(See Mexican Pamphlets about the Pious Fund of the Californias, Nos. 24, 25, p. 12.)

The failure of Mexico to pay to the bishop of the Californias the interest due him from the revenue on tobacco was not because she did not know to whom the same ought to be paid, for we find in the Mexican archives an entry, ordering $8,000 from such revenue transmitted to the bishop of the Californias. The following is the entry:

Minister of the treasury sec. 2o 297. His excell. the President has been pleased to order me to inform your excell., as I now do, to give an order on the maritime custom-house of Guymas, which shall be payable to Sr. Juan Rodrigues de San Miguel, as the representative of the rt. rev. bishop of the Californias, 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; and let this be done with the greatest punctuality although it may be paid in partial payments. And let this order be obeyed with all exactness, notwithstanding my communication of yesterday to your excells. under No. 277 that the former order of Jan. 30 should be without effect. Contracted in order that the quantity mentioned in it might be paid by the aforesaid custom-house; and without injury to the assignment of the $500, monthly made upon the product of tobacco from the state of Zacatecas. (Transcript, p. 149.) Mexico also recognized the right of the bishop to receive the property of the Pious Fund by decreeing on April 3, 1845, that—

The credits and other properties of the Pious Fund of the Californias which are now unsold shall be immediately returned to the reverend bishop of that see and his successors, for the purposes mentioned in article 6 of the law of September 29, 1836, without prejudice to what Congress may resolve in regard to the property that has been alienated. (Laws of Mexico, pp. 7, 8.)

This decree would not have been made unless the bishop, as such, was entitled to receive the property referred to. The fact that no property was actually transferred does not affect the designation of the bishop as the proper official to receive any property that might be transferred.

I call attention to the treatment by Mexico of a fund contributed by the pious people of Spain for the establishment of missions in the Philippines, which is a precedent for the claim of the bishops of Cali

fornia.

In 1844, eight years after the independence of Mexico was acknowledged by Spain, a treaty was entered into for the settlement of a claim of the missions in the Philippines against Mexico. The property out of which the claim of the missions arose consisted of two haciendas, the Chica and the Grande, both situated in Mexico. By the latter convention Mexico agreed to pay, and did pay, $115,000 as principal and $30,000 in addition thereto as interest or rent. The money was paid to Father Moran, the representative of the Philippine missions. (Transcript, p. 25.)

The fact that Mexico recognized the bishop of the Californias as the proper officer to receive the proceeds of the Pious Fund proves that she did not agree to pay interest, intending at the same time to avoid such payment for want of a person to receive the same.

The United States appreciate the honor of Mexico too highly to suppose for a moment that she would promise to pay interest on the Pious Fund, knowing her promise was nugatory for the want of a payee, and we hope that no one will hereafter accuse Mexico of such insincerity. But suppose that Mexico intended to confiscate the fund which she covered into her treasury, and to deny that anyone had a right to receive the interest which she agreed to pay; she has now made ample amends for such unfair conduct. She has agreed that

this honorable tribunal, if it finds that the former judgment is not res judicata, shall determine "whether the claim be just," and "render such judgment or award as may be meet and proper under all the circumstances of the case." (Protocol, p. 3).

M. PARDO. Nous présenterons à la Cour avant l'ouverture de la prochaine audience la réponse du Gouvernement mexicain en espagnol, avec sa traduction en français et avec les documents cités à l'appui.

M. LE PRÉSIDENT. M. l'agent des Etats-Unis a été assez bon de dire tantôt qu'il mettrait à la disposition du Tribunal le Code Civil de Californie; je le prie, s'il le veut bien, de nous le fournir.

Mr. RALSTON. Je le demanderai par le télégraphe.

(L'audience est levée à 3 h. 45 et la suite des débats renvoyée au mercredi 17 Septembre, à 9 h. du matin.)

TROISIÈME SÉANCE.

17 septembre 1902 (matin).

L'audience est ouverte à 9 h. 45 sous la présidence de M. Matzen. M. LE PRESIDENT. Je donne d'abord la parole à notre SecrétaireGénéral pour lire quelques décisions que le Tribunal a prises à l'occasion des discussions qui ont eu lieu à la dernière séance.

M. LE SECRÉTAIRE-GÉNÉRAL. 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:

1o. 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 terminé son plaidoyer. Ensuite les deux parties, si elles le désirent, alterneront encore une fois dans le même ordre.

2o. 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 hourthis 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'être mis à sa disposition.

M. LE PRÉSIDENT. Le Tribunal décide maintenant d'entendre le représentant 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 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 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. 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:

The

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