las Torres de Rada formed the greater part of the amount demanded, and that there was nevertheless no legal basis on which to claim it). The claimants are astonished by this assertion, but not quite in the manner anticipated by Mexico. The facts contained in the volume of ancient records (Pleito de Rada) produced by Mexico were substantially all familiar to the claimants in the suit of Alemany v. Mexico, as will appear by reference to pages 518-521 of the Transcript. Therein will be found a history prepared by Pedro Ramirez, the agent of the bishop of California, substantially complete in all respects, and in general agreement with the volume Mexico now produces. For the purpose of the further enlightenment of the present tribunal we have added in the form of an appendix to this replication an abstract of the contents of the volume in question, together with a copy of the decree contained at its close, translated into English, the summary so added being supplemented as to some of its details by reference to the review of the litigation written by Ramirez and before referred to. At the present time we shall direct the attention of the court to but one or two facts. The decree closing the volume in question was not a final decree settling the title of the property, as might fairly be implied from the Mexican answer. To the contrary, while determining the title to certain offices it remanded the cause to the lower court to settle the question of the rights in the other property of the Marchioness and her successors, together with the other litigants, "in order that they may make use of it as they see fit, according to the respective rights deduced in that audiencia where they shall execute it." It thus appears that the record Mexico has now supplied to the court is incomplete and imperfect, and reference must be made to the statements of Ramirez for information as to the further course of the litigation. It is, however, apparent, taking the record and the statements of Ramirez in conjunction, that no order was ever passed declaring the Marchioness and her successors to be without interest in the lands claimed by them, but that there was finally granted simply a money judgment. No attempt seems ever to have been made to disturb the title of the Pious Fund to the Rada property, and the last step taken in the litigation was the levying of an attachment, not against the Rada and Villapuente property, but against the Ciénaga del Pastor and the house on Vergara street (Transcript, p. 520), both of which came to the Pious Fund from the property left by Madame de Arguelles. It thus remains incorrect to say, in effect, as has been averred in the answer, that the Pious Fund had no legal basis on which to claim the properties that belonged to the Marchioness de las Torres de Rada, and this particularly in view of the fact that the fund was never disturbed in its possession thereof until it was sold by Mexico. As to the money judgment in favor of the heirs of de Rada above referred to, it could have been settled prior to the reassumption of control by Mexico for the sum of $210,000 (Transcript, p. 521). Mexico thereafter sold this particular property, despite the attachment, for a price which yielded for the interest of the Pious Fund $213,750 (see copy Escritura de Venta, Exhibit D, hereto attached), and so far as the record discloses, no part of this money was ever paid out in settlement of any supposed claim against the fund, but Mexico received the exclusive benefit thereof, and failing to disclose this fact there was excluded from the calculations of the former commission (Transcript, opinion of Commissioner Wadsworth, p. 526, followed by Umpire, p. 609) the sum of about $200,000. Had all the facts with relation to the transaction been disclosed by Mexico to the mixed commission, there seems no doubt that a much larger award would then have been rendered against Mexico, but with the additional facts now before this court, in the event of the reopening of the former decision, the United States will insist strenuously upon the calculation of annuity in favor of the Pious Fund upon the additional amount of $213,750, as derived from the sale of Ciénaga del Pastor (the property so excluded) since 1848. On behalf of the United States, I respectfully submit that the allegations and prayers of the memorial have not been met by the answer of Mexico. JACKSON H. RALSTON, Agent of the United States and of Counsel. EXHIBIT A. [Translation from the Spanish. See p. 30.] Answer to the memorial upon the claim presented by the United States of America against Mexico in regard to the so-called “Pious Fund of the Californias." Reserving the privilege to produce on the part of the Mexican Republic, in exercise of the right which belongs to it under the protocol concluded in Washington the 22d of May last, for the arbitration of this claim, proofs of the contentions which are hereafter set forth and of others that may be appropriate, such as defenses and proper allegations, the undersigned, the authorized representative of the Government of Mexico, asks that the Permanent Court of Arbitration of The Hague set aside the claim for the following reasons: First. Lack of title of the Archbishop of San Francisco and of the bishop of Monterey to present themselves as legal trustees of the Pious Fund of the Californias. Second. Want of right of the Catholic Church of Upper California to demand interests originating in the supposed fund. Third. Insufficiency or extinction of title on which the archbishop and bishop, above mentioned, base their claim. Fourth. Nonexistence of the object attributed to the institution of the fund, so far as regards Upper California. Fifth. The exclusive right of the Mexican Government to employ the fund and dispose of the proceeds, without the intervention of the church of Upper California. Sixth. The use which the Government made of said right; and I. The claimants agree with the Government of Mexico in admitting the following facts, proved by irrefutable documents: First. The Jesuits were the original trustees or administrators of the properties which constituted the Pious Fund of the Californias up to the year 1768, when they were expelled from Spanish dominions. Second. The Spanish Crown, in place of the Jesuits, took possession of the properties which constituted the aforesaid Pious Fund, and administered them by means of a Royal Commission until the independence of Mexico was achieved. Third. The Mexican Government which succeeded the Spanish Government was, as the latter had been, trustee (comisario) of the fund, and in this conception successor of the Jesuit Missionaries, with all the rights granted to them by the founders. In order that the archbishop and bishop, the claimants, may be considered trustees (comisarios) by succession, as they contend, they would have to prove their actual position as successors in interest of the Mexican Government, to perpetual, general, or particular title. In no other way could the attitude in which they present themselves as creditors against their alleged debtor be explained. In fact, they claim as title of succession that the direct representation of the government, and the indirect of the Jesuits, was granted to them by the decree of the Mexican Congress, issued on the 19th of September, 1836, which authorized the placing at the disposition of the Bishop of the Californias and his successors the properties belonging to the Pious Fund of the Californias, to be administered and invested in their enterprises, or other analogous ones, respecting always the wish of the founders. But the same claimants acknowledge that the aforesaid decree was repealed on the 8th of February, 1842, by General Santa Ana, provisional president of the Republic, invested with extraordinary powers, which devolve upon the Mexican Government the administration and employment of the proceeds of the properties in the way and manner which it should determine, in carrying out the objects proposed by the founders-the civilization and conversion of the heathen. Later, on the 24th of October of the same year, the properties were directed to be sold and the proceeds to be incorporated into the National Treasury to constitute a secured annuity (censo consignativo) at the rate of 6 per cent per annum, to be used for the purpose of the original foundation. No later law granted to the bishops of the Californias the right to receive and apply to their enterprises the interests of the aforesaid annuity. It is true that the Mexican Government issued another decree, on the 3d of April, 1845, directing that all the properties of the Pious Fund of the Californias, remaining unsold, should be returned to the bishop of the Californias, and to his successors, for the ends set forth in article 6 of the law of September 19, 1836, without prejudice (it was said) to what Congress shall afterwards determine concerning the properties already disposed of." Although the tenor of this decree gave an excuse to the umpire under the mixed commission of 1875 to declare that the obligation of remitting to the bishop the proceeds of the fund was recognized in it, it has not seemed advisable to the claimants' attorneys to allege it in support of their present claims, certainly because that decree refers to unsold properties, whose value clearly had not been incorporated into the National Treasury, and not to the revenues or interests upon the proceeds of the properties sold, touching which Congress had expressly reserved the right to decide. This right was never exercised, and therefore the last decree has not bettered the situation in which the bishop of the Californias was placed by the decree of the 8th of February, 1842, which deprived him of the charge of using for the missions the revenues from the annual 6 per cent upon the proceeds of the properties sold, which revenues are the only subject-matter of the present claim. II The Catholic Church of Upper California never could, of its own right, administer the Pious Fund of the Californias, nor demand its proceeds, for the simple reason that they were not granted it by the founders, nor by the Jesuits, who were the original trustees (comisarios), nor by the Spanish Government that succeeded them, nor by the Mexican Government that succeeded the Spanish, and which, like that Government and the Jesuits, acquired the right of using the properties of the fund in question for the missions of the Californias, or for any others within its dominions, at its free will and discretion alone. Such discretionary power will not permit coercion, which is an attribute of perfect right. Therefore, although for the sake of the argument, the representation of the Jesuit missions (expressly suppressed by Pope Clement XIV since the year 1773) might be conceded to the Catholic Church of Upper California, that church would have no right to demand the interests of the Pious Fund. The decree of the 19th of September, 1836, above cited, on which the claimants pretend to base their rights, only conferred on the first bishop of the Californias and upon his successors the administration of the fund, during the will of the Government, with the obligation of employing the income for the ends indicated by the founders or for other like objects; but did not give either to them or to the church they represented an irrevocable right; and, moreover, it (this decree) was repealed by that of the 8th of February, 1842, which withdrew from the bishops of the Californias the administration of the fund and devolved it upon the Government. III. No existing law being able to establish any title to this claim, the claimants wish to supply it with the so-called foundation deed of the pious work, or with the decision rendered by the Mixed Claims Commission, established at Washington under the convention between Mexico and the United States, signed on the 4th of July, 1868, which decision was given on the 11th of October, 1875, claiming it to cause res judicata. A. As to the first, it will suffice to show that it does not favor the pretentions of the claimants, to quote the following clauses from the instrument which they take as an example of the donations that were made to the fund: a This donation * * * we make * * * to said missions founded, and which may hereafter be founded, in the Californias, not only as for the maintenance of their religious, and to provide for the support and conduct of divine worship, but The full and exact trusts, including all omitted portions, read 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 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 L * * * also to aid the native converts and catechumens by the same (probably "from the misery") of that country: so that if thereafter, by God's blessing, there be means of support in the "reductions" and missions now established-as ex. gr. by the cultivation of their lands, thus obviating the necessity of sending from this country clothing and other necessaries-the rents and products of said estates shall be applied of (surely to) new missions and in case the Society of Jesus, voluntarily or by compulsion, should abandon said missions of the Californias, or, which God forbid, the natives of that country should rebel and apostatize from our holy faith, or in any other (such) contingency, then, and in that case, it is left to the discretion of the reverend father provincial of the Society of Jesus in this New Spain, for the time being, to apply the profits of said estates, their products and improvements, to other missions in the undiscovered portions of this North America, or to others in any part of the world, as he may deem most pleasing to Almighty God; and in such a way that the government of said estates be always and perpetually continued in the reverend Society of Jesus and its prelates, so that no judge, ecclesiastical or secular, shall exercise any control therein * desire that at no time shall this donation be set aside nor shall any judge, ecclesiastical or secular, undertake to investigate or intervene to ascertain whether the conditions of this donation be fulfilled; for our will is that in this matter there shall be no pretense for such intervention, and that whether the said reverend society fulfills or does not fulfill the trusts in favor of the missions herein contained it shall render account to God, our Lord, alone. * * we B. The decision above referred to, rendered in Washington on the 11th of November, 1875, could not prejudge the present claim, which, therefore, can not be regarded as res judicata. Now we are treating of a claim for new interests, and even if the claimants maintain that in condemning Mexico to pay the accrued interests up to a certain date, it was declared impliedly that the capital existed and would continue to produce revenues, those would be considerations or reasons (motifs) for the judgment which was made that the Republic of Mexico must pay a definite amount of accrued interest to which the claim was limited. The immutability of a judgment and its force as res judicata belong alone to its conclusion (conclusión); that is, to that part which pro necessaries, the rents and products of said estates shall be applied to new missions to be established hereafter in the unexplored parts of the said Californias, according to the discretion of the Father Superior of said missions; and the estates aforesaid shall be perpetually inalienable, and shall never be sold, so that, even in case of all California being civilized and converted to our holy catholic faith, the profits of said estates shall be applied to the necessities of said missions and their support; and in case that the reverend Society of Jesus, voluntarily or by compulsion, should abandon said missions of the Californias, or (which God forbid) the natives of that country should rebel and apostatize from our holy faith, or in any other such contingency, then, and in that case, it is left to the discretion of the reverend father provincial of the Society of Jesus in this New Spain for the time being to apply the profits of said estates, their products, and improvements to other missions in the undiscovered portions of this North America, or to others in any part of the world, according as he may deem most pleasing to Almighty God, and in such ways that the government of said estates be always and perpetually continued in the reverend Society of Jesus and its prelates, so that no judges, ecclesiastical or secular, shall exercise any control therein or intervene in or about the same; and all such rents and profits shall be applied to the purposes and objects herein specified, i. e., the propagation of our holy catholic faith; and by this deed of gift we, the said grantors, both divest ourselves of and renounce absolutely all property, dominion, ownership, rights, and actions, real and personal, direct and executive, thereover, and all others whatever which belong to us or which from any other cause, title, or reason may belong or appertain to us; and we cede, renounce, and transfer the whole thereof to said reverend Society of Jesus, its missions of Californias, its prelates and religious, under whose charge may happen to be the government of said missions and of this province of New Spain, now and at all times hereafter, in order that from the profits of said estates and the increase of their cattle, large and small, their other gains, natural or otherwise, they may maintain said missions in the manner above proposed, indicated, defined, and laid down forever. (Following parts of quotation not included as not properly trusts.)—J. H. Ralston, agent United States. |