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[Page 467]

Argument for a rehearing.

[Translation.]

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

§ 1. While petitioning for a rehearing, on the 29th of January last, of the present case by the commissioners, the undersigned offered to develop the grounds for his motion.

§ 2. Hoping that the umpire, upon completing the difficult task which he has with such good will endeavored to fulfill, will not refuse to correct the errors into which he may have fallen, the undersigned asks him to consent to devote a few moments to the perusal of this document; and in case he finds in it anything which merits his attention, he will not deny the Government of Mexico the revision which it solicits, nor permit it to suffer greater burdens than those which in justice and equity, and in accordance with the convention of July 4,1868, it must bear.

§ 3. The points to which the undersigned especially desires to call the umpire’s attention are the following:

I.

The Government of Mexico did not do the claimants any injury by failing to recognize in them a right which, if they had, they did not try to enforce at the proper time and in the manner and with the diligence necessary.

II.

By the decree of October 24, 1842, the Government of Mexico did not obligate itself to pay 6 per cent on the nominal value of the properties belonging to the Pious Fund of the Missions of the Californias, but only upon the total sum produced from the sales of the estates and other properties which might be made by virtue of said decree, estimating their value “by the capital represented by its annual product capitalized at 6 per cent.

III.

By the later decree of April 3, 1845, the assets and other properties belonging to the Pious Fund were ordered to be returned to the bishop of California and his successors, further providing that those which remained unsold should immediately be turned over to him in order that he might administer and employ them to their proper ends according to the law of September 29, 1836, which law had been repealed in this respect by the decree of February 8, 1842.

IV.

If the claim submitted by virtue of the convention of July 4, 1868—that is to say, the one presented within the time designated and in the way of a “complete, perfect, and final settlement”—is to be decided, it ought to be decided upon the right of the church not with respect to the proceeds or income of the fund, but to the fund itself, to the possession of which the representatives of said church claimed to have a right, and should any part of the properties of the fund be adjudged to them it ought to be in the nature of a final settlement.

[Page 468]

V.

The commission can not decide with respect to the credits of the fund against the public treasury of Mexico contracted as loans and before the bishop of the Californias was deprived of the administration of said fund.

I.

§ 4. This argument would seem out of place were it to demonstrate that the fund here treated of never did by any exclusive right belong to the Catholic Church of the Californias, nor that the Government of Mexico ought to have considered itself under obligation to devote its entire value, or a part of it, or a part of its proceeds, to the benefit of the inhabitants of a region which at that time did not belong to said He/public; but, at least, there is one thing that no one will undertake to deny, and that is that neither the right which the claimants seek to enforce before this commission, nor that which it has conceded them, has ever been able to be considered as clear, evident, and unquestionable.

§ 5. Because, who can maintain that the archbishop and bishops of Upper California ought to receive from the Government of Mexico the whole of the fund of the missions and its proceeds which were not delivered to Bishop Diego, which was the claimant’s allegation in 1859 and in March, 1870?

§ 6. Nor how could the following proposition be held as an indubitable fact since the 30th of May, 1848?

The Catholic Church of Upper California has a right to one-half the interest at 6 per cent on the total nominal value of the properties, debts, and interest not paid to the fund of the missions on February 28, 1848.

§ 7. Before the American commissioner had for the first time given expression to this view, absolutely no one had ever conceived such an idea. The claimants themselves said, in July, 1859 (See No. C), that they believed that the Mexican Government was indebted to them in not less than the total value of the Pious Fund; on the 30th of March, 1870, they alleged that “they had a just claim for a large amount of money, to wit, for three million dollars, and that they had a right to the possession of the whole fund” (No A), and Still later, on December 28 of that year, the claimants so expressed themselves in their memorial:

Whatever be the method of apportionment adopted, the share corresponding to the Catholic Church of Upper California could not be less than seven-tenths of the whole.

§ 8. And, nevertheless, the umpire has decided that “there can be little doubt that Lower California needs the beneficial assistance of the Pious Fund as much as or more than Upper California, and that an equal division of the interest seems to be most just.”

§ 9. The right alleged before the commission being, therefore, so doubtful that not even the claimants themselves could define it, how can blame be attached to the Government of Mexico because it did not recognize such right of its own motion?

§ 10. Even in treating of an obligation to deliver an ascertained sum to an ascertained person, if he does not take steps for its recovery, its [Page 469]simple omission can not properly be said to be an injury. How, therefore, can the omission to pay over an unascertained quantity to a person or persons equally undetermined be considered such?

§ 11. And if the difference existing between the obligations of private persons, whose individuality never changes, and those of governments, which change form, is taken into consideration, then such charge would have still less foundation.

§ 12. In order that this might be so, it would be necessary that at the time Upper California was separated from Mexico the Government of that Republic was actually paying to the Catholic Church of that part of the country a sum specially designed for its use, and that there was no reason whatever for doubting that it ought to continue paying said sum after the separation; and even in that case it could be said only with excessive hardship that it was bound to make such payment without anyone soliciting it, because that this might be so, it would have to commence by inquiring who the person was, legally entitled to receive it, and even to incur the expense necessary for the remission of the sum of which it might consist.

§ 13. But since for six years before Upper California ceased to belong to Mexico the fund of the missions had ceased to exist in fact and no sum was paid to anyone on account of it; since there was no law which obliged the Government of Mexico to pay any determined or undetermined sum to the bishops of the Californias, and much less any provision or agreement to set aside a determined portion for Upper California, and since, finally, such bishop did not exist, nor did any person assert the alleged right of that church, it is more than a hardship—it is a veritable injustice—to charge the Mexican Government with the violation of rights. Certainly no government in the world can be charged with violation of rights under such circumstances.

§ 14. It has been said on the part of the claimants that the true scope of the convention of July 4, 1868, was to submit to the commission “all the claims presented, etc., for damages, either to their persons or rights of property, sustained since the date of the treaty of Guadalupe-Hidalgo, proceeding from acts or wrongful omissions of the authorities, etc.”

§ 15. But what is here contended would add in a very arbitrary manner to the text of the convention, which does not speak of damages, but of injuries, not of omissions, but only of acts (injuries made, etc.). Everybody knows, and the claimants themselves have said in some of their arguments, that there can be damage without injury, “damnum absque injuria,” and this commission has decided in a great number of cases that although the interested parties had suffered damages or could have rights against the government sued, no injury had been done them, and their complaints could not, therefore, in accordance with the spirit of the convention, be considered.

§ 16. With respect to omissions, even in the text improvised by the claimants it is necessary, in order that they may be a proper subject for the consideration of this tribunal, that they constitute a notorious wrong—that is, that they imply the violation of an unquestionable right or the failure to comply with a clear and well-defined obligation, or that they consist in positive acts, as would have been in case a petition duly presented requesting the acknowledgment of such rights herein considered had been denied.

§ 17. All that there is in the evidence upon this point is the statement [Page 470]made by one of the claimants, the archbishop of San Francisco, to the effect that “when he was in Mexico in 1852 he asked the Government to turn over to him the amounts or property of the Pious Fund, and having-received no reply he repeated his request until he was officially notified that the Government could not accede to it;” that is, to a vague petition concerning sums of money and property.

§ 18. Without questioning the truth of said statement, the undersigned can not do less than designate the action of Mr. Alemany as informal, because neither the demand of which there is mention nor the reply made to it seems to have been in writing, as has been observed by the umpire, and because in July, 1859, it was told the secretary of state, on behalf of the claimants, that taking into consideration the difficulties in which the Government of Mexico found itself, there had been a delay in making the application to it for payment (No. “G” should be “C”); which proves that they did not consider the petition before referred to as formal, if, in effect, any was made by the person so affirming, and who, no matter how respectable he may be, is undoubtedly interested in the claim.

§ 19. It has also been alleged that even if some claims have not been covered by the convention they ought to be considered and decided by this tribunal, because otherwise it would result that the Government of Mexico would remain absolutely discharged of all the claims of whatever class, while satisfaction could only be had of those proceeding from injuries to person or property.

§ 20. This observation refers to the article by which the two Governments agreed to consider the result of the proceedings of this commission as a complete, perfect, and final settlement of every claim presented or not presented proceeding out of transactions of a date prior to the date of the exchange of ratifications.

§ 21. But this does not mean that every claim should be specially allowed or disallowed, since in the last part of article 3 it was provided that the commissioners—or in case of disagreement, the umpire—should decide whether a claim had been duly made, presented, and submitted to the commission.

§ 22. In the exercise of this power the commissioners and the umpire have omitted to consider several claims, not because they denied to the interested parties the rights which they sought to enforce, but leaving the rights which they had intact, and simply declaring that in such cases there was no injury to repair.

§ 23. Thus, for example, in claims arising out of forced loans which were not considered by the present umpire because such loans imposed upon American citizens in Mexico did not constitute an injury, surely the right which they might have had to be repaid the value of such loans has not been denied to the claimants.

§ 24. In the decision rendered in the case of Treadwell & Co., No. 149, the umpire has thus expressed himself:

The umpire can not doubt that, if well founded, the claims will be finally paid by the Mexican Government, to which, the claimants state in their memorial, they have never been finally presented.

§ 25. The same could have been declared in this case, and the undersigned asks that it be so declared, without depriving the claimants of the right, which they may have, to a share of the Pious Fund of the Missions.

[Page 471]

II.

§ 26. But if the umpire should find in this case any injury to be repaired, done by the Government of Mexico since February 2 or May 30, 1848, or shall he believe that the division requested by the claimants ought to be made by this commission, he ought very carefully to investigate whether on the above-mentioned dates the Government of Mexico was under any obligation to the Catholic Church of Upper California.

§ 27. The last laws relative to said fund were, that of February 8, 1842, that of October 24, of the same year, and that of April 3, 1845.

By the first of these the care and administration of the fund were turned over to the Government, as they had been until the close of 1836, when they were intrusted to the bishop of the Californias by the second; the sale of the productive properties of the fund was ordered so as to avoid the expense of administration, and by the third the properties which had not been sold were ordered to be returned to said bishop, and the right to dispose of those sold was reserved to Congress.

§ 28. With respect to the decree of October 24, 1842, the following points should be examined:

A.
What were the properties belonging to the Pious Fund of the Californias ordered sold by its second article besides the estates?
B.
What was the price assigned to the estates and other properties which were to be sold?
C.
What was the total amount upon which the obligation to pay interest at 6 per cent was imposed upon the public treasury?

A and B.

§ 29, The properties of the fund consisted of the following:

Country real estate.

Money invested on mortgages on country real estate.

A “censo enfiteútico” upon city real estate.

Debts of private parties in favor of the fund.

Debts against the national treasury.

§ 30. The objects for which the decree herein referred to was made were undoubtedly two: First, that the fund should produce an income without deduction on account of expense for administration or any other; and, second, to enable the Government to obtain advantages with the proceeds of the sale of such properties.

§ 31. The first of these objects is textually set forth in the preamble of the decree; the second is so obvious that no one can place it in doubt.

§ 32. When by virtue of the decree of February 8, 1842, General Valencia, who had been appointed administrator of the properties of the fund, demanded the titles of the property, Señor Ramirez, who then administered them as attorney in fact of the bishop of the Californias, said to him under date of March 4 of that year:

I hope that you will tell me, for the sake of the fund, what means you have adopted to secure your contracts, when you yourself did not have any, and on account of which a great loss will result to it, because I must in any event obtain the money necessary for the sacred purpose to which the Government applies it, and [Page 472]which was the will of the testator, if interpreted with the prudence and patriotism necessitated by the actual condition of affairs. (No. 15, Exhibit “A,” pp. 19 and 20.)

It seems that the purpose to which this letter referred was the defense of the integrity of the national territory.

§ 33. Therefore, if the Government, in order to obtain the resources which it needed, realized upon the saleable properties of the fund less than their real value, it does not seem just to burden the fund with the consequent loss; but neither would it be just to hold the Government responsible for properties from which it was not able to derive any benefit because they had no cash value.

§ 34. Even the American commissioner has recognized this principle of justice and equity in his opinion in favor of the claimants.

“It will be seen,” says he, “that I take no account of the estate of Ciénega del Pastor because it was attached and held by Sr. Jauregui, and there is no evidence in this record that the Government ever obtained the property or derived any profit from it”.

§ 35. Thus, therefore, the decree of October 24 ought to be interpreted in such a manner that by it the Pious Fund should not suffer any loss nor that the Mexican treasury should feel any burden. The properties of that fund ought to be worth the same after the decree as they were before it—no more nor less.

§ 36. In order that this might be so, the same decree adopted the most just method which could be adopted to determine the cash value of these properties.

§ 37. Considering that 6 per cent would have to be paid upon such value, this value could not be other than what the properties represented by their proceeds capitalized at 6 per cent. For example, the estates of Santa Lugarda and its annexes were mortgaged to the fund for $42,000 at 5 per cent per annum. If the Government should have been obliged to pay 6 per cent upon the same capital, there would have resulted a gain to the fund and an unjust loss to the treasury of $420 per annum.

§ 38. But in conformity with the decree it could not be so, because the two following operations would have to take place: First, $42,000 at 5 per cent produce $2,100 annually; second, $2,100 interest at 6 per cent represents $35,000. Result: The public treasury would acknowledge an indebtedness in favor of the fund of $35,000 at 6 per cent, in lieu of $42,000 at 5 per cent, the fund receiving, therefore, the same amount as before, no more, no less.a

§ 39. For the computation of values upon this basis, established by this decree, there is a necessary condition that the properties to which it refers should have an annual income, because the only thing which the Government promised to do was to see to it that these proceed, were not less than those which the fund received previous to the decrees and not to give it those which it did not have.

§ 40. The advantage for the fund was to consist in not incurring any expense of administration, and for the Government in making use of the proceeds of the sale for its momentary necessities.

[Page 473]

C.

§ 41. Therefore, it follows that in order to collect the interest accrued by virtue of the decree of October, 1842, the claimants ought to have proved, not what the nominal value of the properties of the fund was, but what was the total produced by the sales made in conformity with said decree.

§ 42. When its 3rd article pledged the revenue from tobacco “for the payment of the interest corresponding to the capital of the Pious Fund of the Californias” it undoubtedly referred to the capital which would bring in an income in accordance with said decree, that is to say, to the capital produced from the sales of the properties which at the time produced annual incomes, estimating its value by that which corresponds to said products capitalized at 6 per cent.

§ 43. To interpret that article without relation to the preceding one is contrary to the principles of equity, which does not permit one party to better his condition to the detriment of the other. “Natura non partitur aliquem locupletio rem fieri cum alterius jactura.” (L. 206, de Reg. jus.)

§ 44. To condemn the Government of Mexico to pay interest on nominal values and even upon doubtful assets, which had no value and which produced nothing at the time in question, is clearly to make the fund of the missions richer than it then was at an enormous cost to said Government.

§ 45. A court of equity, such as is this commission, can not proceed against the fundamental principle of natural equity. A learned judge can not interpret a part of an instrument without reference to its object and to the fundamental idea of its text.

§ 46. The first steps toward ascertaining the obligations contracted by the Government of Mexico in virtue of the aforesaid decree must be, therefore, to determine the cash value of the properties belonging to the fund of the missions of the Californias by the amount represented by their annual proceeds capitalized at 6 per cent.

§ 47. In accordance with the detailed inventory delivered by Señor Ramirez, attorney for the bishop of Californias, to the administrator of the fund on the 28th of February, 1842, in consequence of the decree of the 8th of the same month and year (eight months before the 24th of October), the following settlement may be proposed:

property held in emphyteusis.

Interest. Capital.
The fund received in this manner by the disposition made of the houses Nos. 11 and 12 Vergara street and of an outbuilding in the Betlemitas alley, $2,625 annually, which represents, at 6 per cent, $43,750. $2,625.00 $43,750.00

city properties.a

Interest. Capital.
The first mentioned in the inventory is the estate Ciénaga del Pastor, whose value is not to be taken into account for the reason set forth in the opinion of the American Commission. (§34.)
The estate San Pedro de Ybarra was lented for $2,000 annually, which represents, at 6 per cent, a capital of $33,333⅓ $2,000.00 $33,333.33⅓
[Page 474]The estates Custodio, San Agustm de los Amoles, and outlying properties yielded $12,705, which, at 6 per cent, represents a capital of $211,750. $12,705.00 $211,750.00
Secured by mortgage.—The estate Sta. Lugarda was mortgaged to the fund for $42,000 at 5 per cent, the annual proceed of which, $2,100, represents, at 6 per cent, a capital of $35,000. 2,100.00 35,000.00
$19,430.00 $323,833.33⅓

§ 48. The Pious Fund owned no other properties besides those mentioned which actually yielded an annual income, and, therefore, according to the decree of October 24, 1842, the public treasury of Mexico only acknowledged itself indebted to said fund in the sum of $323,833.33⅓,a which at an interest of 6 per cent would produce annually $19,430.

§ 49. Therefore, according to this decree, there corresponds to the church claimant an annuity of but $9,715.

§ 50. But it will be said that no matter how little the claims of the Pious Fund against private individuals may be worth, it was not just that the fund be deprived of their value, whatever it might be, and that they be incorporated into the national treasury of Mexico, the former losing forever all right to receive any revenue therefrom.

§ 51. Certainly it was not the object of the decree to confiscate the assets of the Pious Fund; and inasmuch as equity does not permit of the improvement of the condition of this fund, neither does it permit of its deterioration.

§ 52. It is necessary therefore, in order to proceed justly and equitably, to find a means to avoid both of these extremes, which are equally opposed to natural equity.

§ 53. It would be as unjust to require of the Mexican Government the payment of interest upon capitals which were not yielding any when they were incorporated into the national treasury and upon debts which could not be collected as it would be to declare these capitals and these debts totally lost to the fund.

§ 54. In order to proceed justly it is necessary to examine one by one the sums incorporated into the treasury of Mexico, bearing in mind that the meaning of the decree of incorporation was neither to decrease nor increase the amount of the fund, but simply to do away with the expense of administration and to afford resources to the Government.

§ 55. If the object of the decree had been to give to the fund more than it had had, to guarantee all debts in its favor, however irrecoverable they might be, and to tax the national treasury with the payment of interest upon amounts which previously yielded nothing, and at a greater rate than that apportioned to some of the capitals, the decree would have been enacted simply in these terms:

All properties and assets of the Pious Fund of the Calif ornias shall be incorporated into the national treasury, which will recognize an indebtedness at 6 per cent on the entire amount which they now represent.

§ 56. But since, instead of this, the decree directed that the acknowledgment [Page 475]of an indebtedness at 6 per cent would be only on the amount produced by the sales of real estate and other properties for the sum which their annual proceeds represent at 6 per cent, there is no doubt that there was no intention of taxing the public treasury with the payment of interest upon amounts which had not previously yielded any, nor with an increase of the rate of interest on amounts whose proceeds had been less than 6 per cent.

§ 57. What, then, will be asked, was the object of article 3 of the decree?

It was to insure the payment of interests—referred to in article 2—on the properties which constituted the capital of the fund, in conformity with that article—of the properties whose administration was a source of expense to the fund, but which produced regular revenues because the Mexican treasury was not in so flourishing a condition that it could not only insure the fund against losses, but increase it at its own expense with proceeds which formerly the properties had not yielded to it nor would subsequently yield to the treasury.

§ 58. Consider, with an unprejudiced mind, how absurd a different interpretation of said article would be.

§ 59. “The revenue from the tobacco,” it says, “is hereby specially pledged for the payment of the interest on the capital of said fund of Californias, and the director of the office (tobacco revenues) will deliver the necessary amount for the fulfillment of the objects for which said fund is intended, without any deduction for costs of administration or for other purposes.”

§ 60. Now, then, wny should it be construed that the interest corresponding to the capital of the fund should be 6 per cent of the entire nominal value of the principal and interests and assets of the fund?

§ 61. Does not the decree immediately before say that only that sum, which its annual proceeds capitalized at 6 per cent would represent, would be acknowledged at 6 per cent as the capital of the fund?

Therefore by interests corresponding to the capital of the fund is to be understood those which correspond to 6 per cent on the capital which yielded annual proceeds, said capital being the only one whose administration occasioned expense.

Any other interpretation is arbitrary, because it has no foundation either in the letter or in the spirit of the decree, and is contrary to natural equity because it would enrich the fund with serious loss to the Mexican treasury.

§ 62. The most that can be said with respect to the assets of the fund is that the state of those incorporated into the national treasury will be neither improved nor injured from what it was prior to their incorporation.

Let us see, now, what was this condition.

§ 63. The undersigned, in order that this document may be no longer than necessary, has deemed it advisable to limit his remarks upon these assets to those considered as good by the American commissioner, whose figures the umpire has adopted.

§ 64. After repeated efforts to solve the problem concerning which of these assets are the ones which are considered to amount to the sum of $72,122, or the ones which have been disallowed to the extent of $46,617, the undersigned has discovered that there has been an error in the arithmetical operations employed.

[Page 476]

§ 65. These amounts could be no others than the following:

Debts of private individuals to the fund taken into consideration.

1. Mortgage upon the estate Santa Lugarda $42,000.00
2. Dn. Luis Vazquez:
Capital $3,000.00
Interest 2,275.00
5,275.00
3. Administratrix of Sra. Huesca 9,850.00
4. Dn. Juan de Dios Navarro 13,000.00
5. Admx. of Sr. Velez Escalante 33,782.62½
6. Daughters of General Cosio 325.00
7. Dn. Manuel Prieto 316.00
8. Da. Agustina Montenegro 193.00
9. Bondsmen of Dn. Ramon Vertiz 13,997.00
Total 118,738.62½

In order to facilitate the calculation, the five reales, or 62½ the fifth item were taken as a dollar, and by this mean obtained was $118, 739.

§ 66. The following were deducted as bad debts:

The fourth $13,000
The fifth 33,783
The sixth 325
The seventh 316
And the eighth 193
Total 47,617

The following were considered as good:

The first $42,000
The second 5,275
The third 9,850
And the ninth 13,997
Total 71,122

In this manner, then, was charged an additional thousand dollars to the good accounts, failing, however, to deduct an equal amount from the bad ones.a

§ 67. The first of these accounts qualified as good has already been considered by the undersigned among the properties which actually yielded annual proceeds; not, however, at its nominal value, but at the value of the capital represented by its proceeds capitalized at 6 per cent, in accordance with the express provision of the decree of the 24th of October, 1842. (See §§ 37 and 38.)

§ 68. The second account considered as good was found, according to the inventory of Señor Ramirez, to be in the following condition:

Don Luis Vazquez, upon his estate Minyo, situated in the department of Yxmiquilpan, which was sold at public auction in the year 1826, acknowledges in favor of the Missions $3,000 at 5 per cent, to which amount the $20,000 with which it was encumbered in 1872 (I think this should be 1827, S. Doyle) had been reduced. It appears, from what can be gathered, that the interest was paid only the first year, and that accrued from 1827 to February 28, 1842, is still due, amounting to $2,275.

§ 69. That is to say that this capital remained sixteen years in an [Page 477]unproductive condition, which obliged Señor Ramirez to express himself in the résumé of his inventory in these terms:

Inasmuch as no agreement has been reached for the payment of the interests upon the capital secured by a mortgage of the estate Minyo, no mention is here made of its proceeds.

§70. How then could such a debt be considered good? It would be necessary to presume that as soon as it became incorporated into the national treasury with the right to collect it, its entire amount was paid in and commenced to produce a greater income than it had previously yielded, inasmuch as the capital having been invested at 5 per cent a claim is now brought for interest at 6 per cent upon the capital and the unpaid interests.

What proof is there that the Mexican Government ever received one cent from such a debt? (§34.)

§ 72. If in each of the sixteen years elapsed the debtor was unable to pay the $150, how could he be expected to pay the $5,275 in cash?

§ 73. Supposing that the title or right to collect this debt had not been granted to the public treasury, what can reasonably be supposed were the fund’s prospects of collecting it?

Certainly nothing for interest in arrears, and at the most, after great expense, the payment of the interest as it falls due.

§ 74. Having considered these circumstances, if this debt is to be taken into account, its cash value should be estimated at half of its total amount, that is to say, $1,500.

§ 75. If the Government is to be held responsible for all the capital, it should not be made liable for the interest in arrears, because the interest owed was as bad a debt as any of those so qualified by the American commissioner and by the umpire; no doubt worse than the debt Owed by Dn. Manuel Prieto, who had only paid $100 on account.

§ 76. Now, then, since the revenue from this capital, bearing 5 per cent, would be $150 per annum and as this amount corresponds at 6 per cent to a capital of $2,500, only the latter sum can be charged to the Government of Mexico, according to the decree of October, 1842, and in conformity with natural equity. (See 37 et passim.)

§ 77. The third debt considered as good is mentioned by Señor Ramirez in these terms:

Señora Doña Dolores Reyes, resident of Puebla, who as testatrix represents Doña Petra Garcia de Huesca, owes $9,850 for interest in arrears on the $42,000 secured by a mortgage on the Santa Lugarda estate and its annexes before their sale to Sr. Barrientos. Many attempts have been made to collect this debt, without result, and therefore an agent was to have been appointed to make this collection.

§ 78. That is to say, that this was a debt not acknowledged, and not then secured by mortgage (because the estate had already passed out of the control of the debtor), and against the estate of a widow, represented by another woman.

§ 79. What were the probabilities of obtaining the payment of this debt? There were none, or at least they were remote.

§ 80. And since it has not been proved on the part of the claimants that the Mexican Government has received one cent of this debt, could it be just and equitable to charge the entire amount to said Government?

No matter how little one reflects upon it, one can not answer this question in the affirmative, (See 33 and 34.)

[Page 478]

§ 81. It would have been a veritable fortune to the fund to have recovered, after a costly and lengthy litigation, one-third or one-fourth of said debt.

§ 82. If, then, any conjectural cash value is to be given to this debt, it can not be more than $4,525, it being worthy of notice that this debt represents the interest at 5 per cent since the capital of $42,000 was invested in a mortgage at that rate upon the Sta. Lugarda estate.

§ 83. With regard to the last debt held as good, the undersigned will only remark that although in the inventory of Sr. Ramirez it is stated that that debt had been acknowledged twenty days previously (February 8, 1842), it does not mention when it had to be paid, nor that it will bear interest.

§ 84. As has been shown, the other debts of private individuals for which the Mexican Government can be held responsible, supposing the capital secured by a mortgage upon the estate Sta. Lugarda be in the situation and of the value in which it was considered by the undersigned (§ 47), are the following:

Amounts. Annual revenues.
Mortgage upon the estate Minyo $2,500 $150.00
Debt of the executrix of Señora Huesca 4,925 295.50
Id of Dn. Vertiz 13,997 839.82
21,422 1,285.32

§ 85. The undersigned has observed that the American commissioner and the umpire did not take into account the debt charged to the Messrs. Revilla, mentioned in the inventory of Señor Ramirez in these terms:

The firm of the Messrs. Revilla, for the balance of the estate Arroyozarco, which it bought from the Spanish Government, acknowledges an indebtedness of $40,000, at 6 per cent annually. It owes the interest accrued up to the 28th of February of the current year, $26,770 3 reals 1 grano. Suit was brought for this amount by the abolished junta, and a receiver appointed, through which, I am informed, resulted serious losses to both the debtors and to the fund, wherefore it was deemed advisable to divide it into installments, and to accept payment of it in small amounts, in hope of a suitable opportunity presenting itself for better securing the debt.

§ 86. This signifies that the firm, the debtor, was virtually in a state of bankruptcy, that it owed back interest covering a period of more than eleven years, and that it had been granted an indefinite extension in which to meet its payments.

Under these circumstances the debt was absolutely worthless.

§ 87. Did the opportunity which was awaited ever arrive for improving it? Could anything be obtained for it? Was it secured by mortgage? Nothing of this sort appears, and for these reasons the undersigned is compelled to believe that this debt was not taken into account.

§ 88. But if this debt had been allowed, it surely would not have been for the whole of its nominal value, because no one could estimate what it might bring. The most that could possibly be obtained for a debt of this kind would be to collect half of the capital and nothing for the back interest; that is to say, $20,000.

§ 89. But, on the other hand, the liabilities of the fund, which amounted to $32,350, have not been taken into account, and which the claimants themselves admitted ought to be deducted when they first presented their claim to the Government of the United States in July, [Page 479]1859, until their last argument, dated January 1, 1875, prepared by Mr. John T. Doyle, who first made the claim of 1859. (Document No. 54).

§ 90. And as such discount has not been made without giving any reason for it, the undersigned believes that the amount of said liabilities has purposely been offset, with the greatest possible value of the asset chargeable against Señores Revilla. It is impossible that anyone would have knowingly acted against the well-known principle of law, “Bona intelliguntur deducto aere alieno.” (L. 72, De jure dotale.)

§ 91. Let us proceed now to examine the debts against the public treasury prior to the 28th of February, 1842, date of the inventory of Señor Ramirez, although such debts were not offered for sale, nor could they be incorporated into the national treasury, as that same treasury was the debtor:

No. 1.

A capital of $20,000, which the public treasury acknowledged at an annual interest of 5 per cent, which was deposited in the “Caja de Consolidacion” during the time of the Spanish Government.

No. 2.

Another sum of $201,856 6 reals 4 grains, at the same rate of interest, which the Spanish Government took on irregular deposit to meet its urgent deficiencies, pledging its entire revenue for its payment.

No. 3.

Another sum of $162,618 3 reals 3 grains, which the “Tribunal del Consulado” of this city acknowledged at 6 per cent, with a lien upon the revenue from the tobacco since the year 1810, and which is at present chargeable against the public treasury, which is now responsible for the debts of said corporation. This sum was derived from the sale which was made of the estate Arroyozarco to Don Juan Angel and Don Antonio Revilla.

No. 4.

Another sum of $38,500, which the college of San Gregorio acknowledged at 3 per cent, in favor of the fund prior to the first expulsion of the Jesuits, and which is now recognized by the public treasury, as Don Antonio Ycara has informed me.

No. 5.

Another sum of $68,160, 3 reals, which in 1825 was deposited in the national mint (it having been ordered that the capital of the fund be so deposited) by Don Jose Yldefonso Gonzalez del Castillo, who administered these affairs. This amount he received from the Señores Revilla on account of the value of the estate Arroyozarco, which property was disposed of by Sr. Esteva, as is stated in the document from which I derived this information.

No. 6.

Another of $7,000, which, in consequence of an executive order of the supreme Government, that the Srs. Revillas should pay $20,000, their attorney, Don Francisco Barrera delivered on the 20th October, 1829, together with a promissory note against the German-Mexican Company.

No. 7.

Another sum of $3,000 borrowed from the fund, on promise of repayment, to cover the expenses mentioned in Article 5 of the law of September 19, 1836. (For the promulgation of the bulls of the bishop of California and for his transportation to the Episcopal See.)

No. 8.

A certificate of deposit for $15,973, 5 reals, payable whenever the cash shall be available in “the ten per cent fund,” proceeding from the loan of $60,000 negotiated by the Supreme Government, which was secured by a mortgage upon the properties pf the Californias.

[Page 480]

§ 92. It appears, then, that the debts of the national treasury to the fund were the following:

Capital. Annual interest.
No. 1 at 5 per cent $20,000.00 $1,000.00
No. 2 at 5 per cent 201,856.79 10,092.84
No. 3 at 6 per cent 162,618.40 9,757.10
No. 4 at 3 per cent 38,500.00 1,155.00
No. 5 without interest 68,160.37½
No. 6 without interest 7,000.00
No. 7 without interest 3,000.00
No. 8 without interest 15,973.62½
Total. 517,109.19 22,004.94

§ 93. If the decree of October 24, 1842, had referred to these assets on ordering the sale of the properties of the fund, and if this sale had been possible in pursuance of the same decree, the interest to be paid after the issuance of the decree would have amounted to the same as before the issuance of said decree, except that instead of representing a capital of $422,975.19 at different rates of interest it would represent $366,749 at 6 per cent, which is the capital represented at this rate by the income of $22,004.94, namely:

Capital. Annual interest.
The asset of $20,000, which, acknowledged at 5 per cent, would produce $1,000 per annum, in accordance with the decree, should be estimated at $16,666.66, which is the capital represented by that income at 6 per cent $16,666.66 $1,000.00
That of $201,856, 6 reals, 4 grains, also recognized at 5 per cent, would produce $10,092.84 per annum, and this income at the rate of 6 per cent corresponds to a capital of $168,214 168,214.00 10,092.84
That of $162,618.40, acknowledged at 6 per cent, would have remained, in accordance with the decree, at its integral value 162,618.40 9,757.10
That of $38,500, acknowledged at 3 per cent, should produce $1,155, and this annual yield at 6 per cent, represent a capital of 19,250.00 1,155.00
Total assets which might be considered as included in the debt acknowledged at 6 per cent interest
Total interest which these assets would produce after the issuance of this decree 366,749.06 22,004.94

§ 94. With regard to the amounts which were due for interest for a long time back, they would have been left, after the decree, in the same condition as they were before, without yielding interest, because neither did the decree require, nor is it reasonable to suppose that such was the intention of the legislator, since it was clearly stated that his aim was none other than that of economizing the expenses of administration of the fund and not to increase its income; and this was true to such an extent that in order to equalize the rate of interest on the capital that yielded an annual income it was ordered that the capital that earned less than 6 per cent should remain only of the value that would represent this same income estimated at 6 per cent.

§ 95. According to the inventory of Señor Ramirez, the following amounts were due for interest:

On asset No. 1 $29,166.66½
On asset No. 2 294,434.30
On asset No. 3 206,521.36
On asset No. 4 34,842.50
Total a564,964.82½
[Page 481]

Therefore the unpaid interest on the assets, which caused the same, amounted then to more than all the assets, including those which did not yield interest. (See § 92.)

§ 96. Itcshould be borne in mind that Señor Ramirez’s inventory was made, not by virtue of, and in relation to, the effects of the decree of October 24, 1842, but eight months before that decree was issued—on February 28th of that year—solely for the purpose of delivering the properties of which said gentleman, as attorney for the bishop of the Californias, was actually or virtually in possession, and in compliance with the decree of the 8th of the same month and year, which, article 6 of the decree of September 19, 1836, having been repealed, again charged the Government with the administration and employment of the Pious Fund of the Californias.

§ 97. So that on adding in said inventory the amount of the interest due to the assets upon which it had accrued, nothing else was done except to form a total of the amounts which the Government owed under both aspects, which might have been done at any other time.

§ 98. For instance, if after the decree of February 8, 1842, no other decree than that of April 3, 1845, had been issued, whereby it was ordered to return to the bishop of the Californias, and his successors, the administration of the Pious Fund, which had been taken from him by virtue of said decree, the account concerning the values of the public debt could have been none other than the following:

Capital $517,109.19
Interest due up to February 28, 1842 564,964.82
Interest from that date to April 3, 1845 95,969.79
Total 1,178,043.80

§ 99. Because upon what ground could it be maintained that from the day on which the administration of the fund was taken from the bishop the securities of the public debt which before did not bear interest should begin to do so; and, further, that compound interest should commence to run on the amount of the accrued interest?

There certainly could have been no reason for such a decision, because the decree of February 8, 1842, did not authorize it.

And it is equally true that it was not authorized by the decree of October 24 of that same year.

Therefore, there is no reason for computing interest from the date thereof on capital that did not bear interest, nor upon interest accrued up to February 28, 1842.

§ 100. If the intention of the decree of October 24 had been to make so important an innovation, it would undoubtedly have been made in terms so clear that there would have been no room to entertain the least doubt about it.

§ 101. Because the burden that such an innovation would have imposed upon the depleted treasury of Mexico would reach annually the following amount:

Increase of 1 per cent on $20,000 capital, which bore interest at 5 per cent $200.00
Increase of 1 per cent on the asset of $201, 856. 79, which bore interest at the same rate 2,018.56
[Page 482]Increase on the asset of $38,500, which bore interest at 3 per cent $1,155.00
Increase to 6 per cent on the asset that did not bear interest (marked on the list as Nos. 5, 6, 7, and 8), amounting to $94, 134. 5,648.04
Increase to 6 per cent on $564,964,825, which was the amount of the interest accrued on the assets that bore interest 33,897.89
Annual amount of the burden 42,919.49

Is it reasonable to presume that this new debt should be imposed upon the Treasury without even expressing it in a clear manner in the text of the decree?

§ 102. And what is there in said decree which, though not explicit, may even reasonably be so construed?

There is certainly nothing in article 1; in article 2 there is only the obligation to pay interest-at 6 per cent on the total produced from the sales of city and country real estate and other properties (it is understood that they were marketable), estimated by the capital which their annual proceeds capitalized at 6 per cent represent; that is to say, on the capital that yielded a yearly income, not upon that which was neither capital nor produced incomes; not upon the amount of the unpaid interest, nor of the assets which did not bear interest; and, finally, in the third article the pledge of the revenue of tobacco for the payment of the interest corresponding to the capital of said fund.

§ 103. If then, in the other two articles, it is not stated that the assets which before bore no interest should commence to draw interest, nor that the assets which before bore interest at 5 per cent and at 3 per cent should bear afterwards 6 per cent, nor that the amount of the accrued and unpaid interest should in future bear interest at 6 per cent, to declare that all these provisions were comprised in the words “to the payment of the interest corresponding to the capital of the said fund,” is to interpret in the most arbitrary manner a phrase whose clear, obvious, and logical meaning is that the revenue from tobacco was pledged to the payment of the interest that should be paid to the fund by the public treasury, according to the provision immediately preceding.

§ 104. The agreement contracted by the Government of Mexico with respect to the fund in question being thus interpreted, let us see how it has been practically construed in the present case, and how it should be construed in justice and equity.

§ 105. The commissioner of the United States, in his decision, says:

By the decree of October 24, 1842, the public treasury acknowledged an indebtedness to the Pious Fund of the Californias of 6 per cent per annum on the total proceeds of the sales and pledged the revenue from the tobacco for the payment of the income. This pledge was never kept, but the revenue from the tobacco was otherwise appropriated by the Government. Nevertheless, there is an acknowledged indebtedness of 6 per cent on the capital of the fund, payable annually. This amounts to the sum of $86,161.98, and the first installment was due October 24, 1848.

§ 106. There is in these words a true and an erroneous idea, which, consequently, caused an incorrect calculation.

It is true that by the decree of October 24, 1842, it was acknowledged that the national treasury would pay to the fund 6 per cent per annum on the proceeds of the sales that might be made by virtue of it, but it is not true that interest should be paid at this rate upon the total nominal value of the fund, but only upon the amount which the sales of country and city real estate and other properties that could be sold, and which yielded revenues, fixing the price at the sum which [Page 483]the actual proceeds of such property capitalized at 6 per cent, would produce.

§ 107. Therefore, the foundation of the argument of the American commissioner should have been the following:

By the decree of October 24, 1842, the public treasury acknowledged an indebtedness to the Pious Fund of the Californias of 6 per cent per annum on the proceeds of the sales of the property of the fund that produced revenues, these being estimated as if they represented capitals bearing 6 per cent interest, or, in other words, the Government agreed to pay to the fund as interest the same amount that the fund received before as revenues of the property which constituted said fund.

In the second place, it should have determined what were the actual cash proceeds of the fund, and not what was its nominal value, and finally to designate only the amount of said proceeds as being the sum upon which the Government had to pay interest to the fund.

That is to say, the same settlement that the Government made with regard to the revenues of the hacienda de Ibarra, of the houses Nos. 11 and 12 Vergara street, of the three haciendas that were previously leased to Mr. Belaunzaran, it should have made with regard to the capital secured by a mortgage on the hacienda de Santa Lugarda, and as regards the capital secured by a mortgage in the hacienda de Minyo, if said Government found more reason to estimate its revenues than for taking into account those of the hacienda of Ciénega del Pastor; and if it should also wish to estimate as saleable property the securities against the treasury, it was not the nominal amount of these securities but that of their revenues which ought to have been taken into consideration.

§ 108. But if, under the supposition that all the goods and assets of the fund were sold, he preferred to charge interest at 6 per cent upon the total produced by such sale, without taking into consideration the sums which such properties had produced, then, in order to be consistent with the plan adopted by him of not taking into consideration sums which did not appear to have been converted to the use of the Government (see § 34), he ought to search in the record for the evidence concerning what properties of the fund entered into the Mexican treasury, and in view of the data which appeared concerning this subject, to have formed the following statement:

In accordance with the report of the treasury department tor the year 1843, presented by the claimants (No. 54, p. 196), up to December 31 of that year, the receipts of the treasury for the mission fund amounted to the sum of $323,274.51
According to the report of the treasury department for 1844, also presented by the claimants (No. 54, p. 196), the receipts of the treasury in that year from said fund amounted to the sum of. 124,726.01
Total receipts of which there is any evidence 448,000.52
Annual interest corresponding to this sum 26,880.03
Half corresponding to Upper California 13,440.015

§ 109. It should therefore have devoted to the claimants half of this interest from Octooer 24, 1849, as they themselves requested, until 1868, which amounts to $268,880.30.

§ 110. Indeed, if the decree of October 24, 1842, is taken as the basis of the decision, the important thing to verify is not what properties were sold in conformity with that decree, but how much their sale produced, because, as has already been shown, by that decree it was only acknowledged that the national treasury would pay interest at the rate of 6 per cent on the proceeds of the sale of the properties of the [Page 484]fund. If, then, some of the properties were not sold, there should not be charged upon their value interest in accordance with said decree.

§ 111. The claimants have said in their brief history of the fund (p. 5), the following:

The properties of the Pious Fund at the time of the decree of October 24, 1842, consisted of real estate, urban and rural; demands on the Public Treasury for loans theretofore made to the State; moneys invested on mortgage and other security, and the like. * * * Trie greater part of the property was sold in pursuance of the last-mentioned decree for the sum of about two million dollars of Mexican money, being the equivalent of that sum in gold coin of the United States (certainly not so at the present time). Although the names of the purchasers are not known to the claimants, they are stated by Mr. Duflot de Mofras * * * to have been the house of Baraio and Messrs. Rubio Brothers. In the above-mentioned sale of the properties of the Pious Fund were not included the securities of the said fund against the Government by reason of loans, etc.

§ 112. It is evidently inaccurate to say that the sale of the properties of the fund, without including the securities against the Treasury, produced two million dollars, because, supposing that all those stated by Sr. Ramirez in his inventory should have been realized upon at the nominal value stated in said inventory, they would only have been worth $649,047.34, namely:a Capital, representing an annual income at 6 per cent of $34,665 (including that derived from the hacienda “Ciénega del Pastor”), $577,583.33; and debts of private individuals (not excluding the bad ones), $71,464.01.

§ 113. But since the claimants knew, through M. de Mofras, who the persons were who paid the two millions of dollars for properties whose entire nominal value did not amount to a third of this sum, and since it evidently devolved on them who collect interest on the proceeds of the sale of the fund to prove the amount of those proceeds, it is logical to believe that they have tried to do so, and that the only existing data are those which they have furnished to the commission.

§ 114. Therefore, to said commission, the only thing which the party who was bound to furnish the proof has demonstrated, is, that the sale of the properties of the fund, made in accordance with the decree of October, 1842, yielded the amount of $448,000.52, and if there should only be granted to the claimants what belongs to them by virtue of said decree, the amount assigned to them should not be more than half of the interest upon said sum. As to the lack of contradictory proofs on the part of the Mexican Government, even supposing that said Government is bound to produce them when it did not acknowledge in said commission the authority to take cognizance of this case, the only thing that can be legally presumed is that the statement concerning the properties and assets which constituted the fund presented by the claimants is correct, but not that all of said properties and assets were sold for their nominal value, which is the essential basis in the application of the decree of October, 1842.

III.

§ 114a. But if this case is to be decided—supposing that the commission believe itself authorized to do so—by the last obligation contracted by the Government, defendant, with regard to the fund, prior to February 2, 1848, that which there is to be assigned to the church, claimant, [Page 485]is not a part of the revenues of the fund, but that share of the fund itself which might correspond to the church.

In giving to this claim the support which was at the last two sessions of the commission systematically given to the greatest possible number of claims presented against Mexico, the American commissioner not discovering any act of the Government, defendant, which merited the name of injury, proven, the only thing he said was the following:

I am firmly convinced that whatever the right or interest of the church of Upper California in the fund for the aid of the works of its missions might have been before the cession of Upper California, that right or interest continued as before; it suffered no alteration.

That is to say, it is sufficient that the church, claimant, had a right or interest, whatever it might be, in the fund of the missions, before the annexation of Upper California to the United States, in order that such right continue afterwards.

§116. If such a conviction be believed sufficient in order to allow the demand as if the commission were created to render effective all rights or interests of Americans, what remains for it to determine is, what was the right or interest of the church, claimant, at the time of the annexation of Upper California to the United States. In order to accomplish this, it is necessary to take into consideration not the provisions made since the creation of the fund, nor the condition the latter may have been in during its most prosperous period, but the last enactment relative thereto, and the condition in which it was at the time of said annexation.

§ 117. The last enactment was to the effect that the assets and properties of the fund remaining unsold be returned to the bishop of California, or his successors, to carry out the purpose of article 6 of the decree of September 29, 1836, without prejudice to the right of Congress to decide in regard to such of the property as had been sold; and the fact is, that when said last enactment was made, the greater part of the fund had already been sold.

§118. But as this tribunal can not extend its investigation further back than the 2d of February, 1848, and in this case not’even so far, but only to the 30th of May of that year, when said tribunal considered the church as being possessed of American citizenship, it is necessary, for the only presumption that can benefit the church, to suppose that the devolution had been ordered on May 31, 1848, and that on the same date the claimant requested its fulfillment.

§119. They would then have been obliged to formulate their dem and in these terms:

The Government has engaged to deliver to the successors of the bishop of the Californias the unsold properties of the fund of the missions. We are the successors of said bishop in upper California; we ask, therefore, that our share of this property be delivered to us. When the bishop ceased to administer the fund, an inventory was made of the properties that formed it, according to which they should be returned to us less those which may be proved to us to have been sold.

§ 120. With regard to the proceeds which those properties yielded while their administration was in charge of the Government, the claimants have no right to exact an account of their employment at a time when they could not claim them as American citizens.

§ 121. The umpire, in giving utterance to the opinion that “the assets of which mention is made in the law of April 3, 1845, should include the debt of the Government for payment of interest upon the proceeds [Page 486]of the properties sold which had been incorporated in the national treasury,” certainly referred to the time when this law was put in force and to the person who could then demand its fulfillment—that is to say, the Mexican bishop of the Californias—to whom should be delivered, according to the opinion of the umpire, the interest the Government agreed to pay by the decree of October 24, 1842.

§ 122. But this interpretation, even being well founded, would only be applicable to the claimants by the commission, if they had had not only the right to exact the interests, but also the right to claim them before the commission; and it is such a well-known fact that they did not have such rights, that it has believed itself able to concede to them only one-half of the interest accrued since the church acquired American citizenship. In other words, the right of the Mexican bishop of the Californias, if he had any, to receive the proceeds of this fund continued in force until the 29th of May, 1848, and this commission is not empowered to inquire whether such right was or was not respected. The right of the American bishop of Upper California commenced, as is said, on the 30th of May, 1848, and only from that date could the part of the fund which should have been delivered to them in conformity with the law of April, 1845, commence to yield profits to them.

IV.

§ 123. But the interested parties, instead of presenting their claim at the proper time and in due form to the Government of Mexico, let years and years elapse without advancing any until July of 1859, when they presented the exaggerated claim (qualifying it in the most favorable manner possible) in which they took unto themselves all the properties of the fund, Without excluding even a small share for Lower California, and all the interests that had not been surrendered to the bishop of the two Californias.

§ 124. As foundation for this claim they quoted neither the decree of October 24, 1842, nor that of the 3d of April, 1845, but solely a fictitious contract between the Government of Mexico and the Pope, by which the former was bound to confide the administration and employment of the fund of the missions to the bishop of the Californias.

§ 125. The undersigned understands that it would be useless for him to attack before the umpire this and the other grounds of the pretended right of the church claimant to the fund in question. It is sufficient at piesent for his purpose to quote the terms in which this claim, under date of July 20, 1859, was presented to the Government of the United States, begging its interposition with that of Mexico, by means of a petition signed by Mr. John T. Doyle, attorney for the claimants.

They [says that petition] claim that the Government of Mexico is indebted to them, as trustees for the Catholic people of California, in the total amount of the aforesaid Pious Fund, with the arrears of interest thereon.

They not only, therefore, demanded the interests of the fund, but the entire capital of said fund, and, in addition, its unpaid interests.

§ 126. The Government of the United States paid no attention to this claim, and did not even give notice of it to the Mexican Government. Nine years after, and very probably without having taken it into account, the two Governments negotiated the Convention of July 4, 1868, article 1 of which says:

All claims on the part of corporations, etc., citizens of the United States, arising [Page 487]from injuries to their persons or property by the authorities of the Mexican Republic, which may have been presented to either Government, for its interposition with the other since the Treaty of Guadalupe Hidalgo * * * and which yet remain unsettled, as well as any other such claim which may be presented within the lime hereinafter specified, shall be referred to two commissioners, etc.

Article 3, which specifies said time, directed that it should be eight months, counted from the first meeting of the commissioners, and at the most an addition of three months was allowed in the cases where the causes of delay were satisfactorily proved.

§ 127. The first meeting of the commissioners occurred on August 1, 1869, and on the 31st of March terminated the ordinary time for the presentation of the claims referred to them by the convention.

§ 128. On the day previous, the 30th of March, 1870, Mr. E. Casserly presented the following claim:

Joseph S. Allemany, archbishop of San Francisco, and Thadeus Amat, bishop of Monterey, California, successors of Francisco Garcia Diego, bishop of the Californias, in their own behalf and in the behalf of all interested, represent that they have a just claim against the Eepublic of Mexico for a very large sum of money, to wit, for the sum of three millions of dollars. That said claim had its origin in the seizure by the authorities of Mexico of moneys belonging to and property purchased with the proceeds of a fund known as the Pious Fund and created by private contributions, etc. * * * Said Joseph S. Allemany and Th. Amat claim, that as the successors of the said bishop of the Californias they are entitled to the possession of said moneys and of said property, and to the increase, profits, rents, and proceeds of said fund. They therefore ask the aid and intercession of the Government of the United States in obtaining from Mexico recompense for the wrongful seizure of said fund moneys and property, and for the detention of the same, and the payment of all damages resulting from said seizure and detention. (Letter A.)

§ 129. There elapsed afterwards the extra term of three months in which other claims could be presented, and nothing further was offered in this case; and it remained, in consequence, referred to the decision of the commissioners, as above set forth.

§ 130. Any impartial person whatever, and even the American commissioner himself, could do no less than refuse the claim thus formulated, noticing only that the seizure of the fund by the Mexican authorities, to which it makes allusion, occurred before the 2d of February, 1848.

§ 131. The interested parties must have understood it thus, so they sought a means of transferring the transaction which should serve as a base to the claim to the time over which the jurisdiction of this tribunal extends. But it appears that such means did not occur to them until the term for the presentation of claims had already expired.

§ 132. This, nevertheless, was not an obstacle to putting it into execution, since on the Slst of December, 1870, under the guise of a memorial of the claim presented in the proper time, they presented another claim entirely distinct.

§ 133. In the former they demanded all the capital of the fund and its accrued interest; in the latter they asked neither the one thing nor the other, but simply the revenues due since 1848; in the former the seizure of the fund by the Government of Mexico was alleged as the cause and origin of the claim; in the latter an agreement to pay certain revenues annually; in the former was asked the reparation for an injury (recompense for the wrongful seizure); in the latter simply a division without alleging, much less proving, any injury.

§134. In order to show more clearly the essential difference between the first and second claim, let us suppose a private individual in the place of the corporation that presents it, since for the purposes of the convention the case is identical. Juan Fernandez, a Mexican citizen by [Page 488]birth and a resident of Upper California, by having continued his residence there after the 30th of May, 1848, without manifesting the desire to preserve his original citizenship, became a citizen of the United States, when the year designated in the treaty of Guadalupe Hidalgo had elapsed—that is to say, the 31st of May, 1848; certainly not before, since until the day immediately preceding he had only to go out of the American territory to preserve his Mexican citizenship.

Let us suppose that in 1859 Fernandez presented a claim to his new Government against Mexico, alleging that the latter in 1842 had seized some properties that belonged to him, and asking that the return of these properties be demanded of it and the delivery of the profits which they had yielded during the time of their detention. This tribunal having been instituted, Fernandez repeated the same claim within the limit fixed for the purpose—that is, the 30th day of March, 1870.

How would the commission have decided? Surely it would have denied it, as it has denied No. 114 of Antonio Miranda, No. 141 of Melquiades and Josef a Chavez, No. 379 of Irinea and Francisca Baca, No. 380 of Mariano Armijo, No. 942 of Alejandro Valle, 945 and 946 of Donaciano Vigil, and various others presented by Mexicans by birth, but naturalized citizens of the United States by virtue of the treaty of the 2d of February, 1848, for alleged injuries to their persons and property caused before that date.

§ 135. Therefore, if the Catholic Church of Upper California, which it was decided to consider as a citizen of the United States by virtue of said treaty (as if it were a private individual), should not be privileged further by distinguishing its claim, without any reason, from that of any private individual formerly a Mexican citizen and to-day an American citizen, then the claim which it presented within the time fixed in the convention should be disallowed in conformity with the spirit of said convention.

§ 136. The fact that the American commissioner who denied the aforesaid claims took the latter into consideration is sufficient to show that the claim presented in December, 1870, is essentially distinct from the former, since, although the decided inclination of that functionary to favor the American claimants can not be doubted, it would be necessary to attribute to him a complete change of opinion to suppose that solely because the claim in question was made by the Cathoic Church he violated knowingly the most explicit stipulation of the international agreement which created this commission.

§ 137. And even supposing that he had carried to this limit his disregard for the stipulations of said compact, the umpire, who has refused to sanction many other transgressions of authority attempted by that functionary, surely would not have supported him in this case.

§ 138. He has done it, without doubt led by the American commissioner into the error that the claim referred to is the one presented in December, 1870 (which was not the case), in conformity with the convention, and not the one presented on March 30 of that year; that is, not the one in which the division of the revenues of the fund in question has been claimed according to the decree of the 24th of October, 1842, but that in which the same fund was ashed, it being alleged that the claimant church hadbeen deprived of it.

§ 139. This grave error being discovered, since the decision rendered under such misapprehension has not a final and irrevocable character, because the proceedings of the commission have not yet terminated, it [Page 489]ought to be entirely corrected, declaring that the claim referred to it in the present case, not being within the jurisdiction of this tribunal, must remain among the ones rejected for the same reason.

§ 140. But the undersigned can scarcely hope, although he asks it in justice, that after having rendered a judgment so favorable to the church claimant for the benefit not only of the heatheti to be converted, but also of the inhabitants of Upper California and the whole people of the United States, it will be entirely reversed.

§ 141. Considering this, the undersigned was compelled to suggest a point of view by which it may be possible to combine the character of the decision with that of the claim legally presented, even if that point of view does not conform to the text of the convention, which can in no way support the pretension of the claimants, even should he endeavor to reconcile the desire to consider such pretensions in the spirit of said convention.

§ 142. The umpire has formed the opinion that it is morally just that the funds of the missions be employed for the purposes designated by those who created it; that it was intended partly for Upper California, and that the ecclesiastical authorities are the best fitted to employ the share of the fund intended for that region, without taking into consideration the circumstance that Upper Calif ornia, having ceased to form part of the Mexican Republic, may have prejudiced in some way its right to share in the fund. This judgment once having been formed against the opinion of the Mexican commissioner, the umpire saw in the opinion of the American commissioner the question formulated in these terms:

The question turns upon the amount of the proceeds of the fund that ought to be applied to each one of the Californias, and upon the total of those proceeds.

And honestly considering such question as the one referred to this tribunal by the Governments that created it, the umpire sought a way that would express his opinion in the sense referred to.

§ 143. Certainly the undersigned can not believe that the umpire has formed the opinion that the Government of Mexico was obliged by law to remit each year on the 24th of October a certain amount of money to the bishops of California, in virtue of a decree that does not so provide, and without it previously having been determined what share of said fund corresponds to Upper California, or even if the latter had any right to such share after its separation from Mexico.

§ 144. No; such obligation could not have been created, except impliedly and upon the supposition that the division which the claimants solicited in December, 1870, had been made since the 30th of May, 1848. The undersigned feels fully assured in asserting it thus that he can not be contradicted.

§ 145. By decree of February 8, 1842, the charge of administering and employing the fund of the missions for the purposes designed was withdrawn from the bishop of the Californias, and on October 24 of that same year, when said bishop, not being so charged, on the properties of the funds being ordered sold, it was simply provided that those in charge of the revenue of the tobacco that remained pledged for the payment of the interest at 6 per cent upon the capital to which the decree refers should furnish the sums necessary to fulfill the purposes for which the fund was intended.

§ 146. In order to declare that according to this provision the Government of Mexico has been obliged to remit to the claimants each [Page 490]year since 1848 the amount of $43,080.99, the following suppositions are necessary:

1.
That either by the decree of October 24, “issued as supplementary to that of February 8 of said year, which provided that the supreme Government should resume the care and administration of the Pious Fund of the Californias, as formerly had been the case,” that the decree of February 8, 1842, was repealed with respect to that portion by which the bishop of the Calif ornias was retired from the administration of the fund, or that such decree (that of the 8th of February) was entirely null and void because it violated a contract made with the Holy See in 1836, as the claimants alleged in 1859.
2.
That where the decree of October 24 says simply “those having the revenue of tobacco in charge will furnish the sums necessary to accomplish the purposes of the fund,” it must be understood that it orders that each year, on the date of the decree, all the interests on the capital of the fund should be delivered to the bishop of the Californias.
3.
That although by the same decree the public treasury should acknowledge an interest of 6 per cent only upon the total produced by the sales which were made conformably to said decree, of the estates and other properties of the Pious Fund of the Californias, for the capital represented by their proceeds capitalized at 6 per cent, it is to be understood by capital of the fund for the purposes of said decree, the nominal value of the estates, properties and assets of the fund, and the interests accrued upon such assets.
4.
That either the same decree provided that one-half of the sums to be paid should be destined for Upper California, or that on its separation from Mexico it was determined that this part belonged to it and should immediately be turned over to its ecclesiastical authorities.

§ 147. It is seen that in this series of deductions and suppositions the moral conviction that the bishop of the Calif ornias always had the right to administer the fund in question enters largely, and that the text of the decree endeavored to be applied, and that of the 8th of February, 1842, for whose completion the former was issued, are of no value.

§ 148. The umpire in support of his opinions has made the following observations:

Neither by the Spanish nor the Mexican Government was it ever pretended that the proceeds of the fund were not finally to find their way into the hands of the ecclesiastical authorities or that they were to be applied to any other objects than those pointed out by the donors. After the decree of October 24, 1842, the Mexican Government admitted its indebtedness and the obligation, it was under to remit the proceeds of the fund to the bishop of the Californias by issuing orders in his favor upon the custom-house at Guaymas

The undersigned does not believe that these observations are other than supplementary deductions for want of a positive proof. With respect to the first, it seems to him that it is certainly not the same thing not to oppose a thing going into the hands of a certain person as to be obliged by law to remit it to him; and with regard to the orders issued in favor of the bishop (only one of which the undersigned has been able to see in a printed copy of one of the arguments presented by the claimants), the only thing they prove is that once or several times it was ordered that there be paid to the bishop of the Californias certain sums, but not that the scope of the decree of October 24, 1842, should be extended by informal orders, and much less that by the same means be annulled the decree of February 8 of that year, [Page 491]which revoked the last part of the law of 1836, and returned to the Government the administration and employment of the fund, as the umpire has considered in his decision.

§ 149. The last deduction in it, concerning the obligation of the Government of Mexico to remit the properties of the fund to the bishop of the Californias, is the following:

Such obligation is recognized also by the law of the Congress of April 3, 1845, in which is ordered the return to the bishop of the Californias and to his successors of all of the assets and properties of the Pious Fund that had not been sold, for the purposes expressed in the law of September 29, 1836, without prejudice to what Congress might determine with respect to the properties which had already been sold.

§ 150. The undersigned does not see how anything else can be deduced from this law than the fact that properties belonging to the fund of the missions had been sold. Beyond this there is only the declaration that hereafter the bishop of the Californias would be the one to administer the unsold properties of the fund, putting into effect anew that portion of the law of 1836 bearing on the subject which had been revoked in February, 1842. So then, far from recognizing that the bishop of the Californias should have received the proceeds of the fund as legally charged with its employment between 1842 and 1845, it shows that he did not have such charge lawfully during that time, since had he held it legally it would not have been deemed necessary to restore it to him, citing the law which had at one time conferred it upon him and which had been formally revoked in this respect in February, 1842; and at no time previous to the 3d of April, 1845, again put in force in the necessary form, to wit, in that of a law or decree.

§ 151. The undersigned, on showing thus the tenor of the law of the 3d of April, 1845, does not intend in any way to reflect upon the interpretation of the umpire but only to demonstrate that this, just as the preceding observations made with the same intent, has for a foundation not the legal antecedents of the transaction but a moral conviction; not the substance of a law in which is confided to the bishop of the Californias the charge of administering and employing the fund of the missions but the moral conviction that that bishop was the only person for such charge; because, it must be repeated by the written law, just or unjust, he was deprived of it on the 24th of October, 1842, and so remained until April 3, 1845.

§ 152. Undoubtedly for a tribunal not of equity or conscience but a civil one, there is in the present case no other law to consider than that of April 3, 1845, nor other positive obligation to be enforced against the Government of Mexico in behalf of the bishop of the Californias and his successors, than that of returning to them the properties of the fund of the missions unsold at that date.

§ 153. If, therefore, this commission, which is not a court of equity, should not in this case enforce a moral obligation on the part of the Government, defendant, as it has justly refused to enforce all those of like character in other cases, the only thing it can declare is whether the church, claimant, in its character as citizen of the United States has the right to ask the fulfillment of that law, and what part should be intrusted to it of the properties of the fund to which said law refers.

§ 154. In this manner would have been decided the only claim referred to this tribunal, which, although exaggerated as all are, in spite of coming from holy persons, can not but be considered as the [Page 492]claim that the share which legally might belong to it of the fund of the missions be assigned to the Catholic Church of Upper California. The claimants ask all the fund and all its former proceeds. It is for the commission to decide (if it believes itself to be competent), according to article 3 of the convention, what part of the claim daily made, presented, and submitted ought to be allowed to the interested parties; that is to say, what part of the fund is to be intrusted to them.

§ 155. But also, according to the convention, it is necessary that in the interest of the two Governments that celebrated it, and in conformance with the spirit in which it was negotiated, the case be decided in a manner complete, perfect, and final, bearing in mind that “the claim, presented in it and referred to the commission will be considered and treated, the proceedings concerning it having been concluded, as finally settled, rejected, and forever inadmissible.”

The claim presented in this case previous to the convention, and afterwards within the time allowed it, and consequently the one referred to the commission, concerns the delivery of the fund, and the proceedings of the commission having terminated, it ought to be considered by the two Governments interested as forever settled, notwithstanding the reservation made by the claimants at the end of their memorial, or, more exactly, the new claim of December 28, 1870.

§ 156. But if the decision rendered is sustained, the claimants will probably pretend to give it a permanent effect, alleging that by it they have been adjudged entitled to receive a determined sum annually. The Government of Mexico, which can not believe itself bound, according to the convention, except for the payment of the sum that may be charged against it as balance, a balance having been struck between the amounts of the indemnities expressly assigned to the claimants, one country against those of the other, shall refuse to extend the effect of such judgment after the 24th of October, 1868; and it will be necessary to discuss anew the question whether the decree of the 24th of October, 1842, gave to the Catholic Church of Upper California the right to receive annually $43,080.99 or any other quantity whatsoever.

§ 157. The immense sacrifice the Mexican people has made to free its own country from the ecclesiastical yoke are well known to the world. How, therefore, would they receive the claims which would constitute it a perpetual tributary to a foreign church? Would this be the way “to maintain and increase the friendly relations between the Mexican Republic and the United States,” which was the object of the celebration by the two Governments of the convention of July 4, 1868?

It would have a contrary effect certainly, and for this reason the undersigned has said that the present case should be decided conformably to the spirit of the convention; that is to say, without leaving any motives or pretexts for fresh claims.

V.

§ 158. The point of view proposed by the undersigned for the decision of this case being adopted (which point of view is only suggested because of the reason shown in§ 140), there must be determined what are the properties of the fund in question, of whose value a share must be assigned to the church claimant, according to the law of April 3, 1845.

§ 159. This law directed that there should be returned immediately to the bishop of the Californias and his successors the assets and other [Page 493]properties belonging to the Pious Fund remaining unsold, but since those which were then sold, not having been designated, we suppose that the Government contracted the obligation to return all the assets and properties of the fund in the same state they were in when the attorney of said bishop delivered them in virtue of the decree of February 8, which took from him the charge of administering and employing them for their objects.

§ 160. In respect to the proceeds which such assets and properties had yielded during the time the Government had them in charge, if it did not employ them for the purposes for which they were intended no one had the right to demand from it any account of them.

§ 161. Let us suppose, moreover, that no properties nor debts against private parties were returned to the bishop of the Californias, and let us examine this point relative to the return of the debts owed by the public treasury.

§ 162. In regard to them, what was there that should be returned? Certainly not the amounts which they were worth, but the titles that represented them—that is, the right to collect them. Just as in the return of a debt owed by a private person, for example, that of $13,997 that the bondsmen of Dn. Ramon Vertiz had promised to pay to the fund, not the sum due but the security given by said bondsmen on February 8, 1842, would have been returned to the bishop, so also the return of the debts against the Treasury should have been made by the delivery of their titles.

§ 163. But in the instruction or inventory which the attorney of the bishop delivered with the properties of the fund we find the following note:

Only a few days ago was I able to recover of the debts (against the public treasury) the certificate of indebtedness for the capital of $162,618 3 reals 3 granos that the consulate received. All that is known of the others is that the interest was paid by the general treasury, and these items can be proved by the books which are there kept.

So it is seen that only one of the sums was represented by transferable security. The others were only recorded in the book of the public debt.

§164. How, therefore, could the delivery of those sums be made? Purely and simply by the effect of the law or ipso jure. From the moment it was ordered that the debts against the public treasury be returned immediately to the bishop of the Californias it must be understood that the right to collect them was returned to him, that he received the titles necessary to that end. In going to the treasury to demand the payment of the interest he would not have had to present any other title than the law which had returned those estates to him, even with respect to the only one which was acknowledged, since it is sufficient that they belong to the fund in order that by virtue of that law the bishop of the Californias might have the legal personality necessary to that end.

§ 165. So it is that by a simple supposition, but one according to law, the credits of the Pious Fund against the national treasury ought to be considered as returned to the bishop of the Californias April 3, 1845, by virtue of and the immediate effect of the law of that date; said law being entirely fulfilled in this part, and the above mentioned bishop being in possession of all those assets.

In consequence according to that law, nothing can be conceded to [Page 494]the claimants in respect to the assets, because the only thing they could ask as successors of the bishop of the Californias he had obtained.

§ 166. But the ground of their claim in regard to the assets of the fund against the national treasury is distinct from the rest of it. In their “Brief History of the Fund, etc.,” presented on December 31, 1870, as an exhibit attached to the new claim which they made under the guise of a memorial, we read the following:

In the said sale (the one made in virtue of the decree of October 24, 1842), the assets of the fund against the Government, by reason of loans, were not included * * *. Some of these debts (the largest certainly) antedated the separation of Mexico from the dominion of Spain; but as they were debts of the viceroyalty of New Spain they were assumed and recognized as debts of the Mexican Republic, not only by the law of the 28th of June, 1824, but also by article 7 of the treaty of December 28, 1836, between Mexico and Spain. The interest of this capital must therefore be added to that of the proceeds of the sale in order to determine the amount of the revenue due and now unpaid by Mexico to the Pious Fund. (Page 6.)

Therefore the claimants demand that the commission compel the Government of Mexico to pay a part of its public debt simply because by a law and a treaty it acknowledged itself responsible for the debts contracted by the viceroyalty of New Spain.

§ 167. In order that we may see more clearly the character of the claim, it is convenient to consider it as that of an individual, as has been done with the other in§ 134.

The Juan Fernandez who was there mentioned presents the following claim:

My ancestors possessed large estates in Mexico at the time when it was a Spanish colony. The viceroys demanded of them various loans to cover the public expenses. After Mexico became independent it acknowledged the debts of the viceroyalty. In my inheritance I acquired the right of recovering the debts originated by those loans, but during the time I was a Mexican citizen I could obtain nothing for them. Now that I am a citizen of the United States I ask the commission that it direct that they be paid to me.

§ 168. Could such a claim be successful before this tribunal? The undersigned believes he can assure himself it would not, basing his opinion on all the decisions of analogous cases.

In the first place the commission is not competent to determine if the loans from which the debt claimed proceeded were legally exacted or constituted an injury, because they date from an epoch over which the jurisdiction of this tribunal does not extend; in the second place, although such loans had been exacted from an individual or a corporation with American citizenship after February 2, 1848, according to the decisions of the umpire, they should not be considered, from a general point of view, as matter proper for the cognizance of the commission; and finally, there is set up as an origin for the claim the enforcement of a contract made with Spain, or one which the law by which the Mexican Government acknowledged the debts of the viceroyalty implies, then, as this species of contract was made when the church claimant did not have American citizenship, the case becomes identical in this respect to that of Morris Taussig (No. 39 R. A.), in the decision of which the umpire expressed himself as follows:

This contract was made some time before Morris Taussig became a citizen of the United States * * * the umpire does not think that the commission can make any award in compensation for losses suffered on account of a contract entered into before Taussig was a citizen of the United States.

Secondly, if the fact that the party claimant is a religious corporation does not give it any privilege over any other private individual, a [Page 495]citizen of the United States, a demand for the enforcement of the contract entered into by the Government of Mexico before said party possessed American citizenship should not be allowed.

§ 169. Summing up all that has been said in relation to the assets of the fund against the public treasury there results:

1.
That they are not claimed (nor can be claimed) according to the decree of October 24, 1842, because they were not nor could have been affected by it; because it is absurd to suppose that a debtor incorporates into his treasury his own debt; because the claimants declare that the debts against the State were not included in the sales of the properties of the fund; and, finally, because by said decree the Government did not contract further obligation than that of paying to the fund £not to the bishop of the Californias) interest at 6 per cent on the proceeds of the sales of the country estates and other properties of the fund for the sums represented by their proceeds capitalized at 6 per cent.
2.
That, according to the law of the 3d of April, 1845, the only obligation contracted by the Government in regard to assets was to return them to the bishop of the Californias; and this obligation was entirely fulfilled in regard to the debts against the public treasury by the imme diate effect of the same law.
3.
That this commission can not, if it is to be consistent with its own decisions and be subject to the convention that created it, order paid debts contracted by the Spanish Government only because the Government of Mexico acknowledged them in the years 1824 and 1836, since neither the jurisdiction of said tribunal extends over said epoch, nor had the legal person making the collection when the obligation originated the citizenship which he to-day claims. This is applicable also to the sums borrowed from the fund by the Mexican Government, for the recovery of which the claimants do not allege any reason.

For these reasons the commission ought not to decide anything respecting the debts of the fund against the public treasury of Mexico proceeding from loans which antedate the separation of the management of the same fund from the bishop of the Californias.

§170. But there is even another motive for this refusal to decide, which the undersigned respectfully submits to the consideration of the umpire. Since the obligation of the Government of Mexico regarding the debts contracted by the vieeroyalty in favor of the fund to cover the public expenses of what was then the colony of New Spain proceeds from the fact that that Government on succeeding the Spanish in the representation of the sovereignty became substituted in the agreements to pay the debts contracted by the public administration, the Government of the United States should also, as successor of Mexico in Upper California, pay pro rata, or proportionally to the territory acquired by it, the part of the debt contracted to defray the general expenses of the colony of which that territory formed part.

If it should appear improper for this tribunal to decide it thus, it is no less so to determine any other question whatever relating to the public debt of the Government of Mexico, especially taking into account the debt contracted in an epoch to which the jurisdiction of this commission does not extend. And for this reason it can not be declared whether the Government is obliged to pay the capital taken by its predecessor and by it as a loan before February 2, 1848, nor can anything be determined in respect to the interest of that capital, [Page 496]because to order their payment would be absolutely the same in principle as to order the payment of the capital.

§171. Finally, to oblige the Government of Mexico to pay the interest of one part of its public debt—when it is well known that it can not pay it to all of its creditors—is to establish an irritating privilege in favor of an American corporation which could not even make valid this title at the time of the origin of the debt.

§ 172. Having treated of the points indicated at the beginning of this argument, it remains for the undersigned to respectfully request the umpire that, weighing carefully the arguments set forth, he adopt for his final decision the point of view that appears to him most just, equitable, and proper, with respect to the two parties interested, further taking into consideration that since February 2, 1848, the Government of Mexico has not received any benefit from the fund in question, and if the Catholic Church of Upper California has had the right since May 30 (1848) to the amount that to-day may be assigned to it of the capital of this fund, it has been the fault of its representatives not to have diligently demanded the division of the fund from that time forth. It is not just, therefore, to burden that Government with the payment of interest on that sum, for the same reason given by the umpire for not conceding to the claimants the payment of compound interest, lo wit, that the refusal of the Government to adjust this matter at the proper time is not satisfactorily proved. The payment of interest for a sum is either the return of proceeds received or a penalty for culpable delay, and in the present case there is neither one reason nor the other for pronouncing in favor of such payment.

§ 173. According to what has been shown, the writer could limit himself to the formulation of the following:

petition.

That if the umpire finds sufficient reasons for considering this claim as coming within the jurisdiction of the commission, he will decide the claim completely, assigning to the Catholic Church of Upper California the share of the capital of the fund to which he believes it is entitled, excluding the debts against the public treasury, without granting it interest for the time in which the representatives of the church should have taken steps for the division of the fund and failed to do so.

Supposing that the share assigned to said church be half of the fund, its amount would be the following:

For half of the cash value of the properties of the fund (see § 47) $161,916.66½
For half of the cash value of the debts against private parties (see §§ 63–90) 10,711.00
Total 172,627.66½

§ 174. But as the undersigned can not hope that his observations are formulated with sufficient clearness for their importance to be perceived, he deems it convenient to present also the other settlements which could be made in the decision of the case, on the basis that may be adopted for it, to wit:

1.
Granting interest upon the amount assigned as half of the capital of the fund for the time elapsed since the church claimant might have recovered it until July 31 of the present year, the period of time designated for interest in the cases in which it has been granted.
2.
Assigning to the church claimant half of the capital of the debts of the fund against the public treasury.
3.
Granting interest upon the half assigned of said debt also from May 30, 1848, to July 31, of the present year.
4.
Insisting on assigning to the church, claimant, only interest, as if the decree of October 24, 1842, had given it right to receive it; but regulating its settlement according to said decree.
5.
Conceding, moreover, the payment of the interest, which can be considered as acknowledged as being due on the debts of the fund against the public treasury on account of the law of June 28, 1824, and article 7 of the treaty of December 28, 1836, between Mexico and Spain—the only grounds alleged in support thereof, and the only provisions applicable in this particular case.

First settlement.

Annual interest upon the sums of $172,627.66½, $10,357.66, computer from May 30, 1848, to July 31, 1876 $291,746.09

Note.—This settlement is made from May 30, 1848, that being the date from which the umpire has considered the claimant as having American citizenship; but according to the treaty of Guadalupe Hidalgo the Mexican residents of Upper California were not to be considered as American citizens until after May 30, 1849.

Second settlement. (See § 91.)

Half of the debt of $20,000 placed in the Caja de Consolidacion during the Spanish rule. $10,000.00
Half of $201,856, 6 reals 4 grains which the Spanish Government took 100,928.37½
Half of $162,618, 3 reals 3 grains that the Tribunal del Consulado owed. 81,309.20
Half of the capital of $38,500 that the College of San Gregorio owed to the fund 19,250.00
Half of $68,160, 3 reals that Minister Esteva distributed in 1825 34,080.18½
Half of $3,000 taken from the fund to promulgate the bulls of Bishop Fr. Francisco G. Diego 1,500.00
Half of a note for $15,973, 5 reals due when a certain mortgage on the fund (not well defined) should be paid 7,986.81
Total 255,054.57

Note.—The debt, of $7,000, classed as bad by the American commissioner, is not included.

Third settlement.

Interest, at 5 per cent, on half of the debt of $20,000, this being the rate which the public treasury acknowledged according to the instruction of Sr. Ramirez, $500. Amount of this interest from May 30, 1848, to July 31, 1876. $14,083.56
Interest, at 5 per cent, on half of $201,856, 6 reals 4 grains taken at thai rate by the Government according to the instruction mentioned. 142,143.13
Interest, at 6 per cent, on half of the debt acknowledged at this rate by the Tribunal del Consulado 137,414.72
Interest, at 3 per cent, on the half of the debt acknowledged at this rate by the College of San Gregorio. 16,266.51
Total 309,907.92

Note.—The interests have been computed at the rate of their respective investments and only upon the assets that yielded them, because neither the law of June 28, 1824, nor article 7 of the treaty of December 28, 1836, nor any law or decree changed the rates of the interest of the public debt to the fund, nor was the part of that debt which yielded no income acknowledged as bearing interest.

[Page 498]

Fourth settlement.

Half of the annual interest on the value of the properties of the fund, estimated according to the decree of October 24, 1842—that is, by that corresponding to their proceeds calculated at 6 per cent (see § 47), $9,715. Amount in twenty years, viz, from October 24, 1849, until the same date of 1868 $194,300.00
Half of the annual interest of the proceeds of the debts of fund against private parties (see§§ 63–90), $642.66, amounting in the time stated in the previous item to 12,853.20
Total 207,153.20

Note.—The interests have been computed only irom October 24, 1849, because the claimants themselves have recognized that it should be thus, expressing themselves in these terms:

We have no right to claim all that was due and remained unpaid before the treaty of Guadalupe Hidalgo, because until that time the nationality of the church had not changed, and the damage (absque injuria) was not caused to citizens of the United States. But the first payment after that date became due on October 24, 1849, and then for the first time, it could have been demanded (although it was not).” (See the last reply of Mr. Doyle, dated January 1, 1875, No. 50.)

Thus, to grant interest to the claimants from the year 1848, inclusive, is to give them more than what they themselves ask, and, as it is said, “to show one’s self more popish than the Pope.”

Fifth settlement.

Annual interest upon half of the first debt of the fund against the public treasury at the rate of its investment, $500. Amount in twenty years from 1849 to 1868 $10,000.00
Annual interest upon half of the second debt at the same rate of 5 per cent, $5,046.41 100,928.20
Annual interest upon half of the third debt at 6 per cent, which was the rate of its investment, $4,878.55. Amount in twenty years 97,571.00
Annual interest upon half of the fourth debt at 3 per cent, the rate recognized, $577.50 11,550.00
Total 220,049.20

Note.—The reasons for this proposed settlement are the same as expressed in the notes to settlements 3 and 4.

The Government of Mexico trusts that the umpire examining this case anew will render finally a decision on it that, without depriving unjustly the inhabitants of Upper California and all the people of the United States of the benefits to which they may be entitled with respect to the Pious Fund of the missions, will either leave the question intact as outside the jurisdiction of this tribunal or decide it in a complété manner and without imposing more hardship upon the Mexican people than that which legal justice, equity, and the principles of public law require.

Eleuterio Avila.

  1. In the brief history of the fund, presented by the claimants on page 5, the following is said: “On October 24 another decree was issued by which it was ordered that the properties belonging to said fund should be sold for the sum which their income represents (capitalized at the rate of 6 per cent); that the products of this sale be incorporated into the public treasury, and that an obligation to pay an interest of 6 per cent upon the above-mentioned capital be recognized on the part of the Government.”
  2. This undoubtedly should be country properties.—Translator.
  3. According to the report of the Secretary of the Treasury for the year 1843, presented by the claimants, up to December 31 of said year there had been paid into the national treasury on behalf of the Pious Fund of the Californias the sum of $323,274.51; that is to say, very nearly the value of the productive properties above expressed, with the difference of less than $558.82.
  4. This arithmetical error implies a charge of $1,260 upon Mexico from the point of view of the decision rendered; that is to say, for interest at 6 per cent for twenty-one years.
  5. Adding this sum to the capital represented by the interest,$517,109.19,makes a total of $1,082,074,leaving a difference of $4,compared with the total stated in the inventory,due to an error by its author in calculation,he giving as a total of the amounts $206,521.36 and $162,618.41,$369,143.77 instead of $369,139.77.
  6. See note of the fourth settlement at the end of this argument.