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

troisième séance.

17 septembre 1902 (matin).

L’audience est ouverte à 9 h. 45 sous la présidence de M. Matzen.

M. le Président. Je donne d’abord la parole à notre Secrétaire-Général pour lire quelques décisions que le Tribunal à prises a l’occasion des discussions qui ont eu lieu à la dernière séance.

M. le Secrétaire-Géneral. Voici la première décision, qui a été communiquée aux deux agents par écrit:

Le Tribunal: Attendu que l’agent de la partie défenderesse (Etats-Unis Mexicains) a consenti à ce que la réplique écrite de la partie demanderesse (Etats-Unis d’Amérique) soit jointe au dossier, sous la condition que la partie défenderesse ait le droit d’y répondre par écrit, a décidé que ladite réplique sera acceptée par le Tribunal et que la partie défenderesse aura le droit d’y répondre par écrit, pourvu que cette réponse soit déposée au greffe du Tribunal en manuscrit au plus tard le 25 de ce mois, et qu’au plus tard le même jour une copie en soit remise à la partie demanderesse.

Le Tribunal autorisé M. le Secrétaire-Général à notifier cette décision aux agents des deux parties.

Seconde décision:

Vu la nécessité de fixer l’ordre des plaidoyers et se conformant au réglement de la procédure arbitrale, consigné dans la Convention de la Haye de 1899 (art. 30 et suivants), le Tribunal a décidé ce qui suit:

1°. Attendu que ce sont les représentants des Etats-Unis d’Amérique qui ont ouvert les débats en leur qualité de partie demanderesse, la parole sera donnée aux représentants des Etats-Unis Mexicains comme partie défenderesse aussitôt que la partie demanderesse aura termine son plaidoyer. Ensuite les deux parties, si elles le désirent, alterneront encore une fois dans le même ordre.

2°. Les parties ont le droit de faire parler tous leurs conseils tant pour le premier plaidoyer que pour la réponse. Pour la réplique et la duplique chaque partie désignera un seul de ses conseils pour prendre la parole, sauf le droit des autres conseils d’intervenir pour répondre aux objections qui concerneraient spécialement les discours qu’ils ont prononcés.

M. le Président. Monsieur l’agent des Etats-Unis d’Amérique a la parole.

Mr. Ralston. I will ask the permission of this tribunal for an opportunity to examine more carefully the decision of the court just read, and to consider the exact order in which we will offer our counsel. I suppose I may have that opportunity, perhaps, at noon hour— this noon, between the morning and evening sessions.

The President. You will get a copy of the decision.

Mr. Ralston. Thank you. For the present upon that point I would simply say that Senator Stewart having opened the debate will conclude it—with your permission, will conclude his speech for the United States; and, if I understand correctly what has been read, and the disposition, I believe, of the court, it is the desire of this tribunal that in our case—all the points of our case that we consider necessary to be relied upon—should be fully presented, offered to the court, before the Mexican reply; and if I understand correctly, for the purpose of obtaining that end it will be proper for Senator Stewart to be followed by another of our counsel who will complete the opening of our case. That will be, with the permission of the court, Mr. McEnerney, who will follow Senator Stewart, and who, I hope, will be able to finish to-day what he may desire to present to the court, although I want to safeguard what I say by saying that perhaps part of his argument may go over until Monday. But that is not our desire. We desire to present, and hope to be able to present,’ our opening of the case fully at this session.

Now, having said this much, I promised the court at its last session that I would present for its consideration a translation into English of a number of pages in the record, the dossier, of the old case, which are there found in Spanish, French, Italian, and German, and the translation has been completed and printed, and I therefore take pleasure in handing to the secretary-general a number of copies for the court, individual members of the court, and for the files of the court, and also in delivering some copies to the agent of Mexico. Mr. President and honorable arbitrators, you will note, of course, on the face of the paper that it is a translation of extracts which are to be found on pages 187–221 in the large printed volume of the record you have before you.

Furthermore, Mr. President, about three weeks ago, scarcely that much, I received information from the Department that Mexico had made a demand upon the United States for a discovery as to what had become of the proceeds of the award which was made against Mexico more than 26 years ago in the case before you. While we do not admit, and in fact expressly deny, that information of that nature comes within the design of the Protocol of last May, because we do not think that it is in any degree pertinent to the present case, and that when the award was made it became a matter of absolute indifference to Mexico what was done by the Catholic bishops of California in distributing the money—while I say that is our position, nevertheless, subject to the reservations which I now make as to the materiality and the relevancy and the pertinency of the demand made by Mexico, I stand ready to answer the demand, as I at once telegraphed for the specific information desired by Mexico. This I indicated would be here shortly. I so indicated at the last session of the court, and in fact it was delivered to me Monday evening.

Mr. Asser. It was a written document?

Mr. Ralston. Yes, it was a written document, the contents of which I will very briefly explain.

Sir Edward Fry. It should be handed to the other side, so that they can use it.

Mr. Ralston. As the court will. We were required to produce it.

Sir Edward Fry. You produce it and leave it. They can use it if they see fit.

Mr. Ralston. Very well; and for the convenience of the court, if the court desires hereafter to examine it, we have prepared printed copies of the same, coupled with the affidavit of the archbishop of San Francisco to the truth of the facts.

Sir Edward Fry. This is not part of your case. It is part of the Mexican case. Under these circumstances you produce it and leave it to them to use it.

Mr. Ralston. So be it.

M. le Président. Est-ce que M. l’agent des Etats-Unis Mexicains a quelques observations à faire à présent?

M. Pardo. L’agent Mexicain a entendu la décision de la Cour; il s’y soumet naturellement. Il se réserve de répondre aux communications qui viennent d’être faites par l’agent des Etats-Unis une fois qu’il aura pris connaissance des documents qui viennent d’etre mis à sa disposition.

M. le Président. Le Tribunal décide maintenant d’entendre le represéntant de l’Amérique du Nord. M. le sénateur Stewart a la parole.

Mr. Stewart. Mr. President and honorable arbitrators: I will again call attention for a few moments to what is called the “foundation deed.” This deed so clearly declares the purposes and designs of the donors, and is so frequently referred to by both sides, that I will be indulged in reading a small portion of it. It was made in 1735, although there were many donations made previous to that time, which we have not in writing. This is taken by both sides as a sample of the donations, and indicating the purposes of the donors. The tribunal will pardon me for rereading the portion of the foundation deed presented to you last Monday. I read from the habendum:

To have and to hold, to said missions founded, and which he 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 dominion and 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 thereon, 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 other cause, title, or reason may belong, 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. (Transcript, p. 106.)

I am still of the opinion that the exception discussed on Monday emphasized the intention of the donors that the fund should be used in the Californias. That exception reads as follows:

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 apostatise 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 dominion and 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 thereon, 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. (Transcript, p. 106.)

It is not claimed that the Jesuits voluntarily abandoned the missions, nor that the natives rebelled or apostatized, nor that any other contingency arose whereby the proceeds of the Pious Fund might be used elsewhere than in the Californias. The expulsion of the Jesuits undoubtedly meant a condition of things which would make it impossible for them to continue their work of converting the natives in the Californias. It could not have had reference to the expulsion or removal of the Jesuits by the King and the substitution in their place of the Franciscan order, nor to the suppression of the Jesuits by the Pope. It was as well known then as now that the King had power to expatriate the Jesuits and that the Pope had power to suppress them, but in that case other orders of the church would take their place. The bishops, for example, in most all religious organizations have charge of the temporalities of the church, but they have no property rights in such temporalities, and when they are removed another church official is substituted. The temporalities of the church are then under the charge of the new official. It is very certain that the Pious Fund was not diverted from the Californias or used elsewhere by virtue of the exception under consideration.

The conveyance was made to the Missions. The language is:

To have and to hold, to said missions founded, and which hereafter may be 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.

The object of the exception under consideration manifestly was to maintain the existence of the fund, and if it could not be used in the Californias, the reverend father provincial of the Society of Jesus might order its use elsewhere; but the time never arrived when it was not used in the Californias, and the time never arrived when the reverend father provincial of the Society of Jesus ordered its use elsewhere. It must be remembered also that the Jesuit Order itself was under the control of the Catholic Church and could be removed from the Californias and another order substituted, as was done in this case.

Mr. Ralston. At this point will you allow an interruption?

Mr. Stewart. Certainly.

Mr. Ralston. If the tribunal please: After consultation with other counsel in the case, we will not insist upon the objection I had thought it my duty to call to the attention of the tribunal with reference to this exhibit, but we will offer it on our own account.

I may state in just a word the substance of its contents, as it has an important bearing upon the argument made by Senator Stewart, and upon the point to which he is now addressing himself. I have stated the purport of the demand by Mexico. I have here, to begin, the affidavit of the secretary of the Roman Catholic archbishop of San Francisco to the effect that he has in his possession and is the custodian of “all the books, records, files, papers, and documents of the Roman Catholic archbishop of San Francisco.” This is on page 3. And that the “annexed document is a full, true, correct, and verbatim copy of the pontificial decree directing the distribution of the monies of the Pious Fund, which said pontificial decree is among the files, papers, and documents of the said Roman Catholic archbishop of San Francisco.”

Then we have on page 4 the Latin copy of the pontifical decree, and on page 5 an English translation of the same, wherein it appears that by the decree “there having been deducted from the whole sum the expenses of the suit and the sum of $26,000 to be paid to the family of Aguirre (since it is plainly evident that such a sum is due to the aforesaid family), and payment having been made of $24,000 to the right reverend the archbishop of Oregon for the missions of the ecclesiastical province of that name and the vicariate apostolic of Idaho, and $40,000 to the fathers of the Order of St. Francis and the fathers of the Society of Jesus, to be equally divided between them; of the remaining sum there shall be taken seven equal parts, of which one shall remain perpetually assigned to the missions of the Territory of Utah and the remaining six shall be divided equally between the three above-named bishoprics of the ecclesiastical province of San Francisco.” The rest is not material upon that point. To this is added upon page first the affidavit of the archbishop himself, the material part for your consideration being particularly the last paragraph:

I am acquainted with all of the facts relative to the distribution of the proceeds of the judgment obtained in the case of Amat v. Mexico, referred to in said pontifical document, and am personally cognizant of the fact that distribution of all the said proceeds was made in strict conformity with the terms of said instrument; and myself supervised the distribution of seven out of fourteen of the installments thereof, having received the necessary receipts from all of the parties in interest.

I may very briefly explain to the tribunal that there were claims presented before the former commission on behalf of citizens of the United States against Mexico, and by citizens of Mexico against the United States, and when the proceedings of the court were terminated a balance was struck and it was found that a considerable excess became payable to citizens of the United States, and Mexico paid that excess in different instalments, the last payment being made in 1890.

Just one word before I close. It will be noted that the division was made among a number of States which were considered as forming part of what was anciently known as Upper California, on behalf of which we claim: First of all, all California shares in the division; next, Oregon, forming part of ancient California; next Idaho, which runs up to the British possessions on the north; and Utah, which is in itself a very large State.

Nevada then belonged to the California dioceses, and Washington, Idaho, and Montana were attached to the Oregon diocese.

So that we have this whole extensive country, many thousands, in fact several hundreds of thousands, of square miles in extent, with an extremely large population and many thousand Indians, perhaps fifty to one hundred thousand, who, shared in the benefits of the former award as against the narrow and barren strip of Lower California, which was adjudged by Sir Edward Thornton as entitled to one-half of the entire interest under the whole award.

Mr. Stewart. That evidence confirms to some extent my opinion of the clause “by compulsion.” It had reference to some circumstance other than the regular change which the church had the power to make in the society or church officialc which should take charge of the missions. It will be seen that there was $40,000 of this money given to the Jesuits. The Jesuit Order was not perpetually suppressed. It was revived in 1814. It is doing service in many parts of the world, and particularly in Upper California. The reception of a part of the Pious Fund recovered in the former arbitration after a century of silent acquiescence, removes any pretense that the order ever had even a desire that the Pious Fund should be used elsewhere than in the Californias. It appears then that the reverend father provincial not only did not order the fund to be used elsewhere, but the entire society remained silent on that subject for many years after the order was revived, and finally received and used a portion of the fund in the Californias. It will be seen by the following paragraph of the bull of the Pope suppressing the Order of Jesus that he intended to promote, and not to destroy, the work of establishing missions and converting the heathen in the Californias:

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 dissentions may be obtained and secured with greater facility and stability. (Transcript, p. 335, par. 32.)

Sir Edward Fry. Where is that bull to be found? The only note I have is page 461.

Mr. Stewart. It is in Spanish, and this is a translation, paragraph 32, page 335.

Sir Edward Fry. Where is it to be found; in what book?

Mr. Ralston. Transcript page 323, in Spanish.

Mr. Stewart. And we have it translated.

Sir Edward Fry. That is all right. I only wanted to get it.

Mr. Stewart. It is also translated in the answer of the representative of Mexico.

At all events, this part of the bull of the Pope shows that the intention was to secure peaceable administration of this fund and to make larger provisions if necessary.

VII. I now call attention to the foundation deed for the purpose of showing that the representative of Mexico was misled in his answer to the memorial of the United States by the omission from his extract, quoted from that document, of most essential parts. His extract is certainly most misleading.

The parts omitted and represented by stars are essential in determining the intention of the donors. In order that the materiality of the parts omitted may be judged, I quote in parallel columns a true extract from the foundation deed and the extract used by the representative of Mexico. The parts omitted by the representative of Mexico are printed in italics in the true copy:

true copy.

misquoted copy.

This donation, which we make good, pure, perfect, and irrevocable as a firm contract inter vivos from this day, henceforth and forever. To have and to hold, to said missions founded, and which hereafter may be 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 dominion and 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 thereon, 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, appertain to us; and we cede, renounce, and transfer the whole thereof to said reverend Society of Jesus, its missions of Californias, it sprelates 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. And we, the said grantors, both desire that at no time shall any judge, ecclesiastical or secular, undertake to investigate or intrude himself to ascertain whether the conditions of this donation be fulfilled; for our will is that in this matter there shall be no pretence for such intervention, and that whether the said reverend society fulfils or does not fulfil the trusts in favor of the missions herein contained it shall render an account to God our Lord alone. (Transcript, p. 106.)

This donation, we make to said missions founded, and which may hereafter be founded, in the Californias, as well as for the maintenance of their religious, and to provide for the support and conduct of divine worship, as 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 pretence for such intervention, and that whether the said reverend Society fulfils or does not fulfil the trusts in favor of the missions herein contained, it shall render account to God our Lord, alone. (Answer to Memorial in English, p. 4.)

In comparing the foregoing extracts the materiality of the parts omitted by the representative of Mexico will be readily observed.

VIII. The contention of the representative of Mexico that all the natives in Upper California have been converted, and that therefore there is no necessity for the use of the interest on the Pious Fund in that locality, rests on two mistakes:

1. There are many thousands of natives in Upper California who are still unconverted.

2. It was not the intention of the donors, as we have already seen, that the use of the proceeds of the Pious Fund should terminate upon the conversion of all the natives in the Californias. On the contrary, they intended that the use of such proceeds should be continued indefinitely for the benefit of Christian missions in that locality. For the purpose of calling particular attention to the provision in the foundation deed which makes the use of the Pious Fund in the Californias perpetual, we again quote one of the parts omitted in the extract from the foundation deed used by the representative of Mexico, which is as follows:

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. (Transcript, p. 106.)

The foregoing provision shows that the donors anticipated the argument of the representative of Mexico that there would be no further use for the Pious Fund in the Californias after all the natives were converted and gave a complete answer thereto. Such conversion is not yet accomplished. The necessities for the continuance of the work of conversion and the maintenance of the Catholic faith in the missions will remain indefinitely, and the donors made special provision therefor.

IX. The contention of the representative of Mexico that the United States, by the treaty of Guadalupe Hidalgo, proclaimed July 4, 1848, which, among other things, ceded a large territory, including Upper California, to the United States for the sum of $15,000,000, discharged Mexico from all demands on account of the Pious Fund can not be maintained. Article XIV of the treaty, quoted by the representative of Mexico as establishing a full defense to this proceeding, reads as follows:

The United States do furthermore discharge the Mexican Republic from all claims of citizens of 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. (Appendix to Record, p. 16.)

There are several conclusive reasons why the foregoing article does not discharge Mexico from the obligation she assumed to pay interest on that part of the Pious Fund dedicated to Upper California. The United States did not undertake to exonerate Mexico from her obligations to persons who were then Mexican citizens and who might thereafter become citizens of the United States on compliance with the provisions of the treaty. The undertaking of the United States, was confined to the then citizens of the United States. Neither the Roman Catholic Church nor its dignitaries or members of its fold, were citizens of the United States at the time ratifications of the treaty were exchanged. Whether they would ever become citizens of the United States depended upon an election or option to be exercised by them after such exchange of ratifications.

The Pious Fund by the action of Mexico, was a permanent investment upon which she agreed to pay interest annually. No claim for interest has been made by the United States in behalf of the bishops of California for any instalment of interest which became due and was payable previous to July 4, 1848, but interest arising after that date was submitted to arbitration under the convention of July 4, 1868, and decided in favor of the United States. The claim for interest in this proceeding has arisen subsequent to October 24, 1868. There is nothing in the treaty which can give the slightest pretext for the assertion that the United States either agreed to extinguish the obligations of Mexico to Mexican citizens or to pay the debts of Mexico to citizens of the United States which might become due after the execution of the treaty.

X. The recital of the representative of Mexico of various statutes of his Government confiscating church property, barring debts by limitation, and fixing times within which demands against the Mexican Government must be presented, has nothing to do with this proceeding. Whatever efforts Mexico may have made to close her own tribunals against the claim of the bishops of California by her local legislation do not concern us. It is sufficient for the purpose of this proceeding that both the United States and Mexico have agreed that the alleged obligation of Mexico to pay interest to the bishops shall be tried before this honorable tribunal.

Fortunately, Mexico does not now repudiate the various recitals in her statutes that her intention was to preserve, maintain, and apply the Pious Fund to the conversion and civilization of the natives of the Californias, and for the maintenance and support of the Catholic religion in that country, but on the contrary agrees that this honorable tribunal shall, in the event the matters are not res judicata, determine whether the beneficiaries of the Pious Fund have a just claim against Mexico, and “render such judgment as maybe meet and proper under all the circumstances of the case.”

This honorable conduct on the part of Mexico ought not to be disparaged by her own representative, or any one else, by an intimation that she is willing to oppose the rendering of a judgment which shall be just and equitable. Even if Mexico had confiscated the Pious Fund before California became a part of the United States, why has she not the right to waive any advantage such confiscation or any other arbitrary act might afford her, and submit the justice of the claim as it originally existed to arbitration? If the claim is just, no act of Mexico, however arbitrary or wrong, stands in the way of a judgment directing the payment thereof, because by her agreement to arbitrate she has swept away all defenses to the claim of the beneficiaries of the Pious Fund, except the plea that it is unjust.

Can there be any question of the justice of the claim? If there was no Pious Fund of the Californias, why did Mexico, by the law of May 25, 1832, provide for leasing the same? If the proceeds of such property when leased did not belong to the missions of the Californias, why did Mexico declare, in the sixth section of that law, that “the proceeds of such property shall be deposited in the treasury of the Federal City to be solely and exclusively destined for the missions of the Californias?” If the proceeds were not to be remitted to the Californias, why did Mexico, in section 10, subdivision 9, of that law, require the administrators of the fund “to name to the Government the amounts which maybe remitted to each one of the Californias, in accordance with their respective expenses and available funds?”

Again, why did Mexico on the 21th of October, 1842, in the preamble of the decree, directing the sale of the Pious Fund, say that the decree of February 8, 1842, “was intended to fulfill most faithfully the beneficent and national objects designed by the foundress without the slightest diminution, of the properties destined to end?” Why did Mexico pledge, by the third section of that act, the revenues arising from tobacco for the payment of interest on the Pious Fund, “without any deduction for costs, whether of administration or otherwise?” Why did Mexico, by the law of April 3, 1845, order all unsold property of the Pious Fund restored to the bishop if it was not the property of the missions and the Catholic Church of the Californias?

In short, why did every law or decree enacted or promulgated by Mexico recognize the existence of the Pious Fund and also that it belonged to the missions of the Californias and the Catholic Church in that region? Why was neither the existence of the Pious Fund nor the objects and purposes of its founders not questioned until after the beneficiaries of the fund become citizens of the United States? If the Pious Fund was not the property of the missions and the Catholic Church of the Californias, why did not Mexico claim it as her own? Why did she continually declare, in effect, that it was not her property, by asserting that it belonged to the missions and the Catholic Church of the Californias?

XI. Very different questions are submitted to this tribunal from those which the arbitration under the convention of 1868 was called upon to decide. Under that convention the arbitrators were not authorized to disregard any defense which would be allowed under the ordinary rules of procedure in courts of justice. Confiscation or any other arbitrary act, which would have been a bar in Mexico to the recovery of the Pious Fund while California was a part of that country, might have been urged as a defense under the general language of Article II of the protocol of 1868.

Article II of that protocol contains the following:

The commissioners shall then conjointly proceed to the investigation and decision of the claims which shall be presented to their notice, in such order and in such manner as they may conjointly think proper, but upon such evidence or information only as shall be furnished by or on behalf of their respective governments. They shall be bound to receive and peruse all written documents or statements which may be presented to them by or on behalf of their respective governments in support of or in answer to any claim, and to hear, if required, one person on each side in behalf of each government on each and every separate claim. (Appendix to Record, p. 31.)

Under such a submission any defense might have been interposed that would be good in ordinary proceedings at law. There was no revising of contracts, no reforming of instruments authorized.

But the issue submitted to this tribunal, in case the matters are not res judicata, is different. It submits the justice of the claim without regard to technical defenses. The protocol reads:

1. If said claim, as a consequence of the former decision, is within the governing principle of res judicata.

That is the first, question this tribunal is to consider.

If not, whether the same be just.

And to render such judgment or award as may be meet and proper under all the circumstances of the case. (Protocol, p. 3.)

This is the broadest possible pleading. No court can have more liberal rules to redress wrongs of whatever nature than are prescribed in the protocol in this case. This tribunal is directed in so many words “to render such judgment or award as may be meet and proper under all the circumstances of the case.” The question submitted is un trammeled by any rules of pleading or practice, and this tribunal is directed to the one issue: Is it just?

I am not familiar with the pleadings and rules of practice in any country where the English language does not prevail, but whatever rules may exist anywhere which would prevent this tribunal from deciding this case according to the principles of justice must be disregarded.

The courts of equity in England and America redress many wrongs which can not be adjudicated in courts of law. I will read, for an illustration, a passage or two from Bouvier’s Law Dictionary, Pawle’s Revision, Vol. I, page 684:

Third, where the courts of equity administer equitable relief for the infraction of legal rights, in cases in which the courts of law, recognizing the right, give a remedy according to their principles, modes, and forms, but the remedy is deemed by equity inadequate to the requirements of the case. This is sometimes called the concurrent jurisdiction. This class embraces fraud, mistake, accident, administration, legacies, contribution, and cases where justice and conscience require the cancellation, or reformation of instruments, or the rescission, or the specific performance of contracts.

The courts of law relieve against fraud, mistake, and accident, where a remedy can be had according to their modes and forms; but there are many cases in which the legal remedy is inadequate for the purposes of justice.

The modes of investigation and the peculiar remedies of the courts of equity are often of the greatest importance in this class of cases.

Sixth. Where, from a relation of trust and confidence, or from consanguinity, the parties do not stand on equal ground in their dealings with each other: As, the relations of parent and child, guardian and ward, attorney and client, principal and agent, executor or administrator, and legatees or distributees, trustee and cestui que trust.

If a court of equity could have full jurisdiction to investigate all matters culminating in the act of October 24, 1842, whereby the real property of the Pious Fund was sold and the entire fund covered into the Mexican treasury, a much larger judgment might be rendered against Mexico than the United States ever demanded.

This tribunal is not restrained from “rendering such judgment or award as may be meet and proper under all the circumstances of the case” by any matter not affecting the justice of the original claim. All honor is due to President Diaz for the liberal conditions of this arbitration. He has fully reciprocated the example of the United States in returning to Mexico the money awarded by the former arbitration to Weil and La Abra, which I will hereafter mention. His agreement that fall justice shall be done to the missions and the Catholic Church of California, waiving all excuses and objections not affecting the justice of the claim, is a full and cordial response to the action of the United States in protecting Mexico from dishonest demands.

XII. The complaint of the representative of Mexico, under various headings, that the United States are demanding of Mexico extravagant and inequitable claims, is unreasonable. The United States demand nothing from Mexico which the officers of the United States do not believe, after careful investigation, to be absolutely just. The good faith of the United States is illustrated by their treatment of the Weil and La Abra claims. Those claims were submitted to and decided by the arbitration under the convention of July 4, 1868, and the aggregate of the judgments in the two cases rendered against Mexico amounted to $1,130,506.55. Upon the suggestion by Mexico to the United States of a discovery of false evidence and perjury in obtaining such judgments, the United States, although Mexico had paid the money into their treasury, refused to pay the same to the claimants. Congress thereupon passed a law giving the courts of the United States jurisdiction to hear and determine both of those cases, and after a full and fair hearing such courts held that the claims were fraudulent; whereupon all the money deposited in the treasury for the payment of the Weil and La Abra claims was refunded to Mexico in gold coin. But the United States have continued to insist upon the solemn obligation of Mexico to pay to the bishops of California the interest on the Pious Fund dedicated for use in the Californias. The character and standing of the various Secretaries of State of the United States who have called the attention of Mexico to and reminded her of her obligation to make such payment, ought to be accepted as some proof of the good faith of that Government.

The following is a list of the officers of the United States who have conducted the negotiation with Mexico; which has terminated in the present proceeding:

Hon. William F. Wharton, Acting Secretary of State, August 3, 1891. (Transcript, Diplomatic Correspondence, p. 23.)

Hon. James G. Blaine, February 19, 1892. (Same, p. 24.)

Hon. John W. Foster, September 15, 1892. (Same, p. 24.)

Hon. Walter Q. Gresham, June 8, 1893. (Same, p. 24.)

Hon. John Sherman, October 30, 1897. (Same, p. 122.)

Hon. W. R. Day, Acting Secretary, July 17, 1897. (Same, p. 22.)

Hon. John Hay, December 4, 1899. (Same, p. 46.)

These men have world-wide reputations. They have figured in the great affairs which the United States have had with the balance of the world for many years.

XIII. I will now briefly consider the complaints of extravagant demands and bad faith made by Mexico against the United States.

The claim of the United States that the interest due to the bishops of California should be paid in the gold coin of Mexico and not in depreciated currency is made one cause of complaint. Mexico can hardly afford to insist upon paying the bishops of California in silver since she has recognized her duty to pay her other foreign obligations in gold. The interest on her bonded debt, which is dealt in by for eigners, is paid in gold. Her recognition of the money current in commercial nations has strengthened her credit and been of great benefit to her both at home and abroad. The payment to the bishops in silver would be grossly inequitable.

At the time Mexico sold the estates belonging to the Pious Fund and covered the entire property belonging to that fund into her treasury, and undertook to pay interest thereon, her silver coin was at a premium over the gold coin of any other country. In the second section of the act of October 24, 1842, we read:

The minister of the treasury will proceed to sell the real estate and other property belonging to the Pious Fund of the Californias for the capital represented by their annual product at six per cent per annum. (Laws of Mexico, p. 7.)

In the unsettled and revolutionary condition of Mexico the vast haciendas belonging to the Pious Fund could not possibly have produced a net income corresponding to their actual value. Mexico had just passed through a struggle for independence, and was in a revolutionary condition. It is certain that no hacienda in that country was producing at the time a net revenue equal to six per cent on the value of the property. It is even doubtful if two per cent was then realized upon any hacienda in the Republic. The property sold must have been worth at least three times what was received and covered into the treasury. The former members of the tobacco monopoly, to wit, Messrs. Don Francis de Paula Rubio and brother, Don Manuel Fernandez, Don Joaquin Maria Errazu, Don Felippe Neri de Barrio, Don Manuel Escandon, Don Benitto de Magua, and Muriel Brothers, made an offer of purchase within 24 hours from the passage of the law. These gentlemen knew the value of the property, and were ready to purchase as soon as, and perhaps before, the law was passed. Their prompt action indicates that they realized that the sale of the haciendas at the price fixed was an opportunity to make money.

For example, Mexico sold the Hacienda del Pastor capitalized at six per cent on $17,000 income per annum. The purchasers immediately thereafter rented this hacienda for more than $24,000 per annum, which would have made a difference in price of more than $100,000. (See Deed, Exhibit D to Replication on behalf of the United States.)

Since Mexico by that sale must have sacrificed a very large part of the property of the Pious Fund, it would be extremely inequitable to allow her to pay such an obligation in depreciated money. If Mexico keeps in circulation depreciated currency, it should not affect the claim of the bishops. She coins both gold and silver, and her gold coin corresponds in value to the money she covered into her treasury belonging to the Pious Fund, but her silver coin is at a discount, when compared with gold, of nearly 60 per cent.

While Mexico may require her citizens to receive any kind of money which by her law is current, it is grossly inequitable for her, in her capacity as trustee, to pay in a depreciated currency an obligation contracted by her when her money was gold or its equivalent. Notwithstanding Mexico, as we have already seen, forced the sale of the properties of the Pious Fund without the consent of the beneficiaries, she has failed to perform her undertaking as trustee in the payment of interest. The former award reduced the annual instalments of interest due the bishops to $43,080.99, which for 33 years amounts to $1,420,682.27, which sum must be accepted if the matter is res judicata.

Sir Edward Fry. The amount is $1,420,682.67?

Mr. Stewart. Yes. In that case simple interest at six per cent on each of such instalments from the time it became due, without including the principal, amounts to $2,858,652, which, according to the principles of equity, Mexico ought to pay in gold. It is not “meet and proper under all the circumstances of the case” to exonerate Mexico from the payment of interest and at the same time permit her to pay in depreciated currency. Article X of the protocol, submitting the kind of currency in which the judgment is to be paid, must be considered in connection with the power conferred upon this honorable tribunal to do justice between the parties.

XIV. There is another consideration which the representative of Mexico has entirely overlooked, and that is the liberality shown to Mexico in the judgment rendered by Sir Edward Thornton, the umpire, in allowing Upper California only one-half of the interest due on the Pious Fund belonging to the two Californias.

The King of Spain ordered his council, immediately upon the expulsion of the Jesuits, to make a division of the Californias in order that he might place the Franciscans in one part and the Dominicans in theother. You will see that here [indicating on the map] is the dividing line. The eastern boundary of the Californias must have been at that time somewhat indefinite. California was separated from Mexico by the Gulf of California, and then came the Colorado River. Bishop Alemany, in his testimony which is printed in the transcript, bounds this country by the Colorado, the upper branch of the Colorado River being called the Green River, terminating up here somewhere [indicating]. All this belongs to the watershed of the Pacific; consequently when the Pious Fund was distributed by the bishops parts were given to Utah, Idaho, Oregon, Nevada, and California. The King assumed the trusteeship of the fund and designated the Franciscans to take charge of the missions and use a part of the fund in Upper California and the Dominicans to do likewise in Lower California. The officers of all churches to a greater or less extent, whether they be priests, preachers, or bishops, have charge of the temporalities of the church and ofiiciate wherever directed by the governing power of the church. When the Jesuits were removed and suppressed the Franciscans were substituted by the authority of the King with the approval of the church to do the work of the missions, while the King himself acted as trustee for the property, the proceeds of which were transmitted to the missions.

Mr. de Martens. Can you fix the boundaries of the Californias as they were at the end of the 18th century? We can not quite fix the boundaries of California at this time from the geographical point of view.

Mr. Stewart. The State of California is bounded thus [indicating it on the map]. That is the State of California as it now is. I was there before California became a State with General Vallejo and other residents (Mexicans). They claimed then that it would follow up the Colorado River. They wanted more country taken in, but that was the division that was made by the United States. The eastern boundary at the time these donations were made in 1735 probably had not been traced. They followed up the Colorado River on the east and the Pacific coast on the west, which was all Spanish country, clear over to the Mississippi River. The western part of Spain’s vast dominion was called the Californias. There was no other name for it that we know of. The rivers and harbors along the coast had been explored, and upon that exploration the title of Spain rested. It might not have been exactly known at that time how far the Californias extended east, but it was the name of the western coast. Subsequently this has been treated by the church according to the boundary suggested by Bishop Alemany. He was undoubtedly correct, as he did not go east of the watershed flowing into the Pacific ocean. It was the great western coast, a vast region.

It is true that the work was commenced by the Jesuits in Lower California, because that locality was more easily reached from Mexico than the great body of the country contemplated by the donors. Comparatively little was accomplished in Lower California on account of the barren and desolate character of the country, which afforded sustenance for only a very few natives, and could not be made the home of any considerable population. Father Rubio, who gave evidence before the mixed commission in 1868, declared that he was sixty-eight years of age at that time; that he had resided at the mission of San Jose for thirty years, and at the mission of Santa Barbara nine years; that he had been most of that time a vicar general in the Catholic Church, and had been engaged in instructing and converting the natives. He testified that the number of missions in Upper California was twenty-one and in Lower California thirteen, giving the date of the establishment of each; that in Upper California in 1832, when he first went there to reside, there were 17,364 converted natives living at the several missions; that in Lower California there were scarcely any Indians in the missions; that in some of the missions there were none; that more than seven-tenths of the whole population of the Californias, subject to the missions, belonged to Upper California. (Transcript, p. 148.) The reason for the diminution of the population of Lower California was the want of water and fertile soil.

In 1857 Mexico appointed a commissioner, by the name of Ulises Urbano Lassépas, to examine into and report upon the resources and population of Lower California. The examination was very thorough and the report exhaustive. The country was found to be practically a rocky, barren waste, almost destitute of water, and the population to be very small and continually growing less. The report fully verifies the testimony of Vicar General Rubio. (See De La Colonization de la Baja California by Ulises Urbono Lassépas-Primer Memorial: 1859.)

I visited the missions of Upper California in 1850. At that time I conversed with many reliable persons familiar with Lower California, who described to me the country and the inhabitants thereof. Lower California was, I was told, destitute of water for irrigation and practically uninhabited. The missions of Upper California were in a more prosperous condition. They had immense herds of cattle, horses, and sheep, and cultivated fields sufficient to more than supply the inhabitants with vegetables and cereals. Their vineyards and orchards were especially important. They furnished grapes and fruit for a population of many thousands of miners.

If the work done and the natives converted in the two Californias, when I visited that country in 1850, were compared, it would be an exaggeration to assume that as much as one-tenth of the proceeds of the Pious Fund was required to be used in Lower California. Certainly the result produced by the expenditure was at least as much as ten to one in favor of Upper California. The statement of Vicar-General Rubio that in 1832 seven-tenths of the whole population of the Californias subject to the missions belonged to Upper California, was undoubtedly true. Notwithstanding these historical facts, the umpire in the former case, to make it as easy for Mexico as possible, gave only one-half of the interest on the Pious Fund to Upper California. If the matter were not res judicata, but were open to reexamination as to all the facts, the United States would confidently contend for 85 per cent of the interest instead of one-half, which would then be a more liberal allowance to Lower than to Upper California.

XV. The statement of the representative of Mexico that there is no legal basis on which to claim anything from the donation of properties made by the Marchioness de las Torres de Rada and the Marquis de Villapuente to the Pious Fund, is not sustained by the evidence. He has not pointed out how Mexico has lost one dollar by any alleged defective title of the estate of the Marquis, nor what claims the heirs of the Marquis have against Mexico in consequence of the sale of the property and the covering of the proceeds thereof into the treasury. On the contrary, the value of the estate which the umpire rejected and excluded from the fund was more than the amount demanded by the claimants under the Marquis in full satisfaction of their pretended judgment. (Transcript, p. 520.) In addition to that, the representative of Mexico has utterly failed to show by the evidence adduced that Mexico has not retained in her treasury the entire proceeds from the sale of the Ciénaga del Pastor, amounting to $213,750. The evidence of such disbursements, if it exists, is in the possession of Mexico, and that Government not having furnished such evidence it is fair to presume no disbursements have been made in consequence of the alleged attachment.

It must be presumed, in the absence of evidence to the contrary, which, if it existed, Mexico could and would produce, that the entire proceeds of the sales of the property of the Pious Fund were covered into the treasury and there remain. There is no evidence whatever in the record to warrant the exclusion of the $213,750 for which the Ciénega del Pastor was sold.

The amount of the fund, if the matter is not res judicata, as we have already seen, is $1,853,361.75, but the American commissioner, in the arbitration under the convention of 1868, leaving out sundry small items as bad debts or claims not sufficiently proved, and also the value of the Ciénaga del Pastor, reduced the total to $1,436,033. The umpire at first concurred in this amount, but afterwards deducted $1,000 on account of an error in calculation. He found the principal to be $1,435,033, and awarded one-half thereof, or $717,516.50, to Upper California.

On an accounting, if the matter is not res judicata, the claimants would contend that the Ciénaga del Pastor, valued at $213,750, with six per cent interest thereon since July 4, 1848, together with the other items mentioned in the memorial, should be added to the capital of the Pious Fund, and that the bishops are entitled to 85 per cent thereof, making an aggregate of at least $3,108,207.52 now due, as the following figures show:

Grand total.	$1,853,361.75
The interest on this at 6 per cent per annum is	111,201.70
85 per cent of the last-named sum is	94,521.44
33 instalments of $94,521.44 amount to	3,108,207.52
(Memorial, p. 11.)

The charge of exaggeration of amounts must be disregarded, because Mexico has the records to prove such exaggerations, if they exist, and no such proof has been furnished. In the former arbitration, Sir Edward Thornton, although he felt constrained to adopt the views of the Commissioner of the United States, who excluded from his finding a large portion of the claim, was manifestly dissatisfied because the Mexican Government did not exhibit in its defense the records in its possession showing the actual amount which was covered into the treasury. He said:

A larger sum is claimed on the part of the claimants, but even with regard to this larger sum the defense has not shown, except indirectly, that its amount was exaggerated.

There is no doubt that the Mexican Government must have in its possession all the accounts and documents relative to the sale of the real property belonging to the Pious Fund and the proceeds thereof; yet these have not been produced, and the only inference that can be drawn from silence upon this subject is that the amount of the proceeds actually received into the treasury was at least not less than it is claimed to be. (Transcript, p. 609.)

Notwithstanding the matter was called to the attention of Mexico by Sir Edward Thornton thirty-three years ago in the forcible language above quoted, the records and accounts referred to by him are still retained in the archives of Mexico, to which the claimants have no access. The nonproduction of the records, which ought to show the amount of the Pious Fund covered into the Mexican treasury, leaves no other inference than that “the amount of the proceeds actually received into the treasury was at least not less than it is claimed to be.”

The introduction of a book relating to legal proceedings which took place long ago, without proving that it affected the fund covered into the treasury, is indirect evidence that there is nothing in the Mexican archives showing that the amount claimed is excessive. The inventory of Ramirez, and the items particularly described in the memorial, can not be charged by the defense as excessive in the absence of proof to sustain such charge. The basis for everything claimed in the memorial must have been of record and must now be in the possession of the defense. No evidence having been produced by Mexico to contradict the claimant’s case, the presumption that the amount stated is correct will prevail.

XVI. I have gone into the details of this case, not because I doubt that the decision in the former arbitration is res judicata as to the amount of interest annually due to the bishops of California from the Mexican Government, but to answer charges of unfairness against the United States.

I thank you for your kind attention.

M. le Président. Maintenant, avant de donner la parole à un autre conseil des Etats-Unis d’Amérique, je dois l’avertir que le Tribunal sera ajourné à 11 h. ¾; peut-être alors le conseil préférera-t-il commencer son discours lundi matin à 10 heures. Le Tribunal siégera alors et continuera de siéger tous les jours; le matin et après le déjeûner; alors j’espère que les débats marcheront bien rapidement.

Mr. Ralston. I wish to speak a moment to Mr. McEnerney, whom we have contemplated would follow Senator Stewart, if you will permit me just a moment to explain to him what you have said.

M. Beernaert. Je demande la parole.

M. le Président. M. Beernaert a la parole.

M. Beernaert. Serait-il absolument impossible que le second conseil des Etats-Unis d’Amérique prît encore la parole cette après-midi, par exemple? S’il faut que la semaine prochaine nous répondions immédiatement à sa plaidoirie cela nous offrira de très grandes difficultés, parce qu’il ne nous est pas possible d’apprécier complètement la plaidoirie à une simple audition. Nous la faisons sténographier, il nous la faut faire traduire; par conséquent l’intervalle qui s’écoulerait entre la journée d’aujourd’hui et celle de lundi serait extremêment utile au point de vue de l’éclaircissement du débat.

M. le Président. Il nous faut continuer lundi matin.

M. Beernaert. Sans doute, Monsieur le Président; mais jedemandais si les convenances du Tribunal ne lui permettraient pas de nous donner encore une séance cette après-midi—cela avait été entendu je crois—ce qui nous permettrait d’avoir une connaissance complète de la plaidoirie de la partie demanderesse.

M. le Président. Ce n’est pas possible; des membres du Tribunal ne seront pas présents cette après-midi.

M. Beernaert. Je me permets de faire remarquer d’avance la situation dans laquelle nous nous trouverions en présence d’une plaidoirie à laquelle nous devrions répondre sans la connaître suffisamment.

M. le Président. Alors; nous nous retirons un moment pour délibérer.

(L’audience est suspendue pendant quelques instants).

M. le Président. La séance est reprise. Le Tribunal a décidé qu’il siégerait encore jusqu’à midi et qu’il y aurait une séance à 2½ h. Je donne la parole au conseil des Etats-Unis d’Amérique.

Mr. Ralston. I understand, Mr. President, that we will proceed now until 12 o’clock, and at half past two o’clock we will begin again, and for what time, how long will the sessions continue?

Mr. President. Until about five o’clock.

Mr. McEnerney. Mr. President and honorable arbitrators: The State of California became a State of the American Union on September 9, 1850. In anticipation of its admission to the American Union, the question was largely debated whether as a State it should adopt for the basis of its jurisprudence the civil law or the common law. By a small majority it was finally determined to adopt the common law as the basis of its jurisprudence.

Consequently, the lawyers educated for practice at the California bar deal almost exclusively with a jurisprudence which has its origin in the common law of England. I am one of the number, and I have accordingly been accustomed to the jurisprudence of the common law and have but a fragmentary acquaintance with the civil law. It will be necessary for me, therefore, to discuss this case largely from the outlook of one acquainted only with the common law of England. I console myself, however, with the recollection that a court has everywhere been defined to be a place where justice is judicially administered. The function of all courts, the function of all systems of jurisprudence, is the attainment of justice, and in the essentials which find their origin in the moral law all nations and all peoples think alike. So, if I shall be able to establish in this discussion any proposition which, according to the jurisprudence of the common law, is deemed consonant with and the result of the application of justice, I feel assured that the members of this court will find something closely analogous to it in the system of jurisprudence with which they themselves are perhaps more familiar.

If in the course of this argument I shall frequently refer to the system of jurisprudence to which I have been accustomed, it will not be on account of any belief on my part that it is a system superior to the continental system. My resort to it will arise out of the necessity of the case, which is, that being conversant with but the one system of jurisprudence, I can argue this case only in the light of its jurisprudence.

Our case, as appears from the title, is the case of the Pious Fund of the Californias. It is the subject which you are here called upon to consider. And naturally you are prompted of the outset of the inquiry to ask, What is the Pious Fund? When did it have its origin? Who created it? What is its history? When did it come to a close? What work did it accomplish? What were its objects? Were they changed or altered by the flood of time? Because Plato has said that “Time and time alone is the maker of states,” likewise is it true that time and time alone is the maker of all great historical institutions; and the Pious Fund of the Californias, far away on the Western Hemisphere, has been a great historical institution.

I shall therefore in the exposition of this case, and in consonance with what I conceive to be the logical order, first concern myself with what the Pious Fund was. The first proposition to which I shall address myself is that “the Pious Fund of the Californias has had an unbroken and generally recognized existence from 1697 down to the cession of Upper California to the United States by the treaty of Guadalupe Hidalgo, exchanged February 2, 1848.”

Upon the former arbitration, there was submitted to the tribunal, in support of the memorial of the archbishop and the bishop of California a brief history, so called, of the Pious Fund of the Californias, compiled by Mr. John T. Doyle, who has had charge of this case for now fifty years, and whose advanced age and infirmities make it impossible for him to appear before this tribunal to sustain the cause, which he has so successfully sustained in the past.

The brief history of the Pious Fund will be found in the transcript which you have, pages 17 to 22. Accompanying that brief history of the Pious Fund was a production by Mr. Doyle, which we know as “Extracts from various historical works bearing upon the Pious Fund.” These extracts, in the original French, Italian, Spanish, and German, but not translated, are found in the Transcript, pages 187 to 221. The United States have prepared and presented a translation of these extracts. The brief history and these extracts were submitted to the former arbitral court at the beginning of the litigation. In no essential was the correctness of either the history or the extracts disputed by Mexico; and we could safely rely upon that brief history for a full, fair, and unchallenged account of our case were it necessary for us to do so. The brief history was very largely confirmed by subsequent investigations made upon behalf of the archbishop and the bishop, the results of which were laid before the former tribunal. It was also confirmed in so many particulars by the argument of Sr. Don Manuel de Azpiroz, counsel for Mexico, and I shall have occasion in treating of this question to make frequent use of his argument for confirmation, extension, and elucidation of our theory of the case, a theory from which we have not deviated from the beginning. And it will be found that most of the facts which I shall have occasion to call to the attention of this honorable tribunal are to be found either expressed or implied in the brief history.

Having made this preliminary statement with respect to the sources from which the proofs will be forthcoming, I shall now recur to the first proposition, which I propose to sustain and which I have already stated to your honors.

It is that the Pious Fund of the Californias has had an unbroken and generally recognized existence from 1697 down to the cession of Upper California to the United States of America by Mexico by the treaty of Guadalupe Hidalgo, of date February 2, 1848. It has come to be an accepted fact that the Pious Fund of the Californias had its origin in 1697 in money collected from charitable people to enable certain Jesuit priests to commence their missionary effort in the Californias. Attached to the argument of Sr. de Azpiroz will be found the permission of the viceroy, dated February 6, 1697, whereby the missionaries were granted permission (quoting the language) “to penetrate into the provinces of California and convert the gentiles there residing upon the terms and conditions set forth in this instrument.” The document appears at page 401 in English, Anexo n°. 1.

In his argument, Sr. de Azpiroz stated, page 374 in English and 226 in Spanish, that the conquests of California were commenced by the Society of Jesus upon the charitable contributions collected by Fathers Salvatierra and Ugarte in the beginning of 1697, and were continued for some time without becoming a burden upon the royal treasury, which was one of the conditions contained in the permission authorizing the undertaking.

Sr. Aspiroz also mentions, at page 374 in English and 227 in Spanish, a number of contributions to the fund, made as early as 1703, which aggregated fifty-five thousand dollars. He also says at the page to which I have last referred you, “up to this time”—meaning the year 1716—“the means belonging to those already established”—that is, the missions—“had not been delivered to the Society. The founders retained it in their possession, and paid the annual interest, which reckoned for each of them from the date of their establishment.” And then, after recounting that one of the gentlemen who had made a contribution to the missions became bankrupt, the missions in consequence losing his donation, he goes on to say that “Father Salvatierra in 1717 requested and obtained permission to receive the capitals and invest them in real estate, which he did through Father Romano, the attorney of the missions. This permission was indispensable, because the Society of Jesus was not competent to acquire temporalities.” Accepting this statement as true, for we have no evidence or information which would enable us to either affirm or deny it, it will be seen that until 1716, the principal donations for the propagation and maintenance of the Catholic religion in California had a close analogy to what is known in English and American jurisprudence as a covenant to stand seized to the use of another. The donors agreed to hold the property for the benefit of the missions. They said: “We contribute ten thousand dollars; we pay you interest upon that sum;” the interest was computed at 5 per cent and amounted to five hundred dollars annually. In the early history of this fund it was supposed, and the idea prevailed in Mexico, that five hundred dollars was a sufficient sum for the maintenance of one mission for one year. Contributions for the purpose of founding missions were accordingly asked in the sum of ten thousand dollars each, each ten thousand dollars founding a separate mission.

I have now carried the history of the Pious Fund from 1697 to 1716, a period of twenty years. The period saw the origin of the fund, saw the first work of the missionaries, and saw the chief event with which I close the period, namely, the delivery of the capital, which theretofore had been held by the contributors, into the possession of the Jesuits for administration.

The next period with which I propse to deal covers fifty years, starting with 1717, when the Jesuits were permitted by law to assume the corporal possession of the property, and ending with 1768, the year in which they were expelled from Mexico by virtue of a royal decree passed in the preceding year. During that period the Jesuits had possession of the fund and administered it. A copy of the royal decree of February 27, 1767, of Charles III, banishing the Society of Jesus and taking possession of their temporalities will be found in the transcript at page 410. During these fifty years, from 1717 to 1768, the fund grew for that age to enormous proportions. We find it historically stated in a work devoted to the history of California that the minor contributions amounted in 1731 to one hundred and twenty-thousand dollars. In 1735 came the Villapuente benefaction, evidenced by a conveyance undoubtedly drawn by some one versed in the law of Mexico. By examining that deed, you will notice that the conveyance is to the missions. The language is “To have and to hold to the said missions.” Whether the object or function of that conveyance was to pass the title to the missions or to the Society of Jesus, my unfamiliarity with the Mexican system of jurisprudence will not allow me to say; but it is evident to demonstration that the benefaction was intended for the benefit and behoof of these missions, subject, if you please, to the exercise of a power which I shall have occasion hereafter to discuss. This benefaction given by the Marquis of Villapuente and his cousin or wife, the Marquesa de la Torres de Rada, conveyed to the missions properties of great area and value. The area was four hundred and fifty thousand acres, and the estimated value of the donation was four hundred and eight thousand dollars. The value as estimated at that date is derived from a recital in the deed, at the foot of page 104 of the transcript, which is to this effect:

And, whereas, the said Marquis of Villapuente, my cousin, is my only creditor, he having supplied me out of his own means with over two hundred and four thousand dollars, which he has furnished me, the receipt whereof is hereby acknowledged, and which is well known whereby our rights in the premises are just and equal.

In other words, the Marquis of Villapuente and the Marquesa de la Torres de Rada, undertaking to donate an estate to the missions owned by the Marchioness de Rada, but subject to a lien in favor of the Marquis de Villapuente, recited and engaged between themselves that her right in the property, after the debt was paid, was equal to the debt; consequently, according to the values which they put uppn the transaction, now one hundred and sixty-five years ago, his donation was two hundred and four thousand dollars, and her donation was two hundred and four thousand dollars. The deed is found in English in two places in the transcript, and it is in Spanish in two places. In English it is found at pages 104 and 452 and in Spanish at pages 99 and 309.

L’audience est levée à midi et renvoyée à 2 h. 1/2 de l’après-midi.