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Argument for the defense before the honorable umpire.

[Translation.]

Thadeus Amat and others v. Mexico. No. 493.

The present case is of the greatest weight and importance, not only on account of the questions which are raised, but also because of the result which the decision rendered may have for Mexico in the future.

The undersigned, feeling sure that the umpire will examine with his accustomed care, and even if it be possible with more diligence, all the circumstances set forth in the papers in the case, does not doubt that he will give to the clear argument of the defense written by Señor Aspiroz all the attention which, under whatever aspect the case be examined, ought not to be refused it by one who is conscientiously to decide the case. (It is the Document No. 46.)

[Page 451]

It is pardonable if the agent of Mexico should make an especial recommendation to the umpire asking that he give close attention to the opinion of the Mexican commissioner, since, being called on to settle the difference of opinions of the commissioners, it would be almost an offense to his high sense of justice to suppose that he would not study with particular interest the elements of those opinions.

All the questions of the present case having already been treated with that intelligence and attention with which they have in the argument and brief mentioned, it would be a vain presumption on the part of the undersigned to attempt to say anything whatever new and worthy to be on an equal footing with said works.

But, without any such pretension, and on the contrary, asking indulgence for the plainness of this writing, he, who to-day has the honor to represent the Mexican Government before the Commission, is about to try to make only some observations and a demonstration upon the point of view from which he thinks the case should be considered in conformity with the convention, by virtue of which it has been presented.

I.

In order to form an opinion favorable to the claimants, the commissioner of the United States commences by upholding, or rather by taking for granted, that the fund of the missions of the Californias always had an object exclusively religious and not political in any sense.

The contrary is demonstrated with irrefutable historical proofs in the argument of Señor Aspiroz and in the opinion of Señor Zamacona.

But, whatever may have been the character of said fund on account of the intentions of the founders, the American commissioner recognizes that since the expulsion of the Jesuits to whom they (the founders) had intrusted the employment of the properties of which there is question here, the sovereign assumed, by virtue of his eminent domain, the powers necessary to accomplish the execution of the wish of those who had created the fund.

Mr. Wadsworth admits not only that the bishop of California, and before him that various religious corporations, and at least one lay corporation, succeeded one another in the management and employment of the fund solely by permission of the National Government, but also the ample power of the said Government to intrust with this management and employment anyone who in its judgment, being trustworthy, was best able to accomplish the ends for which it was instituted.

It appears, nevertheless, that the American commissioner attributes to the appointment of the bishop of California, by the said Government, and on account of the said charge, a permanent effect and the transmission of a perfect and irrevocable right in the bishop and his successors.

And, as a foundation for such deduction (which is also the foundation of the present claim).he cites the decree of October 24, 1842, which, for that reason, ought to be borne in mind as one of the most important pieces of evidence.

It runs as follows:

That whereas the decree of February 8 of the present year, directing that the administration and care of the Pious Fund of the Californias should redevolve on and continue in the charge of the Government, as had previously been the case, was intended to fulfill most faithfully the beneficent and national objects designed [Page 452]by the foundress without the slightest diminution of the properties destined to the end; and whereas the result can only be obtained by capitalizing the funds and placing them at interest on proper securities, so as to avoid the expenses of administration and the like, which may occur. In virtue of the power conferred on me by the seventh article of the Bases of Tacubaya, and sanctioned by the nation, I have determined to decree as follows:

  • Art. 1. The real estate, urban and rural, the credits, and all other property belonging to the Pious Fund of the Californias are incorporated into the national treasury.
  • 2. The minister of the treasury will proceed to sell the real estate and other property belonging to the Pious Fund of the Californias for the capital represented by their annual product at 6 percent per annum. And the public treasury will acknowledge an indebtedness of 6 per cent per annum on the total proceeds of the sales.
  • 3. The revenue from tobacco is specially pledged for the payment of the income corresponding to the capital of the said fund of the Californias, and the department in charge thereof will pay over the sums necessary to carry on the objects to which said fund is destined without any deduction for costs, whether of administration or otherwise.

It is seen, therefore, that this decree, the foundation of the claim, declares the objects for which the fund in question was destined to be national. It is also seen that it left such funds incorporated into the national treasury of Mexico; but especial attention should be directed to the fact that in no part of the, said decree is mention made either of the bishop or church of California.

How is it, then, that in this decree they pretend to found the right which is alleged?

How, from the fact that the Government of Mexico proposed to continue employing to its beneficent and national end the funds which it declared to be under its exclusive charge, can it be deduced that these funds had to be administered and employed perpetually by the church of the Californias, which Mr. Wadsworth sustains?

If it (the decree) had explicitly and in so many words ordered that the necessary quantities of the proceeds should be paid over to the bishop of California, which the said decree destined to the’objects of the original foundation, nevertheless the title under which the successors of said bishop could have and reclaim such quantities, from the moment when the objects in which these quantities should have been employed in California ceased to be of a national interest to Mexico, would be more than doubtful.

According to the judgment of Mr. Wadsworth, not only did the necessities for which the fund of the missions was destined by its founders continue to exist in the locality we have just mentioned, but also that they had been augmented by the influx of adventurers of the whole world and by the Chinese immigration. The undersigned doubts if the commissioner of the United States expressed this thought hoping that it would be taken seriously, and he is more inclined to suppose, that the commissioner wished to lighten with a joke the dryness of the subject with which he was occupied.

What is there in common between the object of protecting and civilizing the aboriginees of this continent and the converting to Catholicism the Chinese and other heathen European immigrants who, in an avalanche, precipitated themselves upon the rich prize wrested from Mexico, and the treasures of which offered a greater incentive to licentiousness than to the elements of religious advancement?

But, supposing that to-day it were as necessary as before the annexation of California to the United States to employ certain sums for the [Page 453]conversion of the infidels or pagans or protestants to Catholicism, what kind of obligation is the Mexican Government under to furnish these sums? A national one, like that which every sovereign is under to satisfy the public needs? Then it is not from that Government, but from the Government of the United States, which succeeded to all Mexico’s rights and obligations with respect to Upper California, from whom the bishops can ask the fulfillment of such an obligation. Is this of a private character, as Mr. Wadsworth pretends? Whence does it proceed?

It has already been seen that it is not derived from the decree of October 24, 1842, in which there is no mention either of the bishop or of the church of California.

Not from the will of those who established the fund, because they placed it exclusively in the charge of the Jesuits, and not in the charge of anyone who might find himself at the head of a church which, at the time of the foundation, did not even exist.

Not, finally, from the objects to which said fund was destined, because the claimants have never fulfilled them, nor is it probable that they will.

And, nevertheless, for Mr. Wadsworth, the supposed obligation of the Government of Mexico to pay over to the bishops of California a large portion of the proceeds of said funds is of a character so absolute that he compares it to that of an individual in whose power said fund is found, and whom the ordinary tribunals could not do less than condemn to the payment of said proceeds.

But would they do it in such a case unless the claimants should prove their right, or rather their title to them? Evidently not.

And what is the title which those who make reclamation against the Government of Mexico present to this high tribunal?

A decree which gives them none—more than that—which withdrew the only one which the Government had seen fit to give to the ecclesiastical dignitary from whom they pretend to derive the right which they allege; that is to say, the simple administration of the fund of which there is question.

It is to be remembered that the decree of October 24, 1842, commences by reiterating that which was enacted in the one of February 8 of the same year, by which the management of that fund was taken away from the bishop of California, it being declared that its administration and its employment should remain under the charge of the supreme national Government of Mexico, in the manner and terms which it should adopt, in order to fulfill the object which the donors proposed—the civilization and conversion of the barbarians. (Not of the Chinese nor of the Europeans.)

It would be extremely doubtful, if the Jesuits had continued without interruption to discharge the trust of the founders of the so-called fand of the missions, and if the properties which formed it had not gone out of the control of said trustee, whether the said corporation of Jesuits could to-day reclaim for the benefit of Upper California—separated from Mexico—the proceeds of any properties situated in the territory of that Republic.

But when a century has passed since the discharge of said trust by the Jesuits ceased; when, since the time of their expulsion from the dominions of Spain, all their temporalities have been incorporated into the royal treasury; when, by the same decree in which it is pretended [Page 454]that this reclamation is founded, the goods destined to the national object of civilizing the savages ceased to constitute a special fund so that it was confounded with the other public moneys, whose management and employment are the exclusive prerogative of the sovereign; and when, in a word, there is in the bishops of Upper California neither the representation of the Jesuits—of whom they are not successors—nor the authorization of the Government of Mexico, which could not exist, since the said Government lacked the indispensable means of superintending the carrying out of such authorization, which are impossible in a territory now subject to a foreign power, it is scarcely conceivable that said bishops have come to believe that they have any right to make the claim which they have presented to this tribunal.

When did the right which they allege originate? At the moment when Upper California was separated from Mexico? On the day that the exchange of ratifications of the treaty in which said Republic ceded that territory to the United States?

Who at that time enjoyed the right to which the bishops, whose sees did not then exist, now pretend to succeed? Was it an individual? Was it a corporation? Was it the whole of the people of Upper California?

If the first, the individual who possessed the pretended right was certainly not an American, nor could he begin to be an American until after the expiration of one year, according to Article VIII of the treaty of which mention has been made; that is to say, not before the 30th of May, 1849.

If the second, the corporation lost all its rights which it had with respect to Mexico and its Government, because not only were they not reserved in the treaty, but there was not even mention made in it of corporations, care being taken nevertheless to guarantee the rights of private individuals, and this only in their new relations with the United States and not with respect to their rights or interests existing in Mexico.

Finally, if there is question of the collective rights of the people of Upper California, the correlative duties with respect to them passed without any exception to the new sovereign, the prerogatives of sovereignty having been transmitted to it without restriction.

But let us return to the first of these three suppositions, which seems to be that which serves as a foundation for the claim—that is to say, that it was an individual who, by virtue of an ecclesiastical minister, the immediate successor of Bishop Diego, possessed the right which is claimed. Was he really entitled to receive any part of the proceeds of the fund of the missions in May, 1848 or 1849? Had he been receiving any sums by this title up to those years? It is not even intimated by the claimants.

What then is the pretended right to which they were the successors?

Only a vain hope, only a vanishing and perhaps already forgotten illusion.

If the decree which withdrew from the bishop of California the duty of administering and employing the fund of the missions did not say a word as to whether there should be delivered over to the same bishop in the future the sums necessary for the objects of that extinct fund, how could he believe that it would be so for him in the year 1842?

Three years passed without such belief being realized, and the afore [Page 455]said bishop, taking advantage of an accidental preponderance of the church party in the Government of Mexico, obtained in 1845, a promise more explicit, though probably not less illusive.

Such promise was contained in a decree which the claimants have only cited, but which the commissioner of the United States has not thought it convenient to take into consideration in his opinion.

It is dated April 3, 1845—later than the one which is taken as the foundation of the claim—and it runs as follows:

The credits and other properties of the Pious Fund of the Californias which are now unsold shall be immediately returned to the reverend bishop of that see and his successors for the purposes mentioned in Article VI of the law of September 29, 1836 (in order that they may administer and employ them in its objects and other analogous ones, respecting always the wish of the founders) without prejudice to what Congress may resolve in regard to the property that has been alienated.

In this decree there is, as has been said, an explicit promise to the bishop of California; but what is it? Perhaps that there shall be delivered to him and his successors the interests of which the decree of the 24th of October, 1842, speak? No, certainly not.

The decrees of February and October, 1842, had taken from the bishop of California all interference in the management and employment of the funds of the missions, the public power of Mexico exercising the same liberty with which it had before intrusted the said management to the above-mentioned bishop. “Hujus est tollere cujus est condere.”

The decree of April, 1845, a measure of the clerical party, conferred anew on the bishop of California the trust of the Government of which three years before he had been dispossessed; but during this time the funds had no doubt considerably diminished, and so great must have been their diminution at the time of the issuance of the decree that in it the credits are mentioned first; from which it may be inferred that they constituted the greater or most important class of property in hand. These (the properties not sold by virtue of the decree of 1842) were the only properties ordered to be delivered immediately to the bishop of California and his successors. As to the sold properties, Congress reserved the right to later determine what should be deemed advisable concerning them.

Another three years elapsed from the issuance of that decree before the exchange of ratifications of the treaty which separated Upper California from Mexico.

What was done, during those three years, with the remainder of the fund of the missions?

Did the bishop, to whom the property should be delivered immediately after the issuance of the decree, receive anything from it in accordance with its provisions?

Very probably he would only receive the credits which could have but an insignificant value, being in large part evidences of public debt. The rest (if there happened to be more than such credits), it is very probable, might have been consumed in the public expenses of the war with the United States.

If it were so, what better employment could be given to the funds destined for the political and religious conquest of the Californias than the defending of the territory acquired by means in the employment of which those properties had so important a share?

And if in fact the Mexican Government did use the remainder of [Page 456]the fund of the missions to maintain the war against the United States, at the close of which it lost more than half of the national territory, including Upper California, it would be strange if to-day it should be made to pay, for the benefit of the United States, and for a religious sect which is endeavoring to predominate there, not only what they may have taken from said funds, but a perpetual tribute as an income reckoned upon the greatest value that they ever had.

And it is no less strange that this is claimed by invoking the very decree which declares the objects to which those funds were destined to be of truly national interest. The attorney of the bishops (page 10 of the printed argument), in an edifying manner, observes tnat the Duchess of Gandia, having heard an old servant of hers, who had been a soldier in California, speak of the barrenness of that country, of the miserable condition of the Indians, and of the suffering and apostolic labors of the consecrated missionaries for the betterment of that unhappy race, resolved to bequeath a part of her fortune for the aid of those missions, and forthwith he inquires what the pious donor would think if her legacy should finally have been destined to enter into the public treasury of Mexico.

The undersigned answers the question with others: What would the Duchess of Gandia think if the church which was, to be favored with her munificence should cease to belong to her native country; if that country, whose barrenness and poverty had moved her charity, should come to be one of the richest of the world; if those miserable Indians, whose situation she pitied, instead of profiting from the fertility of the the soil, would be driven from it by the new sovereign, and if those holy missionaries, whose apostolic zeal and heroic abnegation she admired and intended to encourage, had been supplanted by the high dignitaries of a wealthy church.?

And when things have so much changed from what they were known to be by the founders of the fund of the missions, is when the bishops of California come to reclaim their participation—more than that—their propriety in them?

And why?

Are they, peradventure, to fulfill the objects of the founders?

Are they about to bring to the unhappy Indians, relegated to the borders of the territory which was theirs, the light of the evangelist and the blessings of Christian charity?

If at least they propose to do it, it would be neither for the benefit of Mexico nor could the Government of that Republic see that the quantities received by the bishops, claimant, were employed for their real objects.

But let us return to the point of departure.

We have seen that in April, 1845, a decree ordered that the credits and other properties not sold of the funds of the missions should be immediately returned to the Bishop of California and to his successors, and it is excusable to say that upon intrusting the administration of such properties to the said bishop, the Mexican Government could scarcely have thought that some strangers not recognized by the said Government, nor named by any intervention on its part, would figure as successors of Bishop Diego, in whose nomination it had a voice.

The only credits and properties whose administration and employment the Government confided to him were immediately either returned, or they were not returned, to Bishop Diego. Whichever it was, the [Page 457]decree of April 3, 1845, should have been executed immediately or it should have remained without any further effect. Afterwards Bishop Diego died and no successor was named in the manner in which he had been named; the war between Mexico and the United States intervened, which was terminated by the treaty of February 2, 1848. Not one word is said in it about corporations, and still less about churches, the United States simply guaranteeing to Mexican citizens who should continue living in the territory conquered by them (the United States) the free exercise of their worship and the secure enjoyment of their properties situated in the same territory.

So the Catholic Church of Upper California did not retain by the treaty of Guadalupe-Hidalgo its character of a corporation recognized by a new sovereign, nor with rights recognized, not only on the part of the government of the nation which the members and pastors of that church had ceased to defend, but even with respect to the properties to which the said church could have believed itself entitled, in the territory in which it was established.

Years passed, and said church continued to pursue a private existence without legal existence in the United States. The Pope, who was the only power with whom it had relations, considered it advisable—of course without any knowledge whatever of the Government of Mexico—to name a new bishop for Upper California, to establish therein another bishopric, and soon afterwards an archbishopric, and to designate for these high offices naturalized citizens of the United States. These changes in and additions to the personnel might of themselves alone have operated so that the Government of Mexico would not have left in the hands of persons thus named the charge of trust conferred at another time upon the Mexican Bishop Diego.

Meanwhile, if the new dignitaries of the church of Calif ornia did not acquire from their immediate predecessor any property or rights through any individual act, as by conveyance or will, one or the other in conformity with the laws of the United States, by reason of office they could not maintain any legal title in the United States while they had not commenced to represent an association recognized in the civil order by virtue of its formal incorporation.

This took place in the year 1854. (See documents Nos. 3 and 10). The legal existence of the Catholic Church of California, in the United States, dates from that time forward; and only from that time forward could that corporation acquire rights and enforce them under the protection of the laws and of the authorities of the country.

Before its formal incorporation this church did not have collective rights, and its members and ministers alone had the legal ability to acquire individual rights. How, then, could the rights which Bishop Diego may have had in 1842 be transmitted to the bishops claimant?

It seems that they pretend to attribute this effect to the canons of the Catholic Church.

But how can such an absurdity be sustained?

The canon law only produces civil effects within the territory whose government gives them such, and neither did the United States upon annexing Upper California make this or any other concession to the Catholic Church therein, nor could Mexico on relinquishing its control over that territory leave the canon law in force therein.

Let it be supposed, nevertheless, that this right continued in full force and effect, of itself, notwithstanding the change of government in the [Page 458]locality of which there is question. Is there in it any provision which obliges a government to place its trust in foreign prelates for the administration and distribution of funds incorporated in its treasury and intended for purposes of truly national interest?

And if there be such a canon law, is there a tribunal not ecclesiastical that would attempt to enforce it?

The attorney for the bishops who understands that it would not be favorable to the interests which he defends to invoke as a title the simple authorization of the Government of Mexico in favor of Bishop Diego, wishes to maintain that the properties which are under consideration belong by absolute right to the Church of Upper California, and that the incorporation of these properties into the royal treasury when the Jesuits were expelled from the dominions of Spain about a century ago, was one unlawful sequestration of the property, and the second incorporation of the same properties into the public treasury in 1842 was another, it being worthy of note that it is on the very decrees of that year that the demand is founded.

So that said attorney energetically repudiates (citing as authority Catholic writers) the principle which considers as public property that which is devoted to the church in countries in which there is but one religion, under the exclusive protection of the state.

As much as might be said upon the above-indicated abstract principle would be foreign to the question which occupies us; it is sufficient to remark that it does not concern this tribunal to call to account the Government of Spain, nor that of Mexico, nor any other for the nationalization of church properties.

The question is simply as to whether the bishops of California have had a right to receive interests on certain properties nationalized, or incorporated into the treasury of Mexico, whether it were done in accordance with law or not.

After the Catholic Church of California had complied with the requisites of incorporation necessary to give it a legal existence in the United States, one of the ministers of that church—the pastor of Santa Clara—: demanded of a private individual the possession of a property known by the name of “Orchard,” which formerly belonged to the mission of Santa Clara.

The lawsuit followed, with all its judicial proceedings, both litigants presenting all the arguments they could to elucidate the questions raised upon the rights of the church of California to the properties which at earlier times had formed the fund of the missions.

Accompanying this argument is a complete copy of the opinion in that case from the work, “Reports of Cases Argued and Determined in the Supreme Court of the State of California,” Vol. VI, p. 325 et pas.

Judge Heyndfelt, in announcing ther final judgment, expressed himself in these terms:

According to all the Spanish and Mexican authorities (which have been well collated in the respondent’s argument), the missions were political establishments and in no manner connected with the church.

The fact that the monks and priests were at the head of those institutions proves nothing in favor of the claim of the church to universal ownership of the property.

* * * * * * *

The lands settled by them were not conveyed to anyone, neither to priest nor neophyte, but remained the property of the Government.

* * * * * * *

Our conclusion is that the plaintiff has no right to the property in question and, therefore, the judgment of the court below is affirmed.

[Page 459]

When competent tribunals have thus decided, treating of property situated in the United States, what should be said of these pretended rights of the church of California against the Government of Mexico for interests on properties situated in Mexico, and, which, far from having been acknowledged as belonging to that church, were explicitly declared to be national?

It would be a monstrous injustice, considering that squatters on properties situated in the United States, and which formerly belonged to the missions, and to which they had no title, were upheld in their possession, if the Government of Mexico be condemned to pay a perpetual tribute in favor of the bishops of California simply because at one time it has seen fit to intrust to an ecclesiastical prelate, subject to its dominion, the administration and employment of some funds which ought to be destined to objects of national interest.

II.

The convention of July 4, 1868, submitted to the examination and decision of this tribunal all the reclamations of individuals, corporations, and companies which, being citizens of the United States, had suffered injuries in their persons or their properties inflicted by the Mexican authorities.

That which is to be ascertained, therefore, in each case, is if any authority of the nation defendant has done an injury to the party claimant in his person or his property.

The first observation which occurs in this regard, on examining the present case, is that neither the Government of Mexico nor any authority of that country has had the slightest notice of the existence of the gentlemen, Messrs. Alemany and Amat, nor of the corporation which they represent.

This corporation commenced to exist legally in the United States, or rather in the State of California, in the year 1854, when the require ments for incorporation were complied with. From that time the said gentlemen could represent the rights and civil interests of their respective churches in the United States; but did the Government of Mexico know anything of it? By whom and at what time was it given notice of it?

Upon this particular there is not the slightest mention in the record.

And is it not truly extraordinary that the persons of whose individual existence or of whose character as representatives of a corporation the Government of Mexico did not have the slightest notice should declare themselves injured?

That the claimants have been injured in their properties by said Government is demonstrated to be entirely false, because neither the fund of the missions—first incorporated into the treasury of Spain and afterwards into the treasury of Mexico as national property—nor the proceeds of that fund, whose employment has remained under the charge of the Government since the expulsion of the Jesuits from the dominions of Spain, have never been the property of the bishops of the church of California.

But, above all, whatever may be the right that the claimants deduce concerning the Pious Fund or its proceeds, nobody will dare to maintain that said right is clear, evident, unquestionable.

Therefore, the fact that the said right is doubtful is enough to show that the claimants can not say that they are injured by the omission of [Page 460]the Government of Mexico to carry it out without the slightest action or solicitude on the part of those interested.

When, indeed, nothing more than a problematical obligation is treated of, as is the one which it is pretended that the Government of Mexico has failed to fulfill, and not of one well defined and explicit, as that proceeding from a contract, it could not be said that an injury had been done to the interested parties with regard to its fulfillment, except when the latter prove that they have asked its performance diligently without having obtained it. Only then ought it to be investigated, whether the refusal of the Government demanded constituted an injury as being unjust or unfounded.

The claimants say that in 1859 (very late to be sure) they presented their claim to the United States.

Such would have been the case; but as the latter Government did not take any steps to prosecute this claim, nor even give notice of its existence to the Government of Mexico; with respect to the latter it was just the same as though it had not been made.

What, then, is the injury of which the claimants complain?

Have they at any time asked of the Government of Mexico the recognition of the right which they pretend to have to the proceeds of the fund of the missions?

Not only have they not proved, but they do not even allege having made such a demand.

And could they reasonably expect that, it not having occurred to themselves to take any action to press their pretended right (even though they did not think that they had it), the Government of Mexico should have begun to punctually pay them the interests which they now seek to collect since the year 1848?

Such an exaggerated pretension could not be qualified except as absurd.

Supposing the condition in which the funds were in the year 1845, supposing the complete change in the mode of existence of Upper California produced by the war and the treaty which terminated it, and suppose finally that by virtue of this change the objects to which said funds were destined in Upper California were no longer of a national interest for Mexico, nor that the Government of said Republic could superintend their employment, it is the most natural thing in the world that the said Government would not in any manner think that the ministers of the Catholic Church of Upper California would allege rights to the said funds.

How then can the ignorance, or the nonperformance, of an obligation, which it did not suspect being under and which the claimants had never demanded, be classed as an injury on the part of the Mexican Government?

If there was question of a formal agreement contracted by the Government of Mexico in favor of the claimants in incontrovertible terms, nevertheless it would not be equitable to listen to the complaint of those who had not theretofore diligently endeavored to procure the recognition and execution of such contract; what should be said therefore, when a decree, in which there is no mention of the entity represented by the claimants, is alleged as a foundation for the demand? What should be said when that entity had ceased to exist in the manner in which it did exist when the Government of Mexico turned over to it, not the titles to, but only the management of, the properties whose [Page 461]proceeds are claimed—circumstances and conditions affecting this confidential trust, as may be understood by reading the decree of September 29, 1836—and, finally, what should be said when the right alleged, although it might exist, is certainly not clear, obvious, and unquestionable? It would be necessary to change the meaning of the word injury in order to say that anything that merits this name had been practiced on the part of the Government of Mexico in the present case.

Wherefore, even on the absolutely unfounded supposition that the bishops of California could deduce any right to a part of the proceeds corresponding to the properties of the fund of the missions sold by virtue of the decree of October 24, 1842, their demand is not open to the investigation and decision of this tribunal, because it is not founded upon an injury done to the citizens of the United States by the Government of Mexico, nor since February 2, 1848, when the person from whom they pretend to derive their right had no citizenship which could be taken into account, nor since 1854, when they began to have legal representation, nor at any other time prior to the exchange of ratifications of the convention of July 4, 1868, because they have not had recourse to that Government with their pretensions, as was indispensable that they should previously in order that the justice of the claim might be examined. Thus, then, without taking into consideration the foundations of it, the claim should be rejected.

Eleuterio Avila.