitude at this early date devoted to the objects we have indicated. Mexico has in her possession, among the archives of the viceroyalty and of the nation since its independence, exact accounts of all these details. We claim the presumption that must arise, in every candid mind, from her omission to produce any of them.

4. The original trustees of those large funds were the Jesuits. By an act of arbitrary power the Spanish Crown dispossessed and exiled them, seizing on all their possessions. (Pragmatic Sanction. Novísima Recoplacion. Lib. I, tit. 26, Ley. 111.) It acknowledged the trust character of this fund and took upon itself its administration and application to the purposes of its foundation. (Pragmatic Sanction, supra, sec. 3, anexo 17, p. 317.) On attaining its independence Mexico succeeded to this possession of the property and acknowledged the attendant duty of administration. (Law of June 28, 1824; treaty with Spain December 28, 1836.) During the troubled period of the struggle for independence irregularities and lapses occurred in the management, but the duty was never denied, and with honorable pride the newly emancipated State made haste to acknowledge its liability for the debts of the viceroyalty, to the possessions and powers of which it succeeded. (Law of June 28, 1824; treaty of December 28, 1836.) The record contains two or three “estados” more or less complete, of the fund at different dates (Transcript, pp. 174, 220, 221), which by the names of the landed estates belonging to it and other [Page 274]hall-marks show its identity with that founded in 1697 by Frs. Salvatierra and Ugarte, increased by the above-mentioned donations of the Marquis de Villapuente and his wife, the Duchess of Gandia, and Señora Argüelies.

5. The offer to place the possession and management of the fund in the hands of the bishop of California (law of September 19, 1836) simultaneously with the creation of the diocese, whether we regard it as an inducement to the Holy See to consent to that step or as a formal acknowledgment of the right of the prelate to the control of funds destined to the promotion of religious instruction in his diocese, confirms the acknowledgment of the trust character of the estate theretofore held by the Government and the identity of the beneficiaries.

6. In the year 1842 we find it possessed and administered by Bishop Francisco Garcia Diego, as trustee, for the missions of California, over which he had been called to preside as bishop. General Santa Anna was then provisional President of Mexico, with extraordinary powers conferred by the fundamental law, proclaimed under the title of the “Bases of Tacubaya.” His power was practically that of a Roman dictator.

By an act of this extraordinary power he (February 8, 1842) took from the bishop the administration and management of the Pious Fund and appointed Gen. Gabriel Valencia, his chief of staff, to be its trustee and manager on the part of the Government. Bishop Diego was at the time in California, having left the management of the properties of the fund in the hands of Don Pedro Ramirez, as his apoderado, or attorney in fact. Ramirez being far advanced in life, the management of the rural properties of the fund were especially intrusted to Don Miguel Balaunzaran. Called on suddenly by General Valencia to surrender and turn over to him the properties of the Pious Fund, Ramirez strove to obtain a sufficient delay to enable him to communicate with his principal, the bishop; but not being successful in this he complied with the demand and turned over the property to General Valencia, accompanied by an “instruction circunstanciada” or detailed inventory of it.a

This, though incomplete, is the latest and last authentic declaration of the properties and credits of the fund that we possess. It was taken as the basis of his award by the American commissioner in 1875, in which the umpire concurs, and shows, in brief, that the capital of the fund consisted of:

Amount due from Government for loans $1,082,078
Debts of individuals 72,122
Annual rent of real properties, $17,330, equal at 6 per cent per annum to capital of 288,833
Total capital 1,443,033

These figures, derived entirely from contemporaneous data, fully sustain the former judgment; and the award of interest on the capital at 6 per cent per annum is in conformity not only to the scale fixed by the decree taking the fund into the treasury, but with the rate Mexico herself deemed reasonable, and paid to other creditors representing like demands, as shown by the report of Manuel Payno, which [Page 275]is in evidence. (Transcript, pp. 22 et seq.) It was in fact a low rate for the time. The United States paid 6 per cent for loans till a much later date.

Now, if the former award is not to be deemed conclusive, there are additions to be made to this capital, as follows:

1. In making it, Mr. Commissioner Wadsworth, whose award was adopted by the umpire as his owm, threw out of the account the valuable estate of Cienaga del Pastor (which was bringing in an annual rental of $17,100, of which three-fourths belonged to the Pious Fund), because the instruccion circunstancida stated that the property had been attached by a certain Señor Jauregui, and the ultimate fate of that attachment suit was not shown. This would represent at 6 per cent a capital of $213,750. As to this item the decision of the court took the writer by surprise. It appeared to him then that if that property or any part of it was lost to the Pious Fund in consequence of the result of that attachment suit, it was for Mexico to show it, and no effort was made on our part to prove the outcome of the litigation. In fact, it was obviously out of our power. This opinion we still consider a correct statement of the rule of evidence. But having since obtained certain evidence on the subject we have laid it before this court. It appears from page 32 of a pamphlet published in the City of Mexico, in 1845 by D. Juan Rodriguez de San Miguel (a gentleman whose writings on the subject are quoted as authority by Señor de Aspiroz, par. 76), and entitled Documentos relativos al Fondo Piadoso de Misiones, etc., de la Antigua y Nueva California, etc., that on October 25, 1842, the very day after General Santa Anna’s decree incorporating the properties of the Pious Fund into the public treasury, Sr. Trigueros, of the Ministerio de Hacienda, communicates in writing to the “Señores encargados de la tesoreria general” that the “liquidatarios y demas socios de la estinguida empresa de tabacos” had on the preceding day made an offer to purchase from the Government the hacienda Amoles with its anexas, the three-fourths of the Ciénaga del Pastor with its anexas., both properties of the Pious Fund of California, for a price to be computed by capitalizing their annual rents at 6 per cent per annum, on terms which the President had accepted. And from another communication of the same official, published at page 33 of the same pamphlet, we learn that $3,000 additional were allowed by the purchasers for the llenos on the property, they taking the risk of the ownership thereof in case they should be claimed by third persons. Following this is a certificate by Ramon Villalobos that the escritura de venta of the property had been executed in the register of the treasury department. The United States has demanded a discovery by Mexico of these letters and this escritura de venta under the provision of the protocol constituting this tribunal, and although the demand has not as yet been complied with, we must assume that it will be, and therefore call attention to the fact that it shows that the escritura in question bears date November 29, 1842, and was executed in the presence of Ramon Villalobos by the Señores D. Tranquilino de la Vega and D. Nicolas Maria Fagoagas, ministers of the general treasury of the nation, and that by it they sell and convey to the parties referred to, for the price of $428,500, the three-fourths of the Cienaga del Pastor with its anexas, the Hacienda San Agustin de los Amoles with its anexas, viz, San José, La Vaya, San Ignacio del Buey, el Custodio, and Buena Vista.

[Page 276]

Now, as the last-named six properties produced a rent of $12,705 per annum, representing at 6 per cent a capital of $211,750, the remainder of the consideration money must have been the price of the Ciénaga del Pastor with its llenos.a

This discovery renders it unnecessary to inquire into the fate of Mr. Jauregui’s attachment suit, for, attached or not attached, the Government sold the property for $216,750, and that sum should be added to the amount of capital allowed by Commissioner Wadsworth and the umpire.

2. He also deducts from the amount of the Government indebtedness to the fund the sum of $7,000, as a bad debt, under the date of October 29, 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 $420 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. The passage in the instruccion circunstanciada referring to said item is as follows; “Otro de siete mil ps., que por órden ejecutiva del supremo gobierno, para que entregaren á los Señores Revillas veinte mil, exibió su apoderado, Don Francisco Barrera, en 20 de Octubre de 1829, y un pagaré contra la compañia Alemana-Mexicana que no se cobro” (p. 172), which has been misunderstood. The words “que no se cobro” in this passage evidently refer to the pagaré or promissory, note of the German-Mexican Company, not to the “órden ejecutiva del supremo gobierno.” The instrueeion circunstanciada of Mr. Ramirez does not therefore designate this item as a bad debt, but states the circumstances out of which it arose, viz., that the Government, desiring to pay Srs. Revilla $20,000, gave an order on the trustees or managers of the Pious Fund for $7,000 thereof, in favor of Don Francisco Barrera, apoderado of the Señores Revilla, payable out of the Pious Fund, which he presented on October 20, 1829, leaving, either as a counter security or for some other reason, a “pagaré” or promissory note of the German-Mexican Company, which was not paid. (See testimony of John T. Doyle, and consult the interpreters.)

3. Besides these two corrections, amounting to $223,730, there is the following evidence that on or about July, 1834, the Government borrowed from the fund sums amounting to $22,763.15 under the following circumstances: A law had been passed in 1833 to secularize the missions of California; under this they were to be turned into pueblos, the missionaries exchanged for parochial clergy, etc. Connected with this general scheme it was determined to send a colony up from Mexico to settle in the country. Colonists were invited and enrolled whose expenses, including a small daily personal allowance to each, were to be defrayed by the Government, and the expedition was to set out from San Bias in the corvette Morelos and the brig Natalia.

[Page 277]

In the same letter (No. 1, Transcript, pp. 160, 500) Mr. Ramirez states that he had paid more than $30,000 on account of a loan of $60,000 which the Mexican Government had raised on mortgage of the Pious Fund, drawing interest at 2 per cent per month, and that he was under pressing demand for $2,000 more drawn for on him by the Government in favor of Mr. Eustace Barron, British consul, for money furnished to the colonization expedition. These two sums, amounting to $32,000, should, if the matter be open to question, be added to the capital of the fund, together with the above indebtedness of $223,730, amounting altogether to $278,493, and making its total capital $1,714,526, the annual interest on which at 6 per cent is $102,871.56. (See Ramirez, letter 1, above cited.)

The colonization scheme proved an expensive failure, and there is so much reason, on the face of these papers and other circumstances, to suggest the probability that the whole expense of it was defrayed out of the Pious Fund, that if we could persuade ourselves that there is any probability that the court would go behind the award of the Mixed Commission of 1868, we would follow up the clues with confidence of obtaining proof of large sums so expended. But to us it is incredible that this high permanent international court will ever so far undervalue its own decisions as to hold that a demand solemnly adjudged by a similar tribunal can be reopened at the instance of either party; hence, we follow this inquiry no further.

4. In the memorial of the present claim we have said:

6. If the adjudication of the tribunal constituted under the convention of July 4, 1868, is not deemed conclusive as to the amount due the claimants on account of the Pious Fund, neither is it conclusive as to the proportion in which the income should be divided between Upper and Lower California, and an equal division between the two former provinces (of Mexico), whatever excuse may have appeared to exist for it in 1875, is at the present day wholly unjust and, indeed, absurd.

Lower California was the name applied to the peninsula that separates the sheet of water called the “Gulf of California,” and sometimes the “Mar de Cortés,” from the Pacific Ocean. It is a prolongation of the chain of coast mountains of the mainland lying to the north down to Cape San Lucas, where their summits cease to appear above the sea level. It has not a single permanent river, a most scanty rainfall, a very considerable area of desert, and a very small area of arable land; the greater part of it is mountain summits. Prior to the expulsion of the Jesuits its population (almost wholly Indian) may be assumed almost at 50,000. After that event disease speedily set in. Sailors visiting the coast introduced smallpox, measles, and nameless contagious diseases, which swept away the wretched population; “under the austere rule of the Dominicans the majority of the converts relapsed into barbarism.”a We have two authentic accounts of the general condition of the country from independent observers, and know of no others of any value. Venegas’ California, published in Madrid in 1759, and a report made to the Mexican Government, by “Citizen Ulises Urbano Lassépas,” and printed in the City of Mexico a hundred years later. Neither the account of the French expedition under Chappe d’Auteroche to observe the transit of Venus, in 1767, nor the Apostólicos Afanes, give general information on the subject. During the period that elapsed between the expulsion of the Jesuits and the publication of Lassépas book, the ruin of the missionary establishments and the decrease of the inhabitants [Page 278]of the country are manifest. Venegas’ book is accessible in public libraries, and from that of Lassépas (which we believe to be a publication of the Mexican Government), we will append hereto extracts confirming this statement. Upper California, on the other hand, at the time the Pious-Fund came into existence, though without definite boundaries, was understood, in Spain and Mexico, to extend up the coast of North America as far as Spain claimed, and eastward indefinitely. In proof of this claim of Spain at the time and after, we need only refer to the difficulty with England about Nootka Sound in 1790, where she asserted sovereignty as far up as latitude 60°. Coronado’s great march of discovery (1540–1542), is now known to have taken him as far east as the present State of Kansas. In this enormous stretch of country, called by the Spaniards Alta California, and referred to in the foundation deed, have since grown up several flourishing American States—California, Oregon, Washington, Nevada, Utah, the two Dakotas, Colorado, and Montana. The population of these, according to the last United States census, is 3,714,000, and other statistics as given in the Catholic Directory are as follows:

State or Territory. Churches. Mission churches. Total churches. Catholic population.
California 162 143 305 317,000
Oregon 42 40 82 50,000
Washington 47 57 104 50,000
Montana 30 33 63 50,000
Nevada and Utah 9 11 20 9,500
Colorado 57 88 145 70,000
Total 347 372 719 632,500

The object of missionary effort lies always in the future. No one who has read anything of Catholic missions among barbarous people will fail to recognize that their leading idea was to get control of and educate the children in Christian habits and morals. They could expect to accomplish little with the adult population beyond inducing them to abandon their nomadic life and dependence on the chase, in favor of stable residence in villages and the cultivation of the soil, to clothe themselves decently, and abstain from polygamy and wars. To divide equally a fund destined for missionary purposes between the inhabitants of two countries so widely dissimilar in character, prospects, population, and the capacity to support population as Upper and Lower California is, as it seems to us, rightly characterized as absurd.

We are aware of and do not undervalue the excuse for it that existed twenty-seven years ago, when the judgment of the Mixed Commission was pronounced. It was then contended by the leading counsel for the claimants that a division in the proportion of 9 to 1, or, perhaps, 8 (Transcript, p. 477) to 1, would be proper, in view of the extent and capabilities of the two countries, but this claim was opposed by gentlemen, resident on the spot, his juniors, who had been retained to assist him and who, regarding the whole business of missions as analogous to commercial partnerships for gain, and relying on judicial decisions that, in the absence of evidence to the contrary, the interests of partners would be presumed to be equal, declared an equal division to be the just one (p. 594). The anticipations of 1875 have been realized by the close of the century, as the above figures show.

[Page 279]

The last Mexican census appears to give an increase of population to the peninsula. Assuming its correctness, we have claimed in the memorial in the present case 85 per cent of the income for Alta California against 15 per cent for the peninsula, which is a division decidedly liberal to the latter.

From a publication entitled “Diccionario Universal de Historia yde Geografia, 10 vols., 4to., México Libreria de Andrade, 1853” we find that the population of both the Californias in 1793, as stated in the report of Conde Revilla-Gigedo, was 12,666. In 1805 the population of Lower California is laid down as 4,669. In 1810 it is stated at 4,496; in 1842 as 3,766; and in 1851 as 8,290. (Tomo II, pâg. 50 et seq. Verb. Antigua California.)

III. Something should perhaps be said as to the money in which the award should be made, and in reply to the suggestion of Sr. Avila, that interest on so much of the public debt as went to make up the capital of the Pious Fund should not be allowed, for the reasons assigned in his argument for rehearing. (Transcript, p. 642; sees. 158–159.)

These matters may be briefly discussed together. In 1842, when the Pious Fund was incorporated into the public treasury, the standard of money value was the gold dollar. The great depreciation of silver has occurred since that time. As said above, when a sovereign constitutes himself trustee his duties are precisely the same as those of a private person in like case. Were an individual to allow the trust funds in his hands to remain invested in securities that were steadily falling in value, until from par they had gradually sunk to 40 or 35 per cent, or whatever the present value of silver is, no court would hold him free from blame or entertain any excuse for it. And here the trustee is not such by the appointment or will of the founder of the trust established, nor at the suggestion of the beneficiaries; he has thrust himself in the office against the will of both. The Marquis de Villapuente and his wife provided distinctly in the foundation deed (Transcript, 103), “que ambos otorgantes queremos que en tiempo alguno se inculque, ni por ningun juez eclesiástico ó secular se entrometa á saber si se cumple la condicion de esta donacion, pues nuestra voluntad es que en esta razon haya lugar ninguna pretension, y que cumpla ó no cumpla la Sagrada Compañia con el fin de las misiones, en esta materia, solo á Dios nuestro Señor. tendr á que dar cuenta, pues tenemos la entera satisfaccion de que cumplirá con su obligacion, y hara lo que fuere mas del agrado de Dios neustro Señor.”

The bishop who represented the beneficiaries protested against the act. A trustee who comes in thus in invitum can hardly be heard to allege any reason for failing to pay his own indebtedness to the trust estate. And the excuse which Señor Avila puts forward for him is of the flimsiest sort. He says (Transcript, p. 644, § 171): “Por último, obligar al Gobierno de México al pago de réditos de una parte de su, deuda pública, cuando es notorio que no pueda pagarlos á todos sus acreedores, es establecer un privilegio irritante en beneficio de una corporacion Americana,” etc., but the court will not fail to remark that the privilege is the direct and necessary consequence of the acts of Mexico herself. She was not asked to take upon herself the position of a trustee. She did it ex motu proprio, and in doing so gave to the cestuis que trustent or beneficiaries the right to say, “we are not ordinary public creditors. We have ceased to be such by your act. You, [Page 280]by forcing yourself on us as trustee, have made us preferred creditors. Whatever reduction, abatement, or concession you may make with other creditors, you have by your new act bound yourselves to pay us in full. You have sunk your character of sovereign in that of trustee and must abide the consequences.”

Such was the view taken of the case by the former Mixed Commission, and its judgment is binding on both parties, not only by the nature of the case, but by the express terms of the convention of 1868, as above quoted.

The obligation of a trustee to pay what is due by him to his cestui que trust is held sacred the world over. We do not believe that a bankrupt or insolvent law of any country provides for the discharge of the debtor from such debts. Here the the question propounded by the protocol is, Is this a just claim? We answer it by the counter question, Can any upright mind doubt it?

Writing without any knowledge of what may be alleged on the other side by the eminent gentlemen charged with the defense of the interests of Mexico in the present case, except so far as may be surmised from the former one, we have omitted the discussion of questions then considered, in the confidence that the learned judges presiding here will do us the honor to-read our arguments before that tribunal, at pages 80, 462, and 557 of the printed Transcript. The only matter discussed in them to which we shall specially allude here is the transactions between Mexico and Spain as to the fund of the Philippine missions, regarding which we are now better informed than we then were. As stated in a note to page 16, all the endowment of the Philippine missions existent in Mexico, except two estates of minor importance, was derived from the residuary estate of Señora Arguelles already mentioned. During the war of independence remittances of the income to the Philippines were suspended, but after the establishment of Mexican independence an agent of those missions came to Mexico to obtain the arrears. The two small estates called “la chica” and “la grande” had been sold, and Mexico agreed to pay for them the sum of $115,000, besides $30,000 additional for back rents or interest. This agreement was evidenced by a convention between Spain and Mexico dated November 7, 1844, the text of which is to be found in the “Colleccion de tratados con las naciones estranjeras, leyes y decretos que forman el derecho internacional Mejicano” (Mexico, 1854), at page 516. This was Mexico’s formal acknowledgment of what she regarded as her duty in that case. On the former arbitration, D. Manuel de Aspiroz fell into the error of supposing that this concession to Spain was one of the inducements to her acknowledgment of Mexican independence (p. 249, par. 136, etc.). But this was shown (at p. 474) to be a mistake, for Spain acknowledged the independence of her former colony by the treaty of Madrid, December 28, 1836, eight years before the signing of the convention of November, 1844.

The latter, however, only disposed of the two haciendas mentioned which have been alienated. The interest of the Philippine missions in the residuary estate of Señor Arguelles remained, and could not be denied. Of these properties, too, some at least had been sold, and Mexico agreed to pay over the prices received for them. She seems also to have made some arrangement by which the three-fourths of the “Cienega del pastor” and the house on Vergarra street, which had [Page 281]been owned by the Philippine missions and the Pious Fund in common, should thereafter belong to the latter in severalty,a and further negotiation with Padre Moran and the Spanish minister led to a second convention, of December 6, 1851, which is found at page 32 of the Transcript, followed by a statement of the sums paid and remaining due under it, taken from Manuel Payno’s report. The author earnestly resents agreeing to pay the sums shown by the books of the treasury department to have been received for the property, instead of calling on Spain to prove them by other evidence. Payno’s statement is too lengthy to be summarized here, but fully bears out all we have claimed for it.

With this imperfect review of it, we respectfully submit the case to the impartial and enlightened consideration of the court, with the final observation that the promise to pay the interest is dated October 24, and in the absence of a special agreement the installments of interest mature on that day, in each succeeding year thereafter. The latest included in the former award was that which matured October 24, 1868. Thirty-three have since accrued, and another will become due October 24, 1902. A table showing the dates and amounts herein discussed will be hereto annexed, of presented herewith.

  • John T. Doyle,
  • W. T. Sherman Doyle,
    Of Counsel for the Prelates.

  1. “Justiciâ gentes frenare superbas” Virg.
  2. Letter of November 28, 1900, par. 17. (Dip. Cor., pp. 31 and 39.)
  3. Code de procedure Civile; Liv. 11. Tit. VII. Jugements.

    Sec. 141. La rédaction des jugements contiendra les noma des juges, du procurer du roi, s’il á ÉTÉ entendu, ainsi des avoués; les noms professions et demeures des parties, leurs conclusions, l’exposition summaire des points de fait et de droit, les motifs et le dispositif des jugements. (L 16–24 Août 1790, art. 15. L 20 Avril, 1810, art. 7.)

    Les codes annotés de Sirey. Edition entieremen refondue par P. Gilbert. Paris Marchal Billard et cie. Place Dauphine, 27. 1875.

    See, also—

    Repertoire universelle et raisonné de jurisprudence, 5me edition par M. Merlin, ancien Procurer Général à la Cour de cassation. Bruxelles, H. Tarlier, 1826. Tom. XVI. p. 180. Tit. jugements, § 11.

    “§ 2. Da la rédaction, de la date et de la signature des Jugements. I. Pour les ‘matières civiles, l’art. 15. du tit. 5 de la loi du 24 Août, 1790, contenait sur la redaction des judgements, une disposition ainsi conçue.

    “La rédaction des jugements tant sur Pappel qu’en première instance, contiendra quatre parties distinctes:

    “Dans la premiére, les noms et les qualités des parties seront enoncés;

    “Dans la seconde, les questions de fait et de droit, qui constituent les procès, seront posées avec précision;

    “Dans la troisieme, le résultat des faits connus ou constatés, par l’instruction, et les motifs qui auront determine le jugement, seront exprimés; La quatrième enfin contiendra le dispositif du jugement.

    “Toute contravention à cette règle emportait nullité. Cela résultait de l’art. 2 de la loi du 4 germinal an 2.”

  4. See testimony of John T. Doyle.
  5. For all these dates, see Docket Entries, p. 3.
  6. With the exception of two small estates, called, respectively, La Chica and La Grande, the missionary funds of the Philippine Islands, so far as they existed in Mexico, were derived from the bequest of Señora Josefa Paula de Argüelies, who by her will bequeathed her residuary estate to the missions of California and the Philippines, to be equally divided between them. The portion belonging to California was added to the Pious Fund. Mexico sold the estates in which the Philippine missions were interested, and in the report of Manuel Payno (Transcript, pp. 23, 24) we find that up to May 7, 1814, there had been paid into the Mexican treasury from this source $306,901.75 for the account of the missions of the Philippine Islands; a like amount, as shown in the same report, belonged to the Pious Fund. Besides this amount, three-fourths interest in the hacienda Cienaga del Pastor came from the same source; this interest was afterwards sold for $216,750. To these sums must be added the value of the three-fourths interest in the houses 11 and 12 Vergara street, which was sold for $52,000, thus making a total of $575,651.75. Besides this we are led to believe that there was other property derived from the same sources.
  7. See the correspondence proved as Exhibit A to the deposition of Padre Romo de Jesus (Transcript, pp. 159–180; repeated, pp. 470–525). Demand for delivery by inventory No. 6 (p. 164; repeated, p. 483; translation, p. 505).
  8. Llenos” as here employed is not to be found in any dictionary. We understand it is a local form of expression for the tools, implements, machinery, etc., on such an estate. Its etymology also suggests that it might include the crop on hand, or, as termed in English law, emblements, continens pro contento. This is fully confirmed by the fact that the rent of the three-quarters of the Ciénaga is given at $12,825, representing at 6 per cent a capital of 1213,750, which, with the $3,000 for the llenos, makes up exactly the total of the purchase price.
  9. Greehow’s Oregon, Ch. III, p. 107.
  10. They probably bought out the Philippine mission interest with moneys of the Pious Fund.