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

[quatrième séance.]

17 septembre 1902 (après-midi).

A la reprise de la séance a 2½ heures M. McEnerney continue son discours jusqu’à 4½ heures.

Mr. Ralston. With the permission of Mr. McEnerney, and to prevent any misunderstanding, I simply want to announce that in view of the terms of the order passed by the court and read this morning, to which we have given careful consideration, that I shall follow Mr. McEnerney on Monday, with your permission, in the presentation of the case of the United States, and while I have not, unfortunately, had an opportunity to consult with Monsieur le Chevalier Descamps, I anticipate that he will close the opening arguments for the United States. In reply to the argument from Mexico, which will thereafter be presented, we shall have the pleasure of the assistance of Mr. Penfield, the solicitor of the Department of State.

Mr. McEnerney. Mr. President and honorable arbitrators: At the time the tribunal rose for midday intermission we had under discussion the period of the Pious Fund, which I have arbitrarily assumed to have begun with 1717 and to have continued for fifty-one years—that is, to the expulsion of the Jesuits under the royal decree of Charles III of Spain. We had pointed out that to 1731 the minor donations to this fund aggregated $120,000, and that in 1735 a donation was made estimated by the grantors between themselves to have been worth $408,000. The next donation to which I shall call your attention is that made by the Duchess of Gandia, which amounted, according to the historical authority which we have for it, to about $120,000.

You will realize that it was impossible upon the former arbitration to account, item by item and donation by donation, for this great benefaction extending over a period of one hundred years. When we came to make our claim we made it upon the condition of the fund as it existed in 1842. But it was necessary for us, in view of its magnitude, to trace the history of this fund, to show that its proportions, as we claimed them, were no exaggeration; and therefore we were entitled to refer, and we did refer, to the history of the early Californias to show that pious and wealthy people had contributed to it benefactions of great value and extent, approximating the proportions of the fund as we claim them to have existed in 1842.

I have already shown you benefactions amounting to half a million dollars—more than $520,000. The historical reference by which it is shown that the Duchess of Gandia contributed to this fund $120,000 is one of the extracts to be found in the original at the foot of page 198 of the transcript. It is taken from the “Story of California,” printed in Venice in 1789. I desire, with the permission of your honors, to read that extract from the translation on page 8 of the translation of extracts furnished to you this morning:

Two things were needed to advance the missions to the northward as the missionaries desired, namely the capital to found them and the locations to establish them in; and there was no hope of the one or the other until God moved the mind of an illustrious and most noble benefactress. This was the Duchess of Gandia, Doña Maria Borja, who having heard an old servant of hers, who had once been a soldier in California, speak of the sterility of that region, the poverty of the Indians there and the apostolic labors of the missionaries, thought that she could not do anything more pleasing to God than to devote her fortune to the aid of these missions. She therefore ordered in her will that there be provided, out of her ready money, those large annuities which she left her servants during their lives, and that all the rest of her estate should go to the missions of California, together with the capitals of the above-mentioned annuities, after the death of those who who enjoyed them; and that a mission, consecrated to the honor of her beloved ancestor, St. Francis Borgia, be founded in said peninsula. The sum of money acquired from this legacy by these missions amounted, in 1767, to sixty thousand dollars, and a like amount ought to be obtained after the death of the pensioned servants, over and above some very large debts which there was hope of recovering. With such a large capital, many missions could be founded in California, as in fact they would have been founded, if the Jesuits had not been obliged in the above-mentioned year to abandon that peninsula.

I now pass to what is known as the Arguelles benefaction, under which, from Señora Arguelles, who died before the expulsion of the Jesuits, the fund received what is estimated to be $600,000. This benefaction passed to the missions of the Californias under the following circumstances. Señora Arguelles bequeathed one-quarter of her estate to a college in Guadalajara owned by the Jesuits; three-quarters of her estate she devised in trust to the missions. The Jesuits renounced the benefaction and thereupon an officer, representing the State, and claiming that the benefaction should not lapse either as to the quarter or as to the three-quarters, intervened on behalf of the Government. The case continued in litigation for more than twenty-five years; and it was finally decided that the gift of the one-quarter lapsed, I presume upon the theory that the devise of the one-quarter was a gift to the Jesuits personal in character, given to their college as a private institution. But it was decided as to the other three-quarters, that it did not fail; because, presumably, it was a public charity, and it is the law the world over, that public charities do not fail for want of a trustee; the declination of the trustee to whom property is given or devised for charitable uses can not cause the trust to lapse, nor does he control its destinies nor defeat its execution. In the court of last resort in Spain it was decided as to the three-quarters of the estate, that one-half of it should go to the Philippine missions in accordance with Señora Aguellas’ will, and that the other half should go in accordance with an appointment which His Majesty the King of Spain should thereafter make. His majesty appointed that the benefaction should go to the Pious Fund of the Californias. This appointment was final and irrevocable; no attempt has ever been made to retract or alter it.

I wish the members of this court to keep in mind the fact just stated, that half of the Arguelles benefaction went to the Philippine missions. It is connected with an important event in the history of Spain and Mexico, upon which we rely as a precedent to establish the rights we are contending for before this tribunal. The Arguelles estate was thereafter distributed: $10,000 as a legacy to the children of Carro; one-fourth of the estate to the heirs at law, because as to the one-fourth subject to the $10,000 it was decided that the declination of the Jesuits defeated the gift; the other three-quarters in equal shares to the Philippine missions and to such other missions as the king should designate (the California missions being subsequently designated by him).

I invite the attention of the members of this tribunal, in connection with this Arguelles benefaction, to a report in the record at page 22, which has been called throughout the litigation “Manuel Payno’s report.” It commences on the middle of page 22 and continues to the top of page 36. Mr. Payno’s deposition follows, and then the certificate of the consul of the United States to Mexico at the top of page 37.

It appears by Mr. Pay no’s deposition that in 1862 he was commissioned by the Mexican Government to prepare a history of its financial condition. He says, at page 22:

Being commissioned by the Supreme Government to make a report upon and adjust the debt contracted in London, the diplomatic conventions—and some other financial affairs which should be arranged by the treaty about to be made between the Republic and the commissioners of the three allied powers—I have endeavored in the short space of time at my disposal scrupulously to examine the records and books of the public offices, with the object of treating every affair separately, by forming a concise historical extract of each, and giving at the end a statement of what the treasury owes up to date.

It is interesting to ascertain who the three powers were to which reference is made in Payno’s report, and this happily we are able to do by a reference to the second volume of Moore’s International Arbitrations, page 1289.

He says:

October 31st, 1861, France, Great Britain, and Spain entered into a convention with reference to combined operations against Mexico for the enforcement of claims.

Mr. Moore premises the account of this convention with a statement that there were complaints to various nations from their subjects having domicile in Mexico that their claims were not recognized and discharged by the Government of Mexico.

Returning now to the Payno report.

We know that Mr. Payno’s report was prepared by him with great care and in obvious hostility to the claims of the Philippine missions and that the report is an official publication of the Republic of Mexico, which she can not and never has disputed.

I invite your attention to an item of this Payno report on page 23. You will notice that it is a list of the sums, according to the journals of the general treasury, that were received into the treasury on account of the property bequeathed by Doña Josefa de P. Arguelles to the missionaries of the Philippine Islands;

which list is formed in virtue of the supreme order of the 1st of the present month of May, number 191, and in conformity with the agreement entered into between the supreme government and the agent of those missionaries; which was communicated to the general treasury on the 24th of December, 1845 (of this document we have asked discovery from Mexico); it being observed that the present list shall serve for no other purpose than as evidence to the Spanish legation; for which object it is remitted to the finance department in compliance with the said supreme order.

Now note:

As appears by the entry of the 2d of August, 1803, up to that date there had been delivered on account of the property of Doña Josefa de P. Arguelles the sum of $544,951.10, of which $10,000 corresponded to the children of Carro; and of the remainder, one-quarter part to the heirs and the residue in equal parts between the Californian and Philippine missions; consequently to these latter $200,606.54.

And so on, item for item, until the sum total was $306,901.62, not $316,901.62, for you will notice that on the 15th of May, 1804, $10,000 was assigned to the children of the Carro. Keep in mind that the estate went $10,000 to the children of the Carro; one-fourth to the natural heirs, one-half of three-quarters, or three-eighths, to the Pious Fund of the Californias, and the other three-eighths, one-half of three-quarters, to the Philippine missions.

That I may make this matter clear beyond all question I beg to invite the attention of your honors to an extract from one of the briefs of Mr. Doyle (which will be found at page 467 of the Transcript), where he gives the history of these Arguelles benefactions. If I may be permitted to read it, I think it will help to simplify the labors of your honors:

On May 29, 1765, Dona Josefa Paula de Arguelles, a wealthy lady of Guadalajara, executed her will, wherein she bequeathed $10,000 to a foundling hospital at Manila, one-fourth of the residue of her property to the Jesuit College of St. Thomas, Aquinas, in Guadalajara, and the other three-quarters to the missions in China and New Spain. She died about a year and a half thereafter, leaving an estate of about $800,000. The Jesuits, at that time pressed by a storm of obloquy in Spain and Portugal, renounced the legacy in their favor, and the heirs of the deceased lady brought an action to have her declared intestate as to all her estate, save the small legacy to the foundling hospital. The Crown intervened in the action, claiming the portion bequeathed for missions. And one Agustin de Mora in like manner put forward a claim for “Sustitucion vulgar,” with respect to the quarter bequeathed to the college, but on behalf of what institution or in what right I have been so far unable to discover. It will be remembered that at this time the missions both in New Spain and the Philippines were in the hands of the Jesuits, so that if their renunciation could affect the bequests in favor of the missions in their charge, the heirs had as clear a case as to the three-fourths bequeathed to the latter as they had for the quarter bequeathed to the college. The case, after going through the lower courts, came before the “audiencia real” of New Spain on appeal; which tribunal on June 4,1783, gave judgment denying Mora’s claim for the “sustitucion vulgar” as to the quarter bequeathed to the college, and declared the deceased, in consequence of the renunciation of the Jesuits, intestate as to that quarter. As to the other three-quarters, however, it decided that the missions took under the will, and declared that said three-quarters, therefore, vested in the Crown^a to be employed in the conversion of the infidels in this Kingdom and the Philippines (one-half in each), under the orders of the King, whom it especially concerns; and that a report be made to His Majesty to the end that he may be pleased to determine what may be his sovereign will with respect to the direction, consistency, and security of the funds so destined for the pious work of missions. This decree simply vested in the Crown a power of appointment as to what particular missions should be supported out of the bequest, subject to the sole condition that one-half should be destined to Asia and the other to America. The Crown exercised its power of appointment by ordering one-half of the three-quarters so devised to be aggregated to the Pious Fund of California, and the other half to the missionary fund of the Philippine Islands.

Then Mr. Doyle continues, but I shall not read further.

Mr. de Martens. May 1 ask a question? On page 467 (of the Transcript, line 14) there is no number of dollars given.

Mr. McEnerney. There is not, your honor, and I cannot tell you what it is. We shall be able to furnish you that from the original, but I cannot give it exactly now.

Mr. W. T. S. Doyle. It is $600,000.

Mr. McEnerney. It should be $600,000.

Mr. McEnerney (continuing). This will of Senora Arguelles was the subject of litigation until 1793, about twenty-five years after the expulsion of the Jesuits, when its benefaction was confirmed to and became a part of the Pious Fund. During the seventy years from 1697 to 1768 the Jesuits founded in Lower California thirteen missions, as you will see by reference to the testimony of Father Rubio, pages 148 to 150. You will find there stated the missions founded in Upper California and the missions founded in Lower California. Father Rubio was the vicar-general of the first bishop of the Californias, who was appointed, as I shall presently have occasion to show you, in 1840. The bishop died in 1846, and Father Rubio was vicar-general from 1846 until 1850, the year in which the second bishop—Bishop Alemany, who was one of the claimants before the former arbitral court—was consecrated.

I have now stated the chief events connected with the Pious Fund during the period which I have taken as covering the years 1717 to 1768. I now come to the period from the expulsion of the Jesuits to the time of Mexican independence, which is stated by Mr. Moore (second volume of Moore’s International Arbitration, 1209) to have been achieved in 1821, although the treaty with Spain recognizing it is of date December 28, 1836.

From the expulsion of the Jesuits in 1768 until Mexico achieved her independence the fund was administered by the Crown of Spain through officials appointed for that purpose. The trust character of the fund and its dedication to the establishment and maintenance of the Catholic religion in the Californias was always recognized.

In the royal decree of February 27, 1767, at page 410 of the Transcript, concerning the banishment of the regulars of the Society of Jesus and the taking possession of their temporalities, we find in paragraph 5, which occurs on page 411 of the Transcript, that it is declared by His Majesty:

I further declare that the taking possession of the temporalities belonging to the order embraces their property, real and personal, as well as the ecclesiastical revenues which legally belong to it within the kingdom, but without prejudices to such charges as may have been imposed upon them by their endowers.

This is an express recognition of the obligation assumed by the Crown when it took over trust properties.

And we have it upon the authority of Mr. Azpiroz, counsel for Mexico, in his argument before the former arbitral court, paragraph 33, page 375:

Upon the expulsion of the regulars, the King took possession of their temporalities within his dominions, and among these was included the Pious Fund of the Californias. Nevertheless, this was separately administered and its proceeds continued to be employed for the purposes for which they were instituted by the civil officers of the Crown.

In other words, when the King made his royal decree he said, “I take over these properties subject to these obligations.” And we have it upon the authority of the learned counsel for Mexico, now its minister plenipotentiary at Washington (who executed the protocol under which this tribunal is organized), that the King not only promised, in the decree whereby he expelled the Jesuits and took possession of their properties, to assume the obligations attached to those properties, but that he actually carried out this promise.

At the end of an official publication of New Spain, which is anexo No. 5 to the argument of Mr. Azpiroz, found between pages 416 to 425 of this record, your honors will find it stated (see top of page 425) that the “foregoing is taken from the 42d volume of the Section of History belonging to the general archives of the nation.” All that I desire to call to your attention in this report at the present time are paragraph 19, on page 420, and paragraph 38, on page 423. Paragraph 19, page 420, says:

Each missionary receives a stipend of $350 per annum, which is paid out of the gross of the Pious Fund acquired by the Jesuit fathers, and to which I will refer in its proper place.

And it is said, in paragraph 38, page 423:

They receive no contribution or duties, but each mission receives a stipend of $400 per annum, drawn from the Pious Fund left by the extinct regulars. One thousand dollars from the same fund is also furnished both to the Fernandinos and Dominicans, respectively, for the establishment of each new mission.

Sir Edward Fry. I do not quite understand what amount is to be received—what mission or missionary is to receive the three hundred and fifty dollars and what four hundred dollars.

Mr. McEnerney. Both paragraphs deal with the missions of California. One says that each missionary receives $350, and the other says each mission receives $400.

Official archives were kept by Spain and preserved by Mexico, containing an official history of the Pious Fund of California (see English translation, page 425 of the transcript and continuing to the foot of page 433). You will notice the extract is certified by Mr. Azpiroz, as chief clerk, presumably of the foreign office, before he became counsel for Mexico. Under date of Mexico, September 27, 1871, he says:

“The foregoing is a copy of the original found in a book called Fondo de Piadoso de California, belonging to the general archives.”

Here we have it clearly stated that in the archives of Mexico there was kept an official record devoted to the Pious Fund of the Californias. This name—The Pious Fund of the Californias, here mentioned in the certificate—is not only the common and ordinary designation of the fund, but, as will appear, document after document, official recognition after official recognition, make use of this designation as the official title of these properties. They were from a period shortly after the expulsion of the Jesuits down to 1842 known officially, by the action of the Crown in one instance and by the Government in the other, as the “Pious Fund of the Californias,” a name denoting first that they were devoted to pious uses, and, secondly, to pious uses in the Californias.

I was speaking of and had referred you to the official history of the Pious Fund of the Californias, and I desire to read to you two or three lines from paragraph 3 on page 425 (of the transcript):

The superior government, without loosing sight of the pious purpose to which they devoted, by order of the 12th of October, 1768, directed Fernando Mangino, the director of temporalities, to pay special attention to the examination of the property destined for the propagation of the faith in that peninsula.

From this same official history of the Pious Fund we find (page 426, paragraph 9) that an agreement was made March 21, 1772, between the board of war and the treasury department on the one hand and the Dominicans and Franciscans on the other, by which it was agreed that the Dominicans should have charge of the missionary work of Lower California and the Franciscans of the missionary work in Upper California.

In other words, we find four years after the Jesuits had been expelled, that is in 1772, that the religious orders of the church, by agreement with the Government and, of course, necessarily and presupposing the confirmation of their ecclesiastical superior, agreed upon a division of this missionary work—the Dominicans assuming the labors in Lower California and the Franciscans assuming them in Upper California. I ask your honors to dwell upon that fact because I shall hereafter undertake to enforce an argument upon one branch of this case predicated upon the fact that the Spanish Government did make that agreement and that from it there followed consequences shortly to be considered.

But even before that time—even before 1772—to wit, on the 8th of April, 1770, His Majesty the King of Spain, by royal order, had directed a division of the missions between the Dominicans and Franciscans. That will be found stated in the transcript, English translation, page 426, in the recital of the proceedings which occurred in 1772. But although that order had been made in 1770, the missionary work of the Franciscans commenced even earlier than that date; for we find that in 1769 they journeyed overland from Lower California to Upper California, and on their way thither founded the mission of San Fernando de Villacate in 1769, which was then the most northerly mission in Lower California. By the year 1823 (from 1769 to 1823, 54 years) they founded in Upper California 21 missions, making, with the mission which they founded in Lower California, 22 in all. The 21 missions which they founded in Upper California, with the date of the foundation of each, will be found in Father Rubio’s deposition, page 150 of the transcript. An examination of that list of missions will give you the beginnings of all the civil and the social history of California; for we find among these mission foundations that of San Francisco, now the chief metropolitan city of the Pacific coast, founded in 1776; we find the mission of San Rafael, a well-known town in California; of Santa Cruza, another well-known place; of Santa Barbara; of San Buenaventura, of San Luis Obispo, all well-known places; and finally of San Diego, also very well known, the most southerly mission of Upper California.

In the report of the treasury of Mexico, to which I invite your attention (the English translation of which will be found from pages 135 to 146) there will be found repeated acknowledgements of the trust character of these properties subsequent to the expulsion of the Jesuits. For instance, it appears therein that his majesty the King of Spain directed that “the administration of the said fund shall be kept with entire separation” (page 143, section 20). It also appears there that on October 1st, 1781 (I now ask your attention to section 22) the King ordered the sale of the properties. Listen to the conditions attached to the authority to make this sale: “Your excellency shall proceed immediately to the sale of those of the Pious Fund”—that is, the properties of the Pious Fund—“and that you shall secure the amount thereof in favor of the missions, giving due advice thereof through the department under my charge,” meaning under the charge of the viceroy, who communicated the order to the director of the temporalities by whom the sale was to be made.

It having, however, been brought to the attention of his majesty that such sale was contrary to the expressed wish and will of the Marquis de Villapuente, another later decree was issued on December 14, 1715, whereby, in view of these facts, his majesty (see paragraph 26) “has been pleased to order, that for the present the sale shall be suspended and the administration continued,” and whereby (paragraph 28), “His majesty . . . . bearing in mind the instructions of the Marquis de Villapuente, who gave his estates for that purpose, has been pleased to order that the surplus money shall be invested in safe landed property for the increase of the funds and that reports shall be made immediately, etc., etc.”

This brings us to the period from the independence of Mexico to November 2, 1840, the day of the transfer of these properties to the first bishop of the Californias.

Mr. de Martens. You were speaking about the different missions in San Francisco and other places. Have you some facts concerning the situation of these missions?

Mr. McEnerney. There are reports in the record. For instance, one of the publications to which I have referred you is a report on the condition of the missions. The proof on that subject is very meager, however. But there is a report showing how the missions are controlled, what their source of revenue is, whether there are contributions of the natives, and what the source of revenues of the missionaries are, etc. (Of course, there are reliable histories published in California which give an authentic history of the missions.) It appears by one of the paragraphs I read that they had no revenues except those derived from the Pious Fund. In other words, the natives had no means to assist the missionaries and they were dependent on the revenues derived from the Pious Fund.

Sir Edward Fry. Were there also payments by the Government?

Mr. McEnerney. There were payments ordered, but never made. There is not a single fact here to show that any payment was ever made for the missions as such—for the military service—yes—for the Presidio as distinct from the missions.

I have now come to the period commencing with the Mexican independence and running down to November 2, 1840.

At what date subsequent to the attainment of its independence Mexico actually took possession of these properties the record does not say. But we do know that it passed a law on May 25, 1832, for the leasing of these properties by a board of directors, created by that act, and called a “junta,” in which it was expressly stated that the moneys derived from the leasing of these properties should be paid into the mint or treasury for the account of the missions for which the funds were “solely and exclusively destined.”

There is not in the entire history of this fund, from the year in which Mexico achieved its independence down to the cession of Upper California to the United States on February 2, 1848, a single repudiation of the obligation under which Mexico labored with respect to this fund. Not one.

To illustrate this I quote from Mr. Azpiroz (paragraph 99, page 390):

Hence both the civil and canonical law clothed the endowment fund with the character of a trust, and acknowledged the same respect with regard to the intention of the founders or endowers as to those of the devisers. In fact no name better suits the class of pious funds to which the “fund” of the mission belongs, than that of trust, for the purpose of designating the legal effects of its creation. It is still more convenient for us to do so, for in doing so we agree with the claimants.

Sir Edward Fry. In 1772 the King, after-taking possession of this property, issued a direction (page 456) to all the representatives of the Jesuits, etc. Then he goes on to say that these purposes shall be “carried into effect by my said viceroys and governors in my name as part and parcel of my royal crown.” Is that consistent with his being a trustee?

Mr. McEnerney. I think that you must interpret the royal decree by the conduct of the Crown. It will appear by all of the documents which we cite that it was administered by him in his capacity as a trustee.

And again Mr. Azpiroz says (paragraph 92, page 388):

Still, as the owners of their property they could or not contribute it to the establishment of the missions, and in so doing they had the right to place conditions upon the administration and employment of their property. In fact they made use of this legal right and the Society of Jesus when it accepted their alms as their trustee, which it was, and upon the conditions prescribed, beyond doubt compromised its principal, the Government, to respect the intentions of the donors, to the same extent that they themselves were bound. This fact has always been recognized by the Spanish sovereign and his successor, the Mexican Government.

Indeed in the answer of Mexico to our memorial (Replication, page 20) it is said:

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.

It will be seen, therefore, that it is an admitted fact in this case that Mexico always held and administered the fund as a trust estate. She herself claims in the answer already mentioned that she had the rights of the Jesuits. This argument necessarily implies that she, Mexico, had all of the duties of the Jesuits in respect of the fund.

We shall hereafter consider what the duties of Mexico were with respect to the fund, but for our immediate purposes we emphasize the deliberate admission of Mexico that she held the Pious Fund as trustee. Among the evidences of her recognition of her duties as trustee is that contained in the legislative act of Mexico, dated May 25, 1832, providing that the rural properties belonging to the Pious Fund of the Californias should be leased.

This law is to be found on the first page of the pamphlet, Laws of Mexico Relating to the Pious Fund. It is provided in paragraph 6, on page 4, that—

The proceeds of such properties shall be deposited in the treasury of the Federal city, to be solely and exclusively destined for the missions of the Californias.

It is also provided in subdivision 9 of section 10 (on page 5, near the bottom) that this board shall—

name to the Government the amounts which may be remitted to each one of the Californias, in accordance with their respective expenses and available funds.

And there is no provision in this act for any distribution of these moneys or for the diversion of any part of the income except to the Californias, according to the state of their funds and according to the state of their necessities.

The title of this act is “Law. That the Government proceed with the lease of the rural property belonging to the Pious Fund of the Californias;” and in Article I it is provided that “The Government shall proceed to rent the rural property belonging to the Pious Fund of the Californias.” It is to be noted that I read those two clauses for the reason that in them Mexico declares that these properties belong to the Pious Fund of the Californias.

I have already called to your attention section 10, subdivision ninth, and have pointed out that there is no provision for the disbursement of those funds to any missions other than the missions of the Californias. But there are other legislative evidences that Mexico recognized her duty as trustee throughout the period under consideration. These need not, however, to be cited. It is sufficient for the present controversy that it is an undisputed proposition, made so by the answer of Mexico, that she never made any claim of title to this property except as a trustee thereof. I may stop for a moment, however, to speak of one or two of these laws. The law of September 19, 1836, concerning the erection of the bishopric in the two Californias, with which your honors are already familiar, is another recognition by Mexico of its duty with respect to the Pious Fund. In that act it is provided that the property belonging to the Pious Fund of the Californias shall be placed at the disposal of the new bishop and his successors, to be by them managed and employed for its objects, or other similar ones, always respecting the wishes of the donors of the fund.

By the enactment of that law and the subsequent surrender of the property to the Bishop of California, presently to be mentioned, Mexico simply discharged its clear duty as a trustee in possession. On April 27, 1840, His Holiness Gregory XVI, upon the petition of Mexico, erected Upper and Lower California into a diocese, and appointed as its first bishop Francis Garcia Diego, at that time, and for some time before, president of the Missions of the Californias. You will find that fact established at page 182, by the deposition of Archbishop Alemany, claimant before the former arbitral court.

Bishop Diego was consecrated October 4, 1840, as is stated at page 91 of this record. On November 2, 1840, the properties of the Pious Fund were surrendered to him by Mexico, in conformity to its duty as trustee, recognized by the legislative act of September 19, 1836—a fact shown by some of the correspondence of Pedro Ramirez, to be found at page 520 in English and 495 in Spanish. This brings us to November 2, 1840.

Within the period from November 2, 1840, to February 2, 1848—from November 2, 1840, until the cession of Upper California to the United States under the treaty of Guadalupe Hidalgo of February 2, 1848, made in consideration of $18,250,000—Mexico took no measures with respect to the properties of the Pious Fund except those to be now stated. The first one was the decree of February 8, 1842, by which it is provided:

• Article 1. The sixth article of the law of the 19th of September, 1836, by which the Government relinquished the management of the Pious Fund of the Californias, and the same was then placed at the disposal of the right reverend bishop of the new diocese, is hereby repealed.
• Article 2. The administration and employment of this property shall therefore again become the charge of the Supreme Government, in such way and manner as it shall direct, for the purpose of carrying out the intention of the donor, in the civilization and conversion of the savages.

This decree of February 8, 1842, is preceded by correspondence, to which I shall refer your honors and pass on. It is the correspondence called the Valencia-Ramirez correspondence. It covers two or three months in 1842. It opens on page 499 with a letter of January 26, 1842, wherein the minister of justice asked Mr. Ramirez, as the agent of Bishop Diego, to pay $2,000 due to the English consul for money laid out, which it was claimed by the Government of Mexico was lawfully chargeable against the Pious Fund.

The answer to this was made on the 28th of January, 1842 (page 500) by Mr. Ramirez. It is substantially to the effect that the condition of the fund was; such that he could not pay the $2,000; and he suggested that, as under the law of 1836 more than $8,000 was due to the bishop from Mexico on account of the $6,000 per annum which she agreed to pay for the support of the bishopric, it would be proper for the Mexican Government to pay the $2,000 out of that money. There followed a short letter from the minister of justice to Mr. Ramirez, on the 5th of February, and his reply thereto; and finally came the decree of February 8, 1842, to which I have referred you. The correspondence will be found from page 499 to the foot of 502.

On February. 21, 1842, as will be seen by a reference to page 505, Gen. Santa Anna, President of the Mexican Republic, having legislative power, appointed Gen. Gabriel Valencia, his chief of staff, “general administrator of said goods, upon the same terms and with the same powers as were conferred to the board (junta) of the same department (ramo) by the decree of the 25th of May, 1832.”

Next follows the decree of October 24, 1842. This decree of October 24, 1842, recites that the decree of February 8, 1842, “was intended to fulfil most faithfully the beneficent and national objects designed by the foundress without the slightest diminution of the properties destined to that end.” The act then provides that all of the properties belonging to the Pious Fund of the Californias are incorporated into the national treasury, and further provides that the revenue from tobacco “is specially pledged for the payment of the income corresponding to the capital of the said fund of the Californias.” It furthermore provides that the Department in charge of the revenues “will pay over the sums necessary to carry on the objects to which said fund is destined, without any deduction for costs, whether of administration or otherwise.”

You will note that this act provides that the department of tobacco will pay over these moneys to the objects for which the fund is destined. Note that a few months before this decree was passed Gen. Gabriel Valencia was appointed to manage the fund upon the terms upon which it was managed by the junta under the law of May 25, 1832; and note, furthermore, that it is recited in the law of May 25, 1832, that the funds are solely and exclusively destined for the missions of California.

It is evident, when the act of May 25th, 1832, the appointment of General Valencia February 21, 1842, and the decree of October 24, 1842, are read together, that there can be no doubt that the decree of October 24th, 1842, was intended to recognize the rights of the missions of the Californias, and was also intended to contain a recognition of the fact that the properties of the Pious Fund were solely and exclusively destined and designed for and dedicated to the use of the missions of the Californias.

I next come to the treasury order of April 23, 1844, which will be found on page 149 of the record, in the deposition of Father Rubio. The same order in Spanish is a footnote on page 88 of the record. Father Rubio, whom you will remember was first the secretary and then the vicar-general of the bishop, and also exercised the faculties of a bishop ad interim from 1846 to 1850, deposed that he saw in about the year 1845 this official notice in the diary of Mexico. That it is a genuine and authentic document was not disputed upon the former hearing, and the fact stated in it was equally unchallenged. It was an order made by the minister of the treasury of Mexico, from which it appears that the President of Mexico had given an order on the custom-house of Guaymas, payable to the representative of Bishop Diego. The language is this:

For the sum of $8,000, on account of the income belonging to the Pious Fund of California, the properties of which were incorporated into the national treasury.

This document, the genuineness and authenticity of which, I say, are not disputed—there being no evidence that the document did not exist or that the notice was not given—is proof that as late as April 23, 1844, the Mexican Government affirmatively recognized its obligation to the missions arising out of the facts already stated.

I come now to the act of April 3, 1845, also to be found in the pamphlet, which is a law passed by Mexico concerning the restitution of debts and properties of the Pious Fund of the Californias. By this act it is provided that the debts and other properties of the Pious Fund of the Californias which are now unsold shall be immediately returned to the right reverend bishop of California and his successor, “for the purposes mentioned in article 6 of the law of September 19, 1836, without prejudice to what Congress may resolve in regard to the property that has been alienated.” No property was ever returned pursuant to this statute. We quote it here only for its evidential value. From the foregoing facts as I have detailed them to you I deduce the proposition which I enunciated at the beginning: That from 1697 down to the cession of California to the United States by Mexico, under the treaty of Guadalupe Hidalgo, the Pious Fund of the Californias had a generally recognized existence and a continuous life.

The second proposition which I desire to advance is, “That at no time during the existence of this fund, beginning with 1697 and continuing to February 2, 1848, was the Pious Fund of the Californias considered to be other than a trust fund. Its character as such was continuously and repeatedly recognized by Spain and thereafter by Mexico.” Not only was it recognized as. a trust in the abstract, but during all the period of time from the expulsion of the Jesuits down to the cession of California to the United States by Mexico, it was recognized as a trust in favor of the missions of the Californias. This proposition was unavoidably but only partially dealt with in the discussion of my first proposition. It appears that during all the years from the expulsion of the Jesuits down to the cession of California to the United States, in all of the documents issued under the Crown of Spain and the Government of Mexico, this fund, consisting of the properties which I have described, bore the title which we claim designated both its purposes and the persons for whose benefit it existed. In other words, in all the documents of this period the fund is specifically called “The Pious Fund of the Californias.” It is true that the two decrees of February 8 and October 24, 1842, implied that on those days Mexico claimed the right to manage and possess (that is, take into her keeping) these properties; but there is nothing in either decree which involves a repudiation by her of the idea that the properties were to be devoted to carrying out the intention of the donors, namely, the conversion to the Catholic faith of the inhabitants of the territory known as the Californias, and after their conversion the continued maintenance and support of the Catholic religion in that country.

In addition to what we have already shown to be the facts, we again call to your attention that it is expressly conceded by Mexico in her answer to our memorial that the property was given in trust and that the trust character was never disavowed. We wish to emphasize the declaration made by her minister of foreign affairs in the answer which he has sent here for the consideration of the members of this tribunal. He says that the fund was a trust estate and that Mexico never denied its trust character. Let me read from the English translation of Mexico’s answer, to be found in the replication, pages 19 and 20:

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.

The claim by the Mexican Government that it succeeded to the Jesuits in this benefaction, with all the rights granted to the Jesuits by the founders, carries with it, as a consequence, that it also assumed all the correlative duties. If Mexico obtained, by reason of her subrogation, so to speak, all of the rights, she became burdened with all of the duties. The assumption of all of the rights necessarily carried with it and connoted the assumption of all of the duties.

I therefore pass the proposition that the Pious Fund was recognized as a trust estate by Spain and Mexico. We have Mexico’s deliberate admission that our claim in that regard is true. I come, then, to the point that the trust purpose of the Pious Fund of the California mission was the conversion of the natives of the two Californias, Upper and Lower, and the establishment, maintenance, and extension of the Catholic religion and worship in that country. It is conceded by Mexico that the trust purpose of the Pious Fund of the Californias was the conversion of the natives of the two Californias, Upper and Lower. This is stated in paragraph 4 of her answer, Replication, page 30:

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 principle and direct object of the missions entrusted to the Society of Jesus by the Catholic King, endorsed 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.

We do not concede, as is claimed by Mexico in the foregoing extract, that the Pious Fund had for its object the conversion of the pagan Indians to obedience to Spanish authority, nor that the fund was ever subsidized to the extent of a single dollar “by the public treasury of Mexico.”

These propositions heretofore and now advanced by Mexico were considered in the arguments upon the former arbitration and are referred to in other arguments for the United States already submitted to this tribunal, and need not now be dwelt upon.

It will be seen from the extract above quoted from the answer of Mexico, that it is therein stated that one of the objects of the Pious Fund was the conversion of the natives to the Catholic faith. Mexico says this proposition is unquestionable. Mexico likewise concedes that another purpose of the Pious Fund was the support of the church in California. She so concedes, although she also claims that this purpose was subordinate to the spiritual conquest of the uncivilized Indians. But Mexico does concede, and we have properly claimed, therefore, that one of the purposes of the donors of the Pious Fund was the support of the church in California; but even without this admission the proof upon this point is complete. The Pious Fund of the Californias was, as its name implies, a fund to be devoted to pious uses in the Californias, and to pious uses of the Roman Catholic type. But how can you devote properties to pious uses of a Roman Catholic type in California without devoting them to the support of the Roman Catholic Church and the extension of her religious work there? The object of all missionary work is first to establish religion, and having established it, next, to maintain it. To establish it and then to abandon it is to have wasted and misspent your means.

What the object of this fund in the Californias was in the beginning is clearly shown by the deed of the Marquis of Villapuente and the Marchioness of Torres de Rada, executed in 1735. As I have already called to your attention the contributions to the fund in 1731, four years before the Villapuente donation, amounted to $120,000. Of that sum the Marquis of Villapuente had contributed $40,000 himself, so that all of the contributions to this fund, of which we have any evidence, prior to the de Rada donation, amounted to about $80,000.

The contributions to the fund which followed the munificent endowment of the Marquis of Villapuente and Marchioness of Torres de Rada were necessarily given to objects in close affinity to those for which the Villapuente and de Rada donation was given. Let us examine the Villapuente and de Rada deed for the purpose of ascertaining what religious object was sought to be achieved thereby. I shall come afterwards, and under a separate head which I have designed for it, to the question as to what effect the clause of that deed mentioned by Sir Edward Fry during the course of the argument yesterday, has upon the case; but I desire now to examine the deed to ascertain for what religious objects in the Californias the Marquis of Villapuente and the Marchioness of Torres de Rada made this great donation. I called to your attention this morning that the deed is a deed in terms to the missions. I desire to read to you an extract, commencing with the word “and,” about the middle of page 104, in a line which contains the words “of all things visible and invisible.” What goes before is a mere religious preamble:

And whereas the reverend Society of Jesus, with its well-known religious zeal, has been heretofore employed and is steadily engaged in the conversion of the heathen natives of the Californias; and its members, by preaching and instruction, have drawn into the fold of our holy Catholic faith great numbers of those barbarous people, to whom they have devoted and are devoting themselves, according to their institute; sacrificing their lives and exposing themselves to contumely from the heathens, solely for the greater glory of our Lord God. And whereas, in the propagation of His holy faith (which at the sacrifice of so much labor they have established), and in order also that the many other tribes which are now at the doors of the church, as well as those remaining yet undiscovered, may not be deprived of the same advantages, they need human aid as a means of successfully prosecuting their labors; considering all which, and that we both are without forced heirs, who have the right to succeed to our inheritance, and are without hope of having such.

I next desire to quote two lines, the thirteenth and fourteenth lines, on page 105:

We give to the missions of the Society of Jesus founded, and which in after times the said society may found in said Californias, the above-mentioned estate.

Here follows a description of the estates granted until we reach the middle of page 106, where the description ends.

The habendum clause then commences.

It reads as follows:

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 custom 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.

In other words, the fund, except in a given contingency, which I shall consider under another head of my argnment, is granted first for the support of the missions which then existed, then for additional missions, and finally, in the case that all California became civilized and converted to the holy Catholic faith, the fund, or profits of said estate, for the necessities of all of the missions of the Californias and their support. So far as that clause of the deed is concerned, the fund was to be a perpetual endowment for the support of religion in that country.

Again, it is said at the first line on page 107: “We the said grantors “(continue reading on the fifth line of said page).

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.

Then two lines below:

And we give power and authority, so far as by right may be required, for said missions and said reverend Society of Jesus, that of their own right and authority, as they may be advised, they may take the seizin and possession of said estates

and the like.

I desire to call your attention to the clause commencing on the seventeenth line of page 108:

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, for we have entire confidence that it will comply with its duty and do what may be most pleasing to God. And Father, John Fraucis de Tompes, of said reverend Society of Jesus, the attorney in fact to that end, instructed and named by the most reverend Father Andrew Nieto, late provincial of said society, in and by the power of attorney given him in this city November 3, 1729, before John Alvarez de la Plata, royal notary, for all things concerning the missions of the Californias, being also present, declares: That by virtue of said power he accepts the donation in manner and form as above made, expressed, and declared, and from this time forth he acknowledges, in the name of said missions, to have received the said estates.

I therefore say that whether the Villapuente deed, considered technically, was a conveyance to the missions of the Californias founded and to be founded, or a conveyance to the Society of Jesus, or however it operated, considered as a technical conveyance, it certainly was a benefaction to the missions and had for its object the promulgation of the Roman Catholic religion in the Californias, and the maintenance and extension of that religion in the same country.

It is true that there is a clause in the deed, called to attention by Sir Edward Fry, by which the properties are authorised to be diverted in a given contingency. I shall consider this clause shortly; but we are now dwelling upon the deed to ascertain what the religious motive was which actuated the donors to make it. Laying aside for the moment its technical legal effect, we submit that it is very clear that it was the object of the grantors of that deed (and of all who, after them, contributed to the Pious Fund of the Californias) to establish a fund for the foundation and support of pious works of the Roman Catholic type in the Californias.

In passing I may say that it was claimed upon our behalf before the former arbitral court that, according to the law of Mexico, each bishop, parish priest, monastery, hospital, and religious foundation had legal personality, was, in law, a corporation, and had capacity to receive conveyances of real property. To this contention the very form of the Villapuente deed lends support. The habendum clause is “to have and to hold to the said missions.” It maybe in view of these facts that technically the conveyance was to the missions.

It is not important to our case, however, whether this be true or not. It is not to be expected that we shall be able to trace each piece of property into this great historical fund, comprising properties aggregated in the manner which I have attempted to detail, by the same clear chain of title, by which owners of real property trace the title to their estates. We made no attempt to trace titles in this manner before the former arbitral tribunal, nor do we undertake to do so before this tribunal. We proved to the satisfaction of the former tribunal the amount and value of the fund on October 24, 1842. Upon that proof, supplemented by some evidence since discovered, and over and above all upon the conclusive effect of the judgment of the former arbitral court, we submit this branch of our case to this tribunal.

We come now to the proposition that the Villapuente deed is the foundation deed of this fund. It is such in an historical sense only, not in a technical sense.

Let it be kept in mind that from the expulsion of the Jesuits down to the decree of October 24, 1842, all of the estates embraced in the Villapuente and de Rada deed were uninterruptedly devoted to the purposes to which the grantors in that deed designed them to be devoted; so that the main intent of the deed was adhered to.

One clause only had been abandoned.

There was no exercise by the Jesuits of the power given to them in the instrument and exercisable by them in a given contingency. Let me read the clause.

It is provided in the deed, Transcript, page 106, that:

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.

The clause authorizes properties previously dedicated to the missions of California to be diverted elsewhere, in a contingency which involved the continued existence of the reverend father provincial of the Society of Jesus “in this New Spain.” In other words, the compulsory retirement upon which that officer of the Society of Jesus “in this New Spain” was to exercise these functions, did not contemplate a retirement brought about by the entire suppression of the order and the consequent destruction of all its ecclesiastical functions. I say, then, that if you stop to dwell upon the single word “compulsion” it is true that the contingency did happen, for you may say that Jesuits did abandon the missions by compulsion, but they did not abandon them by the compulsion contemplated by the makers of this instrument, who assumed the abandonment of the missions and the existence of the society as a coexistent fact. From 1773, however, the reverend father provincial of “this New Spain” could not exist, because the order was banished from all the Spanish dominions, nor could he exist in any quarter of the globe, because the order itself had been suppressed.

The first point I make, therefore, with respect to the above-quoted clause is that the contingency mentioned in it never happened, either within the spirit or the letter of the deed. It is the function and office of all courts and tribunals charged with ascertaining the true meaning and intent of an instrument to attempt to place themselves in the position of the donors.

If we place ourselves in the position occupied by the grantors of the Villapuente deed at the time of its execution, we will surely see that they contemplated the abandonment of the missions by the Jesuits under such circumstances only as would involve the continued existence of the order in New Spain, and its continued existence as a religious order of the Roman Catholic Church. The circumstances, as they actually transpired, involved the banishment of the Society of Jesus from Spanish dominions by royal decree and the suppression of the order by Papal bull. It is evident, therefore, that the emergency, as it was contemplated, did not occur.

Before I pass to my second point, I call particular attention to the circumstance that under the deed the Jesuits were only authorized to divert funds which had been already dedicated to the missions of the Californias. The fund had already been given to the missions. The power conferred upon the Jesuits was to recall the gift. This is evident from the words of the deed: “To have and to hold to said missions.” I put particular stress upon these words for the reason that they show that the gift was already executed to the missions of California. Whether the transfer operated as a technical grant or conveyance is not important. Disregarding technicalities it is evident that the Villapuente and de Rada donation was made to the missions of the Californias, and was only to be defeated by the exercise of a privilege given to a particular Jesuit and exercisable only in a given contingency—a contingency which, I have already argued, never occurred within the letter or spirit of the instrument.

Let us assume, however, that the contingency did happen; assume that the circumstances were such as the Marquis of Villapuente contemplated; then the person at whose discretion the funds of the missions in California could be diverted to other fields was clearly designated to be the “reverend father provincial of the Society of Jesus in New Spain.” But such a person as the “reverend father provincial of New Spain” did not exist. He could not exist in Spain by reason of royal decree; he could not exist in any quarter of the world, because he and his order had been suppressed by papal bull, and his title, powers, and office had all ceased to exist. To sum up: The first point I have made is that the contingency never happened; secondly, if the contingency did happen, the power could not have been exercised because conditions had made the exercise of it impossible.

My third point is that if the contingency did happen, and if the power could have been exercised, the Jesuits have waived the right to exercise it by a long, unbroken, and unequivocal course of conduct. The very doctrine of prescription, which obtains in the civil and the common law, has been sustained in the jurisprudence of some nations by the fiction, which is allowed to prevail even contrary to the fact, of the existence of a lost deed. A man who has been in the unbroken possession of property for a long time is entitled in aid of his title to have it presumed that the last man to whom the title regularly descended had executed a grant to the one in possession.

My fourth point is that the power to divert the fund was personal to the Jesuits; that it was intended to be exercised by a specified religious and monastic officer; that it was intended to be exercised by a person who by reason of his religious office had obtained the confidence in an unusual degree of the Marquis of Villapuente. If there ever was in the eighteenth century a religious devotee, I venture to say that he was the Marquis of Villapuente. You will find in this record, commencing at the top of page 109, a biographical sketch of his career. You will there find that the dominant motive by which his life seemed to be actuated was a religious one. This likewise breathes in every line of his deed. When he conveyed these properties he relied on the honesty of the grantees and provided that the Jesuits should never be called on to account to any court or tribunal, ecclesiastical or lay, for the due administration of these trusts. He evinced beyond peradventure that his donation or grant to them, with a power to divert that estate, was personal in character, and when they, by reason of papal suppression, were unable to exercise it, the result was that the property already donated to the missions of California, or for the enjoyment of the missions of the Californias, could not, like the right which we have in the common law to reenter for breach of condition, be ever exercised. The gift made by the Villapuente deed did not, in the first instance, require the intervention of the Jesuits. It was a gift to the missions in the first instance, with the right in the missionaries to the exercise of a power, not for the aggrandizement of the Jesuits, not for their benefit and behalf at all, but it was a right to be exercised by them according to their discretion.

These considerations, I fear, involve too technical a point of view for such a case in such a tribunal. The history of this fund was made by three-quarters of a century’s treatment of it by two governments, and we rely on that treatment, culminating in the engagement in 1842. It is not necessary that our case, as we understand it, be dealt with in purely technical fashion. All of these considerations, however, lead us to see the case in its true light, and, seeing it, we are able to clearly understand what justice demands.

I have now dealt with four propositions in relation to the clause of the deed whereby the Jesuits were authorized to divert the fund to other missions. The fifth is that if the contingency happened, if the power did survive but could not be exercised by the Jesuits, and if it did devolve upon the Spanish crown, the power to appoint to other missions was never exercised. On the contrary, one of the earliest royal decrees recognized and confirmed the devotion of these properties to the Californias; and, as I have taken occasion to repeat three or four times, in all the official decrees and legislative acts of these two Governments from shortly following the expulsion of the Jesuits down to 1848, the official title of these properties was the “Pious Fund of the Californias.”

Mr. Asser. I very well understand your first, second, fourth, and fifth proposals concerning this point; but as to the third, I would be very glad to have some further information. What is your meaning concerning the third point?

Mr. McEnerney. I say that they waived the right.

Mr. Asser. By what means?

Mr. McEnerney. By a long, unbroken, and unequivocal refusal to claim. The Jesuits were restored in 1814 by Pius VII. They have been an order in the church since that time. They received of the former award, as proved by the deposition filed to-day, in response to a demand by Mexico, under an apportionment by the Holy See, to be devoted to the propagation of religion in the Californias—one-half of $40,000—that is, $20,000.

The Jesuits knew that they had this power of appointment. Their attorney received the deed from the grantors (Tr., 108). Since their restoration as a religious order in the church they have never put forward any claim to the Pious Fund. More than that: It is not necessary to prove that the Roman Catholic Church as it exists the world over is a papal church. The Holy See is the head and front of it. He is the legislative, the judicial, and the executive departments of the church. All the orders of the church are in subordination to him. These properties had passed to the control of other orders and of other officers of the church under permission, necessarily, of the Holy See. When the Pope appointed Francisco Garcia Diego first bishop of California, he did it in response to the solicitation of the Mexican Government. The Government then tendered the bishop the Pious Fund, which the Jesuits had formerly controlled. To this disposition of it the Jesuits are deemed to have consented, not only because they offered not one word of objection, but also because they were bound by the constitution of the church to which they belong to yield obedience to the head of that church, their ecclesiastical superior, the bishop of Rome.

(La seance est levée et le Tribunal s’ajourne à lundi le 22 septembre à 10 heures du matin.)

1. This decree passed after the expulsion—indeed, after the suppression of the Jesuits; hence the trust devolved of necessity on the Crown as parens patriae.