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Petition for rehearing.

[Translation.]

Thadeus Amat and Joseph Alemany v. Mexico. No. 493.

The Government of Mexico does not doubt that the honorable umpire has rendered the decision in this case in accordance with the dictates of his conscience; but it believes it to be its unavoidable duty to present the important reasons which perhaps the umpire did not take into consideration when he rendered his judgment, reasons which establish the basis for the necessity of a rehearing.

The undersigned has therefore received instructions from his Government to immediately solicit the rehearing of this case, and he having found it convenient to make the petition before the functions of the commissioners have ceased, will only indicate in this document some of the reasons that exist for the rehearing, reserving the right to enlarge upon them when this motion shall have been granted.

The first point to which the attention of the umpire should be called is that, whatever the right of the petitioners might be for themselves or as representatives of a corporation to a part of the Pious Fund of the Californias, there is no injury to be regarded in this case, since the Government of Mexico has not done any injury to the claimants by not recognizing in them such a right, it not having been required to do so.

“The Pious Fund,” says the memorial, “being the property of the church of both Californias, Upper and Lower, and being devoted to the propagation of the Catholic faith in both countries, it would heme [Page 462]been necessary to divide it when Upper California was separated from the dominion of Mexico and was annexed to the United States. This fact and the consequent separation of the ecclesiastical jurisdictions should have made necessary a proportional division of the interests and proceeds which ought to have accrued after the treaty of Guadalupe.”

This part of the statement made by the claimants points out two different periods at which the division of the fund ought to have taken place, viz, when the territory of Upper California was separated from Mexico and when the ecclesiastical jurisdictions were separated.

Would it be reasonable to claim that at either time it was obligatory for the Government of Mexico to take steps to bring about the apportionment of the fund?

When the treaty of peace between the Republics of Mexico and the United States was celebrated, by which treaty the first of said Republics ceded to the latter part of its territory, it became the duty of the United States Government to secure all the rights and interests of those who were about to become its citizens, and no omission in this respect can be charged against the Mexican Government.

When later the churches of Upper and Lower California were separated, it was the duty of the representatives of the former to take steps in order that the apportionment of the fund might be brought about.

The very terms of the memorial presented by the claimants clearly show that no formal step was ever taken in that direction.

“But this apportionment,”it says, “was never made, and the claimants allege and demand that it be made, taking as a basis the respective populations.”

No matter how just it might be to make an apportionment, since it was never demanded, and now, after the exchange of ratifications of the convention of July 4, 1868, for the first time the interested parties allege and demand that it ought to be made, there has been no injury on the part of the Mexican Government.

Neither was the convention negotiated nor the Commission created in order to liquidate debts or apportion undivided properties, but solely and exclusively to repair injuries; and evidently in this case there is no injury to repair.

If, notwithstanding all that has been said, it be insisted that it is part of the Commission’s duty to make the apportionment solicited, justice and equity demand that it first be determined what is to be apportioned, whether the properties of the fund in question or its proceeds, and in what proportion such division ought to be made.

The Pious Fund of the missions consisted of rural and city estates, part ownership in others, capital invested in annuities, or mortgages upon estates and other assets.

By the second article of the decree of October 24, 1842, it was ordered that the estates and other properties belonging to the Pious Fund of the Californias be sold for the price which their annual proceeds represented, capitalized at 6 per cent, and that the public treasury would recognize at the said rate of 6 per cent the sum produced by those sales.

In no way is it to be understood that amongst said properties to be sold the assets (créditos activos) of the fund were to be included, because although mentioned in the first article of the decree, they are not referred to in the second; since it would not be rational to suppose [Page 463]that the Mexican Government would offer for sale credits of which it was itself the debtor, and most of which bore an interest of less than 6 per cent, and others bearing no interest at all; and, lastly, because in the later decree of April 5, 1845, it was ordered that the credits and other properties which remained unsold should be returned to the Bishop of California, which clearly proves that such credits had never been offered for sale.

The Government undertook to pay 6 per cent, not upon the nominal value of the properties belonging to the Pious Fund, but upon the total produced by those whose sale might be effected, and since the sale of the credits was not ordered, nor does it appear that it was made, but quite the reverse, the obligation of the Government of Mexico to pay interest upon such credits can not be deduced from the decree of 1842, and they ought in any event to be separated in this respect from the divisible interest.

The justice of this separation is still more clearly perceived by noticing that the greater part of said credits consisted of unpaid interests, and which certainly yielded no annual income, which was the basis for estimating the values in conformity with the decree of October 24, 1842.

The first of the assets against the public treasury is a capital of $20,000, which it acknowledged with an interest of 5 per cent per annum, said $20,000 having been deposited in the treasury during the time of the Spanish rule. Its interests were paid until the year 1812, but since then to February, 1842, they have not been paid, and amount to $29,166 5 reals 4 granos. (Inventory of Don Pedro Ramirez.) These twenty-nine thousand and odd dollars yielded no annual income.

There follows another capital of $201,856 6 reals 4 grains at the same rate of interest (5 per cent), which was borrowed by the Spanish Government to meet its expenses. The interest on this amount was also paid until the year 1812, but not afterwards, and the accrued interest down to February, 1842, amounted to $294,434 2 reals 5 granos. (Inventory above cited.) These interests yielded no annual income either.

The third item of credits against the public treasury is $162,618 3 reals 3 grains which was acknowledged by the “Tribunal of the Consulate” at 6 per cent per annum since the year 1810, and which had remained a burden upon the public treasury. Two hundred and six thousand five hundred and twenty-one dollars 2 reals 11 grains were owed as back interest. Neither did these interests produce any annual income.

Thirty-four thousand eight hundred and forty-two dollars 4 reals were also owed as interest upon two other debts.

There was also a debt of $68,160, another for $7,000, another for $3,000, and an acknowledgment for $15,973 5 reals, which bore no interest and consequently produced no annual income.

If, by the decree of October 24, 1842, the Government of Mexico only held itself responsible to the Pious Fund of California for the amount of 6 per cent per annum on the total produced by the sale of the estates and other properties belonging to said fund (its assets being excluded), the basis for the value of the property being represented by 6 per cent of its annual income; if, moreover, supposing said assets to be included, their unpaid interests did not produce any annual income; and, finally, if far from there being any proof that such credits [Page 464]were really sold, it appears that in April, 1845, they were ordered to be returned to the Bishop of California, they ought not to be included in the capital whose interests are to be divided by virtue of the decree of 1842.

This does not mean to say that, supposing that the right of the claimants to a part of the properties of the fund of the missions may be acknowledged, they are not to have a right also to part of the already mentioned assets; but only that the division of the latter can not be made in conformity with the above-mentioned decree.

By the decree of April 3, 1845, the credits and other properties not sold were to be returned to the bishop of California, and, with respect to those which were sold, it was agreed that Congress should make disposition afterwards. From the latter decree spring the rights which the bishop of the Californias could have enforced in 1848, and which his successors, the claimants, could later on have derived, since it was in force at the time Upper California was separated from Mexico.

They could have demanded the evidences of debt and that there be turned over to them the portion due them of the proceeds of the property sold.

What else could they expect that the Mexican Congress would decree concerning such property?

How could it be believed that the Government of Mexico would constitute itself a perpetual tributary (tributario) of a foreign church?

It would have preferred, without doubt, to make any sacrifice in order to free itself at once from such a burden, even if it had considered it just.

But this it could not be under any aspect, since by it it would be obliged to pay a part of its public debt or its interest in preference to the rest.

The most advantageous settlement that the bishops of California could have made with the Government of Mexico would have been that the latter should turn over to them a part of the proceeds of the properties of the Pious Fund sold in conformity with the decree of October, 1842, and the evidences of public debt which belonged to them proportionally.

If Upper California had continued to belong to Mexico after 1848, and only by reason of local contingencies the jurisdiction of its bishop had been limited to that region, he could not, in strict justice, have demanded of the Government of Mexico more than the delivery of the part proceeds of the properties sold of the fund of the missions which it was his right to administer, and the evidences of public debt proportional to it.

The greater part, almost the whole, of that debt was contracted by the Spanish Government, and the Government of Mexico has only been responsible for its payment as successor thereto.

It might be contended that the Government of the United States, having succeeded to that of Mexico in the rights and obligations which the latter derived from Spain with respect to Upper California, should to-day be responsible for said indebtedness. But even if it were not so, evidently neither the Government of Mexico nor that of the United States has intended to submit to this commission claims for the collection of the public debt.

The interposition of these Governments in favor of their respective citizens is for the double object of repairing the injuries done by the [Page 465]authorities and suffered by said citizens, and to effect a complete, perfect, and final settlement of every claim which might proceed from transactions of a date prior to the exchange of ratifications of the convention of July 4, 1868 (articles 1 and 5).

The undersigned sincerely believes that the claimants in this case can not complain of an injury done to them by the Government of Mexico from the 2d of February of 1848 to February 1,1869, because they never notified it of the rights which they allege before this Commission.

If at any time (as the umpire seems inclined to believe, bearing in mind the position and character of him who alleges it, who is the bishop of San Francisco) he demanded from the Mexican Government the payment of the interest or the capital of the Pious Fund, and said Government replied that it could not grant such petition; the umpire also recognizes that it is not possible to form any judgment on the subject because of the absolute lack of documentary evidence.

But since, for reasons not understood by the undersigned, this case is considered as one of injury and coming, therefore, within the scope of the convention of July 4, 1868, at least it seems that in conformity with its spirit, the case should form the basis for a complete, equitable, perfect, and final settlement.

If the interested parties had taken the proper steps for this settlement, through the mediation of the Government of the United States, it is very probable that it would not have been relatively more onerous for Mexico than that reached by it with the Government of Spain concerning the Philippine fund of December 7, 1844, and which the claimants have cited in support of their pretensions.

The want of diligence on the part of the interested parties, which ought to be prejudicial to no one more than to themselves, increases to-day the burden of the depleted Mexican treasury; but, at least, the the settlement of this debt ought to be reduced to reasonable bounds and have a definite character.

Several of the donations which helped to form the Pious Fund were especially intended for the missions of Lower California, and the undersigned will present in evidence the deeds relating thereto, which he has just received from his Government.

If formerly no observations were made nor evidence presented by the defense concerning the amount claimed in this case, it was not because the Government defendant acknowledges such an amount, but because the question as to whether this case was by its nature one proper for the consideration of this commission was previously to be determined.

How was it possible, for instance, that said Government could acknowledge its responsibility for bad debts of individuals to the Pious Fund and to the payment of interest at 6 per cent in lieu of interest at 5 per cent on debts contracted by the Spanish Government?

How in justice could it be claimed that the fund, having lost the lawsuit which it conducted with respect to the Ciénega del Pastor, said Government should make good what, without the least neglect on its part, was lost to the fund on that account?

And notwithstanding all this, account has been taken of it in the claim.

No; the Mexican Government hoped that this case would be decided to be outside the jurisdiction of the commission, and for this reason [Page 466]had refrained from disputing the statement of amounts made by the claimants.

In deciding the case of Edgar Keller (No. 95) the claimant was invited to present proofs which he had omitted with respect to the true amount of his claim. Why, then, should the right be denied the Mexican Government, in this case, to take part in the liquidating of a debt for which it did not believe itself obliged to answer before this commission?

On account of the foregoing, the undersigned considers that the equitable and just basis for the division of the Pious Fund of the Missions, which the bishops of Upper California have demanded before the commission, would be to deduct that which was especially designed for Lower California; to estimate the cash values of the estates and other properties, sold in conformity with the decree of October 24, 1842; and that the Government of Mexico pay the portion of this sum corresponding to Upper California and interests from said date to the time of final settlement.

A correct estimate of the available assets of the fund in February, 1842—that is to say, a few months before the above-mentioned decree—seems to be the following:

Value corresponding to the annual rent of $2,625 of houses Nos. 11 and 12 Vergara street $43,750
Id. corresponding to the rent of $2,000 of the hacienda de Ibarra 33,333
Id. corresponding to $12,705, for the rent of the three estates leased to Señor Belaunzaran 211,750
$288,833
Capital for which the hacienda Sta. Lugarda and its annexes were mortgaged 42,000
Id. for which the hacienda Arroyozarco was mortgaged 40,000
370,833

If half of this capital were to be applied to Upper California, its share would be $185,416.50.

As regards the assets of the fund represented by debts against private individuals, it is not conceivable how the Mexican Government could be held responsible for them.

In no way would it be just to exact from it the payment of those which were not recoverable, as according to the inventory of Sr. Ramirez most of them were, except the debt of $13,997, 4 reals, owed by Sr. Vertiz.

Adding, therefore, half of this amount to the share assigned to Upper California, the total would be $199,414.

This sum, with interest at 6 per cent per annum since October 24, 1842, would be the most that the Government of Mexico should be obliged to pay to the bishops, plaintiffs, as a final settlement.

With respect to the credits of the fund against the public treasury prior to that date, the most that could be done would be to grant the claimants the right to half of said credits, so that they might take steps for their recovery just as any other creditors of the treasury of Mexico.

The undersigned respectfully asks of the umpire that, being willing to open this case for a new examination under the points of view indicated, he permit him to enlarge upon the reasons which demand a modification of the decision.

Eleuto. Avila.