Foreign Relations of the United States, 1902, United States vs. Mexico, In the matter of the case of the Pious Fund of the Californias, Appendix II

Exhibit A.

[Translation from the Spanish. See p. 30.]

Answer to the memorial upon the claim, presented by the United States of America against Mexico in regard to the so-called “Pious Fund of the Californias.”

Reserving the privilege to produce on the part of the Mexican Republic, in exercise of the right which belongs to it under the protocol concluded in Washington the 22d of May last, for the arbitration of this claim, proofs of the contentions which are hereafter set forth and of others that may be appropriate, such as defenses and proper allegations, the undersigned, the authorized representative of the Government of Mexico, asks that the Permanent Court of Arbitration of The Hague set aside the claim for the following reasons:

• First. Lack of title of the Archbishop of San Francisco and of the bishop of Monterey to present themselves as legal trustees of the Pious Fund of the Californias.
• Second. Want of right of the Catholic Church of Upper California to demand interests originating in the supposed fund.
• Third. Insufficiency or extinction of title on which the archbishop and bishop, above mentioned, base their claim.
• Fourth. Nonexistence of the object attributed to the institution of the fund, so far as regards Upper California.
• Fifth. The exclusive right of the Mexican Government to employ the fund and dispose of the proceeds, without the intervention of the church of Upper California.
• Sixth. The use which the Government made of said right; and
• Seventh. The exaggeration of the demand.

I.

The claimants agree with the Government of Mexico in admitting the following facts, proved by irrefutable documents:

• First. The Jesuits were the original trustees or administrators of the properties which constituted the Pious Fund of the Californias up to the year 1768, when they were expelled from Spanish dominions.
• Second. The Spanish Crown, in place of the Jesuits, took possession of the properties which constituted the aforesaid Pious Fund, and administered them by means of a Royal Commission until the independence of Mexico was achieved.
• Third. The Mexican Government which succeeded the Spanish Government was, as the latter had been, trustee (comisario) of the fund, and in this conception successor of the Jesuit Missionaries, with all the rights granted to them by the founders.

In order that the archbishop and bishop, the claimants, may be considered trustees (comisarios) by succession, as they contend, they would have to prove their actual position as successors in interest of the Mexican Government, co perpetual, general, or particular title. In no other way could the attitude in which they present themselves as creditors against their alleged debtor be explained.

In fact, they claim as title of succession that the direct representation of the government, and the indirect of the Jesuits, was granted to them by the decree of the Mexican Congress, issued on the 19th of September, 1836, which authorized the placing at the disposition of the Bishop of the Californias and his successors the properties belonging to the Pious Fund of the Californias, to be administered and invested in their enterprises, or other analogous ones, respecting always the wish of the founders. But the same claimants acknowledge that the aforesaid decree was repealed on the 8th of February, 1842, by General Santa Ana, provisional president of the Republic, invested with extraordinary powers, which devolve upon the Mexican Government the administration and employment of the proceeds of the properties in the way and manner which it should determine, in carrying out the objects proposed by the founders—the civilization and conversion of the heathen. Later, on the 24th of October of the same year, the properties were directed to be sold and the proceeds to be incorporated into the National Treasury to constitute a secured annuity (censo consignativo) at the rate of 6 per cent per annum, to be used for the purpose of the original foundation.

No later law granted to the bishops of the Californias the right to receive and apply to their enterprises the interests of the aforesaid annuity. It is true that the Mexican Government issued another decree, on the 3d of April, 1845, directing that all the properties of the Pious Fund of the Californias, remaining unsold, should be returned to the bishop of the Californias, and to his successors, for the ends set forth in article 6 of the law of September 19, 1836, without prejudice (it was said) “to what Congress shall afterwards determine concerning the properties already disposed of.” Although the tenor of this decree gave an excuse to the umpire under the mixed commission of 1875 to declare that the obligation of remitting to the bishop the proceeds of the fund was recognized in it, it has not seemed advisable to the claimants’ attorneys to allege it in support of their present claims, certainly because that decree refers to unsold properties, whose value clearly had not been incorporated into the National Treasury, and not to the revenues or interests upon the proceeds of the properties sold, touching which Congress had expressly reserved the right to decide. This right was never exercised, and therefore the last decree has not bettered the situation in which the bishop of the Californias was placed by the decree of the 8th of February, 1842, which deprived him of the charge of using for the missions the revenues from the annual 6 per cent upon the proceeds of the properties sold, which revenues are the only subject-matter of the present claim.

II

The Catholic Church of Upper California never could, of its own right, administer the Pious Fund of the Californias, nor demand its proceeds, for the simple reason that they were not granted it by the founders, nor by the Jesuits, who were the original trustees (comisarios), nor by the Spanish Government that succeeded them, nor by the Mexican Government that succeeded the Spanish, and which, like that Government and the Jesuits, acquired the right of using the properties of the fund in question for the missions of the Californias, or for any others within its dominions, at its free will and discretion alone. Such discretionary power will not permit coercion, which is an attribute of perfect right. Therefore, although for the sake of the argument, the representation of the Jesuit missions (expressly suppressed by Pope Clement XIV since the year 1773) might be conceded to the Catholic Church of Upper California, that church would have no right to demand the interests of the Pious Fund.

The decree of the 19th of September, 1836, above cited, on which the claimants pretend to base their rights, only conferred on the first bishop of the Californias and upon his successors the administration of the fund, during the will of the Government, with the obligation of employing the income for the ends indicated by the founders or for other like objects; but did not give either to them or to the church they represented an irrevocable right; and, moreover, it (this decree) was repealed by that of the 8th of February, 1842, which withdrew from the bishops of the Californias the administration of the fund and devolved it upon the Government.

III.

No existing law being able to establish any title to this claim, the claimants wish to supply it with the so-called foundation deed of the pious work, or with the decision rendered by the Mixed Claims Commission, established at Washington under the convention between Mexico and the United States, signed on the 4th of July, 1868, which decision was given on the 11th of October, 1875, claiming it to cause res judicata.

A. As to the first, it will suffice to show that it does not favor the pretentions of the claimants, to quote the following clauses from the instrument which they take as an example of the donations that were made to the fund:^a

This donation * * * we make * * * to said missions founded, and which may hereafter be founded, in the Californias, not only as for the maintenance of their religious, and to provide for the support and conduct of divine worship, but also to aid the native converts and catechumens by the same (probably “from the misery”) of that country: so that if thereafter, by God’s blessing, there be means of support in the “reductions” and missions now established—as ex. gr. by the cultivation of their lands, thus obviating the necessity of sending from this country clothing and other necessaries—the rents and products of said estates shall be applied of (surely to) new missions * * * and in case the Society of Jesus, voluntarily or by compulsion, should abandon said missions of the Californias, or, which God forbid, the natives of that country should rebel and apostatize from our holy faith, or in any other (such) contingency, then, and in that case, it is left to the discretion of the reverend father provincial of the Society of Jesus in this New Spain, for the time being, to apply the profits of said estates, their products and improvements, to other missions in the undiscovered portions of this North America, or to others in any part of the world, as he may deem most pleasing to Almighty God; and in such a way that the government of said estates be always and perpetually continued in the reverend Society of Jesus and its prelates, so that no judge, ecclesiastical or secular, shall exercise any control therein * * * we desire that at no time shall this donation be set aside nor shall any judge, ecclesiastical or secular, undertake to investigate or intervene to ascertain whether the conditions of this donation be fulfilled; for our will is that in this matter there shall be no pretense for such intervention, and that whether the said reverend society fulfills or does not fulfill the trusts in favor of the missions herein contained it shall render account to God, our Lord, alone.

B. The decision above referred to, rendered in Washington on the 11th of November, 1875, could not prejudge the present claim, which, therefore, can not be regarded as res judicata.

Now we are treating of a claim for new interests, and even if the claimants maintain that in condemning Mexico to pay the accrued interests up to a certain date, it was declared impliedly that the capital existed and would continue to produce revenues, those would be considerations or reasons (motifs) for the judgment which was made that the Republic of Mexico must pay a definite amount of accrued interest to which the claim was limited.

The immutability of a judgment and its force as res judicata belong alone to its conclusion (conclusión); that is, to that part which pronounces acquittal or condemnation, quod jussit vetuitve. This proposition is scarcely open to question, and therefore the greater part of authorities, in expounding the theory of res judicata, attributes it to the decisory part of the judgment, so that its extension to the reasons (motifs) is a matter of controversy only to a few.

Among those who favor that extension are found, it is true, authorities as noted as that of Savigny; but there are no less noted ones, and they are in greater numbers, who hold the contrary opinion. The same noted authority that I have just named, declares that—

“It is a very old doctrine, sustained by a large number of authorities, that the legal principle of res judicata belongs exclusively to the decision (resolución), and the reasons are not embraced in it,” summing up his doctrine in these terms:

“The force of res judicata does not exist except in the decisory part of the judgment.”

(Savigny: Droit Romain, sec. 291, T. 6, p. 347.)^a

“The greater number of authorities,” he adds, “deny absolutely to the reasons (motifs) the force of res judicata, not excepting the case where the reasons (motifs) are a part of the judgment. (Sec. 293, T. 6, p. 382.)^b

Griolet expresses himself as follows:

The judgment supposes always several propositions which the judge has had to admit in rendering a decision upon controverted rights and which under our law (the French) the judgment usually expresses. These are the reasons (motifs). We have already shown, in opposition to the opinion of Savigny, that neither the subjective nor objective reasons (motifs) should share the authority of the judgment, because the judge has not the duty of deciding upon juridical principles nor upon the existence of facts.

* * * We have, then, already shown, in all cases that may be presented, that the authority of res judicata does not embrace the reasons (motifs) of the judgment, nor even the affirmation or denial of the cause of the rights adjudged. * * *

The same writer adds:

None of our authorities, in fact, have shown a system analogous to that of M. Savigny upon the authority of the reasons, and French jurisprudence recognizes the principle that res judicata does not extend to any of the reasons of the sentence.* * *

On the authority of res judicata (pages 135, 168, 169, and 173.)^c

As to Prussian law, the same Savigny says:

Regarding the force of the reasons, a text exists that at first glance appears to exclude it absolutely, giving the greatest importance to the part that contains the judicial decision. (Allg. Gerichtsordnung, I, 1313, p. 38.) Judges and those rendering decisions must carefully distinguish the real judgment from the reasons (motifs), and give them a distinct place, and never confuse them, because simple reasons should never have the force of res judicata. (D. R., sec. 294, T. 6, pp. 389, 390.)^a

Spanish tribunals have constantly excluded appeal for annulment attempted against the foundations of a definitive sentence by not recognizing in them, except in the decisory part, the force of res judicata, the only subject for appeal. (Pantoja, Rep. pp. 491, 955, 960, 970, and 979.)

In the particular case (which is ours) of a demand for interests founded on a judgment which declared them due, after having heard the pleas of the defendant against the right that claimed the capital or rent, Savigny is of opinion that this right has in its favor the force of res judicata; but, at the same time, he observes that Buchka solves the question in the contrary sense in accordance with Roman law; that, in the same sense, the Prussian tribunals have solved it, for the reason that the recognition of a right in the reasons (motifs) of a decision does not appertain in fact to the judgment, whose decisory part alone constitutes res judicata; and Savigny adds:

We have not, on this point, the decision of Roman law, and the texts that are usually cited are foreign to the matter. (D. R. sec. 294, Nos. 3 and 4, note (r) of 7, and sec. 299, No. 4, t. 6, pp. 397, 401, 446.)^b

Nevertheless it is positive that Ulpian says:

Si in judicio actum sit usuraeque solae petitae sint, non est verendum ne noceat rei judicatae exceptio circa sortis petionem: Quia enim non competit nec opposita nocet.

Such is the principle of the law 23 D., of Exc. Rei. Jud.; and even though it appears to be in contradiction with what follows in it, that apparent conflict of law is explained satisfactorily by Griolet, pages 46 and 47, to which I refer in order to avoid dealing at too much length with this subject. I have adduced all the preceding citations because up to this time the point has been but lightly touched upon in the diplomatic correspondence in connection with the claim.

I must add, however, that if the foregoing is true respecting judgments rendered by judges invested with public authority to act in the case, their reasons (motifs) and inferences (consecuencias) it is much more true with regard to awards rendered by arbitrators who have no real jurisdiction nor other powers than those granted them in the arbitration agreement (compromiso). Thus it is that if all that relates to the plea and effect of res judicata is of strict (limited) interpretation (Griolet, on the authority of res judicata, p. 68), it must be much more so when it relates to arbitral awards.

Of these arbitral awards a Roman law has said:

De his rebus et rationibus et controversiis judicare arbiter potest, quæ ab initio fuissent inter eos qui compromisserunt, non quæ postea superveneunt. (L. 46 D, de recept. Quiarb., T. L. p. 25.)

The civil law attributed so limited a scope to awards that it did not concede to them that they should produce the effect (accion) of res judicata. The first law of the code de recept is to the following effect:

Ex sententia arbitri ex compromisso jure perfecto arbitri appellari non posse saepe receptum est; quia nec judicati actio inde præstari potest.

The inadequacy of arbitral decisions, under international law, to decide future cases, although they may be analogous to those already decided, has been expressly recognized by the Government of the United States, as may be seen in Moore’s “International Arbitrations,” with regard to the mixed commission, convoked at Halifax under the treaty of Washington, which condemned the United States to pay to the British Government the sum of $5,500,000 for damages and injuries caused by American fishermen, and in the case of a claim presented by the Spanish Minister, Sr. Muruaga, growing out of the confiscation of cotton, considered as contraband of war, which the Spanish subjects, Mora and Larrache, suffered. The Secretary of State, T. F. Bayard, said in this connection in a note of the 3d of December, 1886:^a

Decisions of international commissions * * * are not regarded as authoritative, except in the particular case decided * * * they do not in any way bind the Government of the United States, except in those cases in which they were rendered. (Papers relating to the Foreign Relations of the United States, year 1887, p. 1021.)

The same honorable Secretary, in the document cited (further), said:

Such decisions are molded by the nature and terms of the treaty of arbitration.

Taking into account without doubt that:

Omne tractatum ex compromisso sumendum: nec euim aliud illi (arbitro) licebit, quam quod ibi ut afficere possit cautum est: non ergo quodlibet statuere arbiter poterit, nec in qua re libet, nisi de qua re compromissum est.

Referring to the stipulations contained in the aforesaid convention of July 4, 1868, it is seen that the claims of the American citizens against Mexico and of Mexican citizens against the United States, which were permitted to be submitted to the mixed commission created by that convention, must indispensably embrace the following conditions:

• First. To have arisen out of transactions of a date later than the 2d of February, 1848, and before the 1st of February, 1869 (the date of the exchange of ratifications of the convention).
• Second. To be founded upon damages calculable in money caused to the persons or property of the claimants of either of the two countries by the authorities of the other.
• Third. To have been presented to the government of the claimants, and by it or in its name to the mixed commission within eight months (capable of being extended to eleven months), counting from the first meeting of the arbitrators.

It may be noted, therefore, that the claim for interests of which payment is now asked could not be considered under the first or third of the above conditions. It seems useless to take up further time by showing or continuing to dwell upon the lack of cause with which res judicata is alleged in the new claim which is now presented against the Mexican Government. The award rendered by the umpire in 1875 became complete and absolutely fulfilled with the payment that Mexico made of $904,070.79 Mexican gold, to which it was condemned, and that award can not be applied to a new claim. Admitting in virtue of all the allegations that the present claim is not declared already determined by the award rendered in 1875, the first objection—the clearest plea that we oppose to the claim—is that any right that the claimants might have had in the beginning of the year 1848 was completely extinguished by the treaty of peace and friendship which was celebrated the 2d of February of that year between Mexico and the United States, because in article 14 (of that treaty) it was declared that all debts and claims not decided up to that time and which the citizens of the latter of those nations should bold against the Government of the former would be considered ended and canceled forever. The text of the article of that treaty which thus provides is as follows, and I quote it in English in order that it may be better understood by the party complainant. It reads as follows:

The United States do furthermore discharge the Mexican Republic from all claims of citizens of^a the United States not heretofore decided against the Mexican Government which may have arisen previously to the date of the signature of this treaty; which discharge shall be final and perpetual, whether the said claims be rejected or be allowed by the Board of Commissioners provided for in the following article, and whatever shall be the total amount of those allowed.

The answer which the claimants have made to this peremptory provision amounts to saying that they do not demand the interests accrued before the date of the treaty, but those accrued since that date, and they have not demanded the principal, because they do not think they have any right to it, Mexico being able to indefinitely retain it. In giving this answer, they do not reflect that the fourteenth article, above cited, not only exonerates Mexico from the claims or demands which might be thereupon presented, but from all claims not heretofore decided against the Government, and in this class was included the claim of the Pious Fund, not only the capital but also the interests being comprehended therein. All that, in fact, is understood in the English word “claim,” which means as well the claim or demand which is made to something to which we believe ourselves entitled, as to the cause, origin, or foundation for that claim: “A right to claim or demand something; a title to any debt, privilege or other thing in possession of another; also a title of anything which another should give or concede to or confer on the claimant” according to Webster’s dictionary, which is the best authority on definitions in the United States, and possibly wherever English is spoken. (See Webster’s English Dictionary, under Claim, the second acceptation of word.)

This interpretation of Article XIV is corroborated by reading the beginning of the article following, Article XV, the text of which is as follows:

The United States exonerating Mexico from all demands on account of the claims of their citizens mentioned in the preceding article, and considering them entirely and forever canceled.

Here is seen the distinction made between demands and claims and that this last word is used in the sense of the title or right which gives rise to a claim.

Nor could it be otherwise, when it was very clearly the intention of this agreement to leave nothing pending that might alter or disturb the peaceable and friendly relations which were renewed in that treaty. By this was made, as is frequently done in similar treaties, an agreement to completely cancel all claims and demands for indemnity pending, or which for past acts might arise between the two Governments, providing also for the settlement of private claims. The same article, the fifteenth, the beginning of which I have copied, provided that three and a quarter millions of dollars be reserved to satisfy the claimants, as far as their claims should be approved by an American commission which it ordered created for that purpose, and which was created by the Government of the United States, a commission before which, if aware of their right, the representatives of the Catholic Church of Californias would have presented it. If they did not do so, they can not, on that account, now make the claim against Mexico, which is released from all liability, from all demands on account of the claims of their (of the United States) citizens.

It seems inconceivable, in view of these articles of the treaty of Guadalupe Hidalgo—the most solemn we have ever celebrated with a neighboring nation, and which is in force because it is perpetual in character—that it should be claimed that the debt known as the Pious Fund had not been canceled in virtue of its stipulations. What privilege did this fund have to be excluded from the positive declaration of the treaty? Is it not strange that the attorneys of the claimants, in their zeal to reply to this plea, should have wished to limit the meaning of the treaty on this point—to cancel the interest of the fund prior to February, 1848? And what is scarcely less explicable is that the arbitral award subscribed by Sir Edward Thornton should have accepted the same interpretation. For this, among other reasons, we consider said judgment as notoriously unjust, there being no injustice more manifest than the judgment pronounced by an arbitrator who decides a question between citizens of one country and the government of another, ignoring the stipulations of a solemn treaty made by both countries, the force of which no one disputes.

In case it should be determined (contrary to all probability) that the treaty of Guadalupe Hidalgo left in force the claims of American citizens against Mexico relative to the Pious Fund, and existing, as alleged, at the time of celebrating said treaty, there is still another ground upon which that claim might be canceled, and consequently the right to collect interest on capital. It is well known that the Mexican Republic, in the exercise of its sovereignty, and for high political reasons, which the Mexican commissioner explained in his opinion of 1875, ordered in the years 1856 and 1859, first, the disentailing, following it by the so-called nationalization of the church property, but which, properly speaking, was not actually such, but only the prohibition to the clergy of continuing in control of those national properties. If, as has been properly said, the validity and principles of this provision can be disputed from the standpoint of canon law, from a political and social point of view, they are unquestionable, and no less so in view of the favorable results which that action has produced in the way of establishing peace and of promoting the general welfare of the Republic.

From the standpoint of common law and private international law, it seems clear that the capital whose interest is claimed in the character of a secured annuity (censo consignativo), or of general annuity (censo), and which should be considered as real property (Sala. Dro. Real de Espana, torn I, Lib. 2, tit. 14, and authors cited), was subject to the legislation of the country in which it was held, to the jurisdiction and statute law rei sitae, whatever might be the nationality of the annuitants.

On the other hand, it should be taken into account that the failure for many years to collect the interest which is now claimed makes it subject to the laws of limitations of the country, concerning which Article 1103 of our Civil Code applies to the case, and says as follows:

Emphyteutic or annuity pensions, revenues, rents, and any other loans whatsoever, not collected when due, remain barred in five years, counting from the maturity of each of them, even though the collection be attempted by virtue of a real or personal action.

If we are to suppose that the demand of the claimants was not canceled by the decisive Article XIV of the treaty of Guadalupe Hidalgo, or on the other grounds which we have just reviewed, there is yet another reason which would make it seem subject to Mexican legislation, to which an annuity, established by that Government in the year 1842 is undoubtedly subject. Said Government, for the purpose of settling the public debt, issued, under date of June 22, 1885, a decree calling upon all its creditors for the examination and funding of their debts arising from supplies, employments, loans, or any other act or business which might become a charge upon the national treasury, and for this purpose it fixed a suitable time, which was extended on several occasions for the presentation of said claims. Article XV of the law of September 6, 1894, was of the following tenor:

The debts, evidences of public indebtedness, and the following claims, are forever barred, without being able to constitute any cause of action, or to be of any validity whatever: * * * All claims included in Articles I and II, which were not presented for this funding within the period fixed by the article preceding or which when they are presented, the interested party may not comply with the requirements of said decree.

It is undeniable that the supposed claims for capital and interest made against the Government of Mexico by the archbishop and bishops of the Church of Upper California were not presented for adjustment in compliance with the law of 1885, nor did the pretended creditors avail themselves of the new period which the said decree of 1894 granted them in Article XIV as a final and last resort. The lapse (caducidad) or barring of suit, or supervening plea, would leave without effect even a former judgment having the force of res judicata—a principle of well investigated law recognized even by the present claimants.

IV.

The claimants state that the object of the Pious Fund of the Californias was to provide for the conversion of the Indians and for the support of the Catholic Church in the Californias. This being a double object, it is necessary to distinguish between the two parts which constitute it. The first part, the conversion of the pagan Indians to the Catholic faith and to the obedience of Spanish authority, is unquestionable, and must be considered as the principal and direct object of the missions intrusted to the Society of Jesus by the Catholic King, indorsed by the founders of the Pious Fund, and subsidized by the public treasury of Mexico. The other part of the object—that is, the support of the church in California, was not the principal or direct object of the establishment of the fund, but the means of carrying out the spiritual conquest of uncivilized Indians through the religious missionaries.

This distinction being made, it is understood that the Catholic worship was an object of the missions subordinate to the spiritual conquest of the uncivilized Indians; hence it follows that the nonexistence of uncivilized or idolatrous Indians in a specified region, or of the suppression therein of the Catholic missions, instituted for the purpose of subjugating or Christianizing them, should entail at the same time the withdrawal of the support offered the missionaries; not their exclusive application to fostering the Catholic faith, otherwise it would be an open violation of the intention of the benefactors who founded said pious work. Upon the expulsion of the Jesuits ordered by King Charles III and the consequent cessation of the missions of New Spain, the suppression of the order followed, which Clement XIV declared in his bull, issued the 21st day of July, 1773, paragraph 32, which reads:

But as regards the religious missions we desire to extend and include all that has been decreed concerning the suppression of the Society (of Jesuits), reserving (at the same time) the privilege of providing the means by which not only the conversion of the infidels, but also the peaceful settlement of dissensions maybe obtained and secured with greater facility and stability.

And it is a fact worthy of note that the missions founded by the Jesuits never extended beyond the limits of Lower California. The mission farthest north that they had in charge was that of Santa Maria, below the thirty-first degree of latitude, and was therefore outside of the limits of Upper California, as fixed in the Treaty of Guadalupe Hidalgo.

The missions of Upper California were undertaken after the expulsion of the Jesuits by the orders, not of the Society of Jesus, nor of the Holy See, nor any other ecclesiastical authority, but of the viceroy of New Spain, with the approval of the King, in 1769 and 1762.^a

As national enterprises the missions of Upper California were naturally abandoned by the Mexican Government when the United States acquired that region. The abandonment became necessary by the change of authority and jurisdiction over the territory disposed of to the United States, and, moreover, the Mexican Government had the original authority which it had inherited from the Spanish Government to abandon missions and establish other new ones for the conversion of infidels within its dominions.

No only did the missions of Upper California cease on the 7th of July, 1846, as national enterprises in charge of the Mexican Government, but the Catholic Church itself ceased as a legal entity, inasmuch as its reestablishment as a corporation did not go into effect until the 22d of April, 1850, in virtue of the statute of that date of the State of California.

Finally, it is necessary to take into account that in Upper California there exist no tribes of uncivilized Indians whose subjugation to the secular power of New Spain and conversion to the Catholic faith was the principal object or direct end of the missions of the Jesuits endowed with the properties of the Pious Fund of California.

V.

The right of investing the fund and applying its proceeds according to the intentions of the donors of the properties which constitute it were legitimately exercised without the intervention of ordinary clergy, first by the Jesuits, followed by the Spanish Crown, and lastly by the Mexican Government. The claimants can never prove that any legitimate authority has ever made any law or decree to restrict that right. In exercise of this right the Mexican Government ordered, by the decree of September 19, 1836, that the administration of the fund be given to the bishop of California and his successors as dependents of said Government; the same commission was withdrawn from the bishop and his successors by the decree of February 18, 1842; the sale of the properties which composed the fund and its constitution into the secured annuity (censo consignativo) upon the National Treasury was ordered by decree of October 24, 1842; and two and one-half years later, by the decree of April 3, 1845, the “creditos” and other properties were ordered returned to the then bishop of California and his successors, reserving expressly the right to dispose of the proceeds resulting from the properties sold, the interest on which is the very subject-matter of this claim.

This exclusive right of the Mexican Government is recognized on the part of the claimants.

In the reply made February 21, 1901, to the honorable John Hay, Secretary of State of the United States, by Messrs. Jackson H. Ralston and Frederick L. Siddons, attorneys for the Roman Catholic bishops of California, are found the following words:^a

No dispute has ever been raised as to the right of the Mexican Government to administer the property in question. Mexico must continue the trust relation which she has herself assumed. It should be borne in mind that we never have had or made any claims to the principal. From its origin it has been in the hands of trustees; first, the Jesuits; then in the Spanish Crown; then the Government of Mexico; then in the bishop under the law of 1836; then, from February 8, 1842, again in the Mexican Republic. All of these changes were accomplished by law—the act of the sovereign.

VI.

The use which the Mexican Government made of the sovereign privilege to reassume the right of administering the fund or investing its proceeds to the exclusion of the church of California in 1842, can not be considered in law prejudicial to the party claimant. “Qui jure suo utitur neminem laedit.”

Nor for the same reason can the fact that this government, since it ceased to exercise authority over Upper California, should have centered all its care and protection on Lower California, not only in the civil but also in the ecclesiastical order, and discontinued consequently to apply to Upper California the revenues intended to foster the Catholic missions, justify the claim against the Mexican Republic.

The missions of the Jesuits having discontinued in that territory, there remained no necessity that its inhabitants should receive from Mexico supplies, clothing, and other means of subsistence; its lands were about to come under cultivation, as in fact they did, with marvelously productive results; and under these circumstances the Government was at liberty, as trustee (comisario), in place of the Jesuits, to apply the proceeds of the fund to other missions, without exposing itself to censure, complaint, or claim from anyone, conforming entirely to the will of the founders expressed in the foundation deed of the fund, according to the language of the text above cited.

VII.

The exaggeration of the demands, or plus petición, is demonstrated in various ways, and, reserving the privilege of presenting in the course of the proceedings a basis for a settlement, which up to this time it has not been possible to conclude, I make the following observations:

In the first place, it is most evident that to solicit now, in Mexican gold money, the payment of the interests which are claimed because other interest on the same capital were ordered paid in this money by the award made in November of 1875, is to ask more than double what the interest would amount to at 6 per cent, to which right is claimed. The reasons consist in this, which no one denies: In 1875 the ratio between the value of gold and silver was almost exactly 16 to 1, the value of gold later having more than doubled that of silver. Now, then, in pesos of silver, and in no other way, were the properties of the Pious Fund valued, and for the value which this money represented, they were sold, and the amount resulting from the sale recogonized by the Mexican Government in favor of said fund. Mexico has never had nor has it now any other standard for its money than the silver peso; its gold money is coined in very small quantity, and is not used to regulate the commercial values. When the claimants ask for interest in so many dollars, they speak of dollars of their own country, as they are there called, with the understanding that they are of gold. The Mexican gold of which they speak is at very slight discount with respect to American gold; but in every case the dollars of Mexican gold are of more than double the value of the silver dollar, in which money only could the interest of the Pious Fund be collected, if they should belong to the claimants.

Therefore, the claim of the bishops of California is usurious in asking, not only 6 per cent on the capital, but much more than 12 per cent per annum.

Another of the exaggerations of the claim is the endeavor to collect, not the half (which is even too much) of the interest on capital, since the other half would have to be applied to the missions in Lower California, but now 85 per cent is asked, because this is the proportion, it is said, between the populations of Upper California of the United States and Lower California of Mexico. Thus it is argued as if it had been intended that the fund should be applied to the entire population and not to the conversion and improvement of uncivilized Indians. This reasoning would only have held good if the entire population of both Californias were of barbarous Indians. This argument, then, can not be sustained, which demonstrates only the zeal, disproportionate in this case, of the attorneys and counsellors of the claimants. In order to comply with the spirit and intention of the founders, the proportion should be made between the unconverted and uncivilized Indians of one of the Californias in comparison with those of the other; and it is now known that in that belonging to the United States, there are not many, perhaps not even one, in that condition.

Another exaggeration of the claim consists in including in the amount demanded the value of the properties that belonged to the Marquis de las Torres de Rada. The value of these properties form, undoubtedly, the greater part of the amount demanded, and there is, nevertheless, no legal basis on which to claim it. This assertion will, no doubt, astonish the claimants, who have made a minute study with regard to the donation of said properties made to the Pious Fund; but it is to be observed that there has very recently been discovered in the general archives of the Republic important data which verify the foregoing statement. These data are contained in the book printed in the eighteenth century, which accompanies the present reply, and whose authenticity will be properly and opportunely proved. In it is given the history of the protracted litigation concerning the inheritance of the Marquis de las Torres de Rada, and at the close of the suit, the supreme “consejo de Indias” in Spain, the court of last resort capable of acting in the case at that time, declared null and without value the inventories and valuations of the properties which remained at the death of the said Marquis, as well as the adjudication which was made of it to the Marchioness, his widow. This judgment of the court of last resort rendered the dispositions of the Marchioness, widow of Torres de Rada, worthless, and therefore those of the Marquis de Villapuente in the will which the latter made with power to will from his cousin, the Marchioness. Now, then, said will was the basis of the donation which both made to the Pious Fund of certain properties which did not legally belong to either of them. I will not prolong this matter with explanations, but refer to the accompanying book, principally to the concluding judgment, and whose original, as will be proved at the proper time, exists in the Spanish archives of the “supremo consejo de Indias.” There can be no doubt as to the nullity of the donation made by the Marchioness to the Pious Fund of properties which did not belong to her, by the recognized principle of nemo plus juris transferre potest quam ipse haberet. There should at least then be deducted from the sum demanded by the claimants the value of the properties to which I refer.

In conclusion, I believe I have demonstrated—

• 1. That the claimants lack the right of presenting themselves as legitimate trustees of the Pious Fund of the Californias.
• 2. That the Catholic Church of Upper California has no right to exact from the Government of Mexico the payment of interest upon the supposed capital or fund.
• 3. That the rights alleged by the archbishop and bishop, the claimants, are either inadequate to sustain the case or they have been canceled chiefly by the treaty of Guadalupe Hidalgo, which canceled all claims of citizens of the United States against the Republic of Mexico, exonerating the latter from all demands on account of claims against it, which were in existence February 2, 1848, in favor of said citizens, as is seen in Articles XIV and XV of the treaty. Even in the absence of this treaty, the right of the claimants would have been canceled by the various general laws which were made successively by this Republic, to which, without doubt, the annuity (censo) which constituted the Pious Fund was subject.
• 4. That the real object of this fund, the purpose for which it was intended, was the conversion of the barbarous Indians to Christianity and their civilization, and this being so, that there are now no barbarous Indians to whom to apply it in California.
• (5. No such number given in original.)
• 6. That the right rests with the Mexican Government and with it alone to direct in its territory or out of it this or other application of the fund, without any obligation to account to the bishops of California for its action in the matter.
• 7. That if the claimants should have any right to collect interest, it would not be for the sum which they ask, which is excessive inasmuch it has been calculated in gold dollars, when the sums which were taken for its basis have been in silver dollars, and to-day the difference between the two moneys is not the same as in 1875, when Mexico was condemned to pay other interests in gold. Moreover, the portion of interest which belonged to Upper California is computed according to the population and not by the number of Indians in whose conversion it has to be employed; and, lastly, the properties donated by the Marchioness de las Torres de Rada are included in the value of the Pious Fund, when new evidence proves the nullity of that donation.

For these reasons and others which will be alleged when the opportunity arises, I respectfully pray in the name of the Mexican Government to the court to disallow the claim brought against this Governmnt by the representatives of the Catholic Church of California, a claim contrary in general to justice, and in particular to the treaty of peace and friendship in force between the Mexican Republic and the United States of America.

Mexico, August 6, 1902.

Ignacio Mariscal,
Minister of Foreign Affairs.

1. The full and exact trusts, including all omitted portions, read as follows:

   To have and to hold, to said missions founded, and which hereafter maybe founded, in the Californias, as well for the maintenance of their religious, and to provide for the ornament and decent support of divine worship, as also to aid the native converts and catechumens with food and clothing, according to the destitution of that country; so that if hereafter, by God’s blessing, there be means of support in the “reductions” and missions now established, as ex. gr. by the cultivation of their lands, thus obviating the necessity of sending from this country provisions, clothing, and other necessaries, the rents and products of said estates shall be applied to new missions to be established hereafter in the unexplored parts of the said Californias, according to the discretion of the Father Superior of said missions; and the estates aforesaid shall be perpetually inalienable, and shall never be sold, so that, even in case of all California being civilized and converted to our holy catholic faith, the profits of said estates shall be applied to the necessities of said missions and their support; and in case that the reverend Society of Jesus, voluntarily or by compulsion, should abandon said missions of the Californias, or (which God forbid) the natives of that country should rebel and apostatize from our holy faith, or in any other such contingency, then, and in that case, it is left to the discretion of the reverend father provincial of the Society of Jesus in this New Spain for the time being to apply the profits of said estates, their products, and improvements to other missions in the undiscovered portions of this North America, or to others in any part of the world, according as he may deem most pleasing to Almighty God, and in such ways that the government of said estates be always and perpetually continued in the reverend Society of Jesus and its prelates, so that no judges, ecclesiastical or secular, shall exercise any control therein or intervene in or about the same; and all such rents and profits shall be applied to the purposes and objects herein specified, i. e., the propagation of our holy catholic faith; and by this deed of gift we, the said grantors, both divest ourselves of and renounce absolutely all property, dominion, ownership, rights, and actions, real and personal, direct and executive, thereover, and all others whatever which belong to us or which from any other cause, title, or reason may belong or appertain to us; and we cede, renounce, and transfer the whole thereof to said reverend Society of Jesus, its missions of Californias, its prelates and religious, under whose charge may happen to be the government of said missions and of this province of New Spain, now and at all times hereafter, in order that from the profits of said estates and the increase of their cattle, large and small, their other gains, natural or otherwise, they may maintain said missions in the manner above proposed, indicated, defined, and laid down forever. (Following parts of quotation not included as not properly trusts.)—J. H. Ralston, agent United States.

2. The exact language of M. Savigny is as follows:

   “C’est une doctrine fort ancienne et soutenue par un grand nombre d’auteurs que l’autorité de la chose jugée appartient au jugement seul, et non à ses motifs, et cette doctrine se résume en ces termes: L’autorité de la chose jugée n’existe que pour le dispositif du jugement.” (Savigny, vol. 6, p. 357.) J. H. Ralston, Agent United States.

3. “La plupart refuse absolument aux motifs l’autorité de la chose jugée sans même excepter le cas où les motifs font partie intégrante du prononcé du jugement.” (Savigny, vol. 6, pp. 393, 394.) J. H. Ralston, Agent United States.

4. “La décision suppose et le plus souvent, dans notre droit, le jugement exprime diverses propositions que le juge a dû admettre pour rendre sa déclaration sur les droits contestés. Ce sont les motifs. Nous avons déjà montré, contrairement à l’opinion de M. de Savigny, que ni les motifs subjectifs, ni les motifs objectifs ne doivent participer à l’autorité des jugements, parce que le juge n’a pas mission de prononcer sur la vérité des principes ou sur l’existence des faits.” (Griolet, p. 113.)

   “Nous avons aussi montré dans toutes les hypothèses l’autorité de la chose jugée refusée à tous les motifs des jugements, même à l’affirmation ou à la négation de la cause des droits jugés.” (Griolet, p. 117.)

   “Aucun de nos auteurs en effet n’a enseigné un systême analogue à ceiui de M. de Savigny sur l’autorité des motifs. Et la jurisprudence reconnît en principe que l’autorité de la chose jugée ne s’étend à aucun des motifs de la décision.” (Griolet, p. 103.) J. H. Ralston, Agent United States.

5. “(a) Quant à l’autorité des motifs, il y a un texte qui au premier abord semble l’exclure absofument et attacher la plus haute importance à la place qu’occupe une décision judiciaire. Allg. Gerichtsordnung, I, 13, sec. 18: Les collèges de juges et les rédacteurs des jugements doivent soigneusement distinguer la décision réelle de ses motifs, et leur assigner une place distincte, et ne jamais les confondre, car de simples motifs ne doivent jamais avoir l’autorité de la chose jugée. (Savigny, vol. 6, p. 401.) J. H. Ralston, Agent United States.

6. “(b) Il en est de même quand le défendeur a été condamné à payer les intérêts d’une créance ou les arrérages d’une rente après avoir contesté le droit du demandeur au capital ou à la rente; ce droit se trouve investi de l’autorité de la chose jugée, par la condemnation.(q)

   “Nous n’avons sur ce point de décision du droit romain, et les textes que l’on a coutume de citer sont étrangers à la matière (Savigny, vol. 6, pp. 458, 459). J. H. Ralston, Agent United States.

   “(q) Ici encore Buchka a bien résolu la question pour le droit actuel, mais pour le droit romain il a résout à tort en sens inverse. Vol. 1, pp. 307, 308; vol. 2, pp. 184, 191. J’ai déjà signalé, § 294, notes (n) and (r), quelques décisions erronées des tribunaux prussiens sur cette question.

   ”

7. The full paragraph referred to, supplying all omitted matters and correcting the arrangement of words, reads as follows:

   “But, aside from this criticism, I must be allowed to remind you that decisions of international commissions are not to be regarded as establishing principles of international law. Such decisions are molded by the nature and terms of the treaty of arbitration, which often assumes certain rules, in themselves deviations from international law, for the government of the commission. Even when there are no such limitations, decisions of commissions have not heretofore been regarded as authoritative, except in the particular case decided. I am compelled, therefore, to exclude from consideration the rulings to which you refer, not merely because they do not sustain the position for which they are cited, but because, even if they could be construed as having that effect, they do not in any way bind the Government of the United States, except in those cases in which they were rendered.”—J. H. Ralston, Agent United States.

8. The words in italics “citizens of” omitted in the answer.—J. H. Ralston, Agent United States.
9. Should be 1772. J. H. Ralston, Agent United States.

10. A full and complete extract from the Diplomatic Correspondence (p. 52) above quoted partially and imperfectly, reads as follows:

    “No dispute has ever been raised as to the right of the Mexican Government to administer the property in question and charge itself, as a trustee, with the payment of a definite sum. No demand has ever been made for the repayment of the principal sum. The bishops of California and all other parties in interest have treated their claim against the Mexican Government as being a claim for an annuity, the amount of which annuity has been fixed by the Mexican Government at a sum equal to 6 per cent upon the total capitalization. Mexico, by her acts in 1842, recognized the definite character of the claim against her, acknowledging a liability, not for the principal, but for a certain annual charge. After having herself stamped this character upon the claim of the Pious Fund, Mexico can not now say that the claim is to the principal and not to an annuity, and a claim for the principal, if such existed, being barred by treaty stipulation, no claim for the annuity can exist. Mexico must continue the trust relation which she has herself assumed.

    “The difference now insisted upon is more than verbal; it is substantial, and is to be borne in mind when it is suggested to us, as it has been by the Mexican secretary of state, that we have lost our claim to the principal because such claim was not presented under the treaty of 1848; the fact being that at no time under the Mexican decrees could a claim for the principal have been entertained.

    “It should be borne in mind that we never have had or made any claim to the principal. From its origin it has been in the hands of trustees; first, the Jesuits; then the Spanish Crown; then the Government of Mexico; then in the bishop under the laws of 1836; then from February 8, 1842, again in the Mexican Republic All of these changes were accomplished by law—the act of the sovereign.” J. H. Ralston Agent United States.