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.)

CINQUIÈME SÉANCE.

Lundi 22 septembre 1902 (matin).

Le tribunal s'est réuni à 10 heures, tous les arbitres étant présents. M. LE PRÉSIDENT. Je donne la parole au secrétaire-général pour lire le protocole des séances précédentes.

M. LE SECRÉTAIRE-GÉNÉRAL (donne lecture du protocole des séances des 15 et 17 septembre 1902).

M. LE PRÉSIDENT. La parole est au conseil des Etats-Unis d'Amérique.

M. BEERNAERT. Je demande la parole pour une observation d'importance très secondaire, mais sur laquelle nous serons je pense d'accord. C'est que le dossier déposé par les Etats-Unis est en réalité un dossier commun, ainsi que cela avait été convenu à Washington; ce sont donc des pièces communes, réunies par l'une des parties, mais pour le compte des deux. Il semblait que quelques mots de ce que M. le Secrétaire-Général a lu tout-à-l'heure auraient pu comporter à cet égard quelques doutes, et c'est la raison de mon observation.

M. LE PRÉSIDENT. On prendra acte de cette déclaration. La parole est à M. Ralston.

Mr. RALSTON. I perhaps did not catch entirely all that Mr. Beernaert said.

The PRESIDENT (explains what Mr. Beernaert said).

Mr. RALSTON. Assuredly, assuredly.

M. LE PRÉSIDENT. La parole est au conseil des Etats-Unis.

Mr. McENERNEY. Mr. President and honorable arbitrators, in the considerations which I had the honor to submit for your consideration on Wednesday last, I had concluded the discussion of three propositions. 1. "The Pious Fund of the Californias" had an unbroken and generally recognized existence from 1697 down to the cession of Upper California to the United States of America by Mexico in the treaty of Guadalupe Hidalgo of February 2, 1848.

2. At no time during its existence, 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, first by Spain and thereafter by Mexico.

3. The trust purpose of "The Pious Fund of the Californias" was throughout its existence the conversion of the natives of the two Californias, Upper and Lower, and the establishment, maintenance, and extension of the Catholic Church, its religion and worship, in that country. This purpose Mexico consistently recognized.

In addition to having concluded the consideration of these three propositions, I was engaged when the tribunal rose for its adjournment on Wednesday last with a consideration of the connection and relation which the Society of Jesus bore to the fund from and after the expulsion and suppression of the society, a proposition which I have since that adjournment formulated and which I desire to express as follows:

4. The Society of Jesus has had no estate in the properties of the Pious Fund since 1773; nor has it had, since that time, any interest therein such as would in any manner interfere with the legal or moral right of the United States of America to demand from Mexico the award which is here sought.

I undertook, in the course of the considerations which I had the honor to submit to you, to establish in connection with this proposition the following:

(a) The contingency mentioned in the above-quoted clause of the Villapuente deed never occurred within either the letter or the spirit of that conveyance.

(b) The power granted to the "reverend father provincial of the Society of Jesus in this new Spain" to divert the income of the estates to missions in other parts of the world was ineffective from the banishment and suppression of the Jesuits (1767 and 1773), for want of the religious person designated to exercise the power. From 1773

H

there was no father provincial in New Spain, nor elsewhere, and no Jesuit nor Jesuit mission in all the world."

(c) The Society of Jesus renounced the right by failing ever to put forward a claim for its enjoyment.

(d) The power was religious in its nature and personal to the Jesuits. And I had reached and had under discussion at the moment the tribunal rose the fifth point, which is this:

(e) Even if the contingency contemplated by the deed did occur, and even if the power to divert was not personal to the Society of Jesus, but did survive to and devolve upon the Spanish Crown, then we answer that the power to divert these funds from the missions of the Californias to missions in other parts of the world was never exercised by Spain. On the contrary, the dedication of the properties as a fund for the maintenance of the missions in the Californias was repeatedly confirmed by Spain, and all power to divert them to other parts of the world was waived and abandoned. Indeed, the earliest royal decrees of Spain following the banishment of the Jesuits recognized and affirmed the dedication of the properties to the support of the missions of the Californias.

The very division of the missions between the Franciscans and Dominicans, to which, when I had occasion heretofore to refer to it I begged you to impress upon your attention, for the reason that I intended thereafter to make the point at which I have now arrived. That point is that the very division of the missions between the Franciscans and the Dominicans, with the consent and approval and by the direction of the Spanish Crown, and the entire treatment of the problem of the missions in Upper and Lower California by Spain, was based upon the idea that the Pious Fund belonged to the missions of the Californias. If this fund had not been treated by Spain as a fund for the support of the missions of the Californias, Upper and Lower, those missions of necessity would have had to be abandoned.

It would have been impossible without the dedication of these funds to the missions of California for the Franciscans or the Dominicans to have carried on that work. The very agreement of Spain for a division of the missions between the Franciscans and the Dominicans was, under these circumstances, a reaffirmation by that country of the dedication of these properties to the missions of the Californias. I pass to the sixth point, which is this:

(f) The Villapuente deed, in which this power is reserved to the Jesuits, constituted only a portion of the Pious Fund, and by the course of history and with the concurrence and by the direction of two Governments, Spain and Mexico, the Villapuente and De Rada properties were merged in the other properties of the fund, and for three-quarters of a century (from 1768 to 1842) all of these properties were treated as constituting "The Pious Fund of the Californias," a fund devoted, as its name implies, to pious uses, to be achieved in the Californias.

I pass now to the seventh point, which I had occasion in a faint way to foreshadow to the tribunal on Wednesday last. It is this:

(g) The court will remember that the religious orders of the Roman Catholic Church are not purely self-existent bodies. They are each of them attached to the See of Rome in a particular manner, and that See is for each of them the ultimate superior. The acts of the Holy See in respect of the functions of any particular order have not only

the general authority recognized in the See of Rome by all Catholics, but they have also a particular authority, and may, for the considerations which I shall hereafter advance to you, be regarded as the acts of the order itself.

The whole history of the religious orders, including that of the Society of Jesus, will show no exception to the rule that they all regard this particular authority of the Holy See, and submissive concurrence in its commands, as a necessary condition of their very existence. And we need not stop to dwell upon that longer than a moment, because as they exist by virtue of permission issued from the Holy See, concurrent submission to its authority is a condition, a fundamental condition, to the existence of religious orders within the pale of the Roman Catholic Church. It conclusively follows from this universally admitted principle that whatever the Holy See directs or permits in the case of a religious order may be presumed to be an act of that order itself; nor could a better example of this principle be adduced than the submission of the Jesuits themselves to the papal bull of 1773 by which that order was suppressed.

Coming now to apply those principles stated in the abstract to our case in the concrete, we say that the Franciscans and Dominicans Icould not have taken over the administration of the missions of the Californias without the consent of the Holy See-a consent to which the Jesuits (not yet suppressed when the missions were taken over) must be deemed, from the principle enunciated above, to have been a party. The Holy See permitted the Franciscans and Dominicans to take over the missions of the Californias. What the Holy See permitted to be done from the very fundamental notion of the attachment of the religious orders to the Holy See, that act of the Holy See must carry with it the concurrence of the Jesuits.

The same idea is true of every subsequent act authorized or permitted by the Holy See in connection with the administration of the missions and the application of the Pious Fund of the Californias to their use. It will also be evident that as the archbishop and the bishop of California were permitted to present the claim which they made before the former arbitral court the validity of that claim was implicitly conceded and agreed to by the Society of Jesus. Another evidence of this concurrence is the acceptance by the Society of Jesus of the sum of $20,000 under the apportionment by the Holy See on March 4, 1877, of the recovery in the former arbitral court.

The present claim, the one before this tribunal, made by the United States of America on behalf of the archbishop and the bishop of California (these latter necessarily acting with the leave of the Holy See), will be conclusively presumed to have been made with the active and passive concurrence of the Society of Jesus. And it will be furthermore presumed as a part of this suggestion that any act of that society necessary to perfect the claim here urged has been duly had and taken in due season by said society.

In other words, it will be presumed under the circumstances that if any act could be done by the Jesuits to make effectual the claim that act has been duly performed in due season by that society. This is no novel principle of jurisprudence to put forward in a judicial tribunal, because it bears a close analogy to the presumption of a modern lost grant indulged in the law of England in support of a title by occupancy.