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

Memorial of the claim of the United States of America against the Republic of Mexico.

(Submitted to the determination and judgment of the arbitral court provided for in the protocol of an agreement between the said Republics, bearing date on the 22d day of May, A. D. 1902.)

This claim is made by the United States aforesaid, on behalf of the Roman Catholic Church, of what was formerly known as Upper California, represented by the Roman Catholic Archbishop of San Francisco, California, and the Roman Catholic Bishop of Monterey, California, successors of the former Bishop of the Californias.

I. The said claimants show to this honourable court, that the said Roman Catholic Archbishop of San Francisco is a corporation sole incorporated under the laws of the State of California, and the said Roman Catholic Bishop of Monterey is also a corporation sole incorporated under the same laws; that the Most Reverend Patrick W. Riordan is the incumbent of said first mentioned corporation, and the Right Reverend George Montgomery incumbent of the said last mentioned one, and that as such Archbishop and Bishop they are successors of the Right Reverend Francisco Garcia Diego, formerly Bishop of the Californias, now deceased.

The said claimants thereupon allege that the Republic of Mexico is indebted to the Roman Catholic Church of that portion of the United States which was formerly designated and known as Upper California, represented by the Bishop and Archbishop aforesaid, in a large sum of money, to-wit: in the sum of one million four hundred and twenty thousand six hundred and eighty-nine dollars and sixty-seven cents, in Mexican Gold money, for the portion of the interest or income which has accrued since February 2nd, 1869, on the capital of the Pious Fund of the Californias corresponding, and properly belonging to what was anciently known as “Alta California” or Upper California, now a portion of the United States of America.

II. The Pious Fund of the Californias was a great charity, founded and endowed during the closing years of the seventeenth and portion of the eighteenth century, for the purpose of propagating the Catholic faith in unsettled portions of Spanish North America, called the Californias, and included, as did the whole scheme of the Spanish conquest of America, the conversion to the Catholic faith of the Indian tribes of the country, as well as the establishment of churches, the support of the clergy and the maintenance of divine worship there, according to the faith and rites of the Catholic Church.^a It was confided to the Society of Jesus. A copy of the foundation deed with a translation thereof is among the papers to be submitted to the Court, from which deed the following is an extract:

To have and to hold, to said missions founded, and which may hereafter 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 the case of all California being civilized and converted to our holy catholic faith, the profits of said estate shall be applied to the necessities of said missions and their support: etc.

III. The said fund was contributed by private individuals and religious societies, and placed in the hands of the Society of Jesus in New Spain, for the purposes above indicated, and was held in trust and administered by the said Society. The income derivable from ten thousand dollars being found sufficient for the support of a mission each contributor of that sum was at first deemed to found a particular mission and was allowed to give it a name.^a But there was no actual separation of the funds and the investment and management of them having been always united in the same hands, the aggregate of the moneys and property contributed, ere long became considerable and obtained and oecame known by the name of “The Pious Fund of the Californias.” It originated in the year 1697,^b when the Reverend Juan María Salvatierra and the Reverend Juan Ugarte, of that Society, began collecting means for the proposed undertaking, under the name of limosnas or alms, from charitable persons, to aid them in the work of Christianizing the inhabitants of the Californias, to attempt which they had obtained the permission of the Spanish Crown, on condition that the Public Treasury should not be called upon to furnish any money for the undertaking. A list of the earliest contributions for the purpose is to be found in a little work, published in Valencia in the year 1794, entitled “Noticias de la provincia de Californias, en tres cartas de un sacerdote religioso, hijo del real convent de predicadores de Valencia, a un amigo suyo.” (Carta II, pag 48, 49.)

In 1735 Don José de la Puente y Peña, Marquis de Villa-puente, and his wife, Doña Gertrudis de la Pena, Marchioness de las Torres de Rada, by deed of gift inter vivos conveyed to the Society of Jesus in New Spain, for the support of their missions in the Californias, estates and properties of great extent and importance, valued at the time at over four hundred thousand dollars; and to the fund thus augmented were aggregated the contributions enumerated in the “Tres Cartas” and others amounting to over one hundred and thirty thousand dollars. The purposes contemplated by the contributors being clearly expressed in the deed of the Marquis and Marchioness above named, that instrument came to be looked upon, and spoken of, as the foundation deed, although considerable contributions preceded it in time. Another large contribution to the fund of about one hundred and twenty thousand dollars followed, from the Duchess of Gandia,^a and still another of great magnitude, from Dona Josef a Paula de Arguelles, a wealthy lady of Guadlajara, who by her will bequeathed one-fourth of her residuary estate to the Jesuit College of Santo Tomas of Guadlajara, and the remaining three-fourths to the Jesuit Missions of New Spain, and of the Philippine Islands, in equal parts. The bequest to the College was renounced by the legatees, and litigation ensued as to the disposition of the property of the testatrix, resulting in a decree or judgment, which was appealed to the Audiencia Real of New Spain and thence to the Council of the Indies. By the time a decision by that tribunal was reached the Jesuits had been expelled from the Spanish Dominions, and even suppressed by the Holy See; the management of the property devolved on the Crown and the three-fourths of this estate devised to these missions were therefore ordered by the decree to be employed in equal moieties in the Missions of New Spain and those of the Philippine Islands under the direction of the Monarch; one-half of them was thereupon aggregated to the Pious Fund of the Californias and of the other half was formed a fund for the support of the Missions in the Philippine Islands, the interest of which was periodically remitted to them for that purpose.

IV. The text of the Pragmatic Sanction expelling the Jesuits from the Spanish dominions is to be found in the Novísima Recopilacion Lib. I, Tít. 26, Ley III. Edicion de Salvá, Paris 1846, pp. 183, 184, 185. The Crown in taking possession of the properties that were held in trust, took them cum onere, or as expressed in Section 3, “sin perjudicio de sus cargas, mente de los fundadores” and thus the management of the whole Pious Fund of the Californias (for want of trustees capable of acting) devolved on the Crown, and continued to be conducted and managed, as a trust for the benefit and support of the Missions, by a Royal Commission, until the accomplishment of Mexican independence, when it passed to the hands of the new government, and remained in the management of Mexico down to the year 1836, when the Californias were erected into a diocese, and the Reverend Francisco Garcia Diego, having been appointed and consecrated Bishop thereof, the administration and control of the Pious Fund was transferred to him, as such, in pursuance of an Act of the Mexican Congress passed September 19th, 1836. On February 8th, 1842, General Santa Ana, then provisional President of the said Republic, with extraordinary powers, made a decree resuming the administration of the Pious Fund by the Mexican Government, and requiring all the properties of the Fund to be delivered to General Gabriel Valencia, whom he had commissioned for the purpose, to whom they were surrendered by Don Pedro Ramirez, the apoderado or agent of the Bishop, accompanied by an official inventoiy or instruccion circunstanciada, of which a copy forms part of the record of the former arbitration. On the 24th of October, 1842, in pursuance of another decree of the same provisional President, the properties of the Pious Fund were incorporated into the National Treasury of the Mexican Republic and directed to be sold, the Republic undertaking to pay interest on the proceeds at six per cent, per annum. War broke out between the United States and Mexico in 1846, which was terminated by the treaty of Guadalupe Hidalgo, bearing date February 2nd, 1848, and Upper California, being all the Territory originally claimed by Spain, and after its independence, by Mexico, north of the Gila River and of a line from the mouth of said river to the Pacific Ocean, at a point one league south of the Bay of San Diego, was ceded by Mexico to the United States in consideration of fifteen million dollars, and other considerations, amounting to several millions more.

The events, of which the above is a brief synopsis, are more fully related in the “Brief History of the Pious Fund of California,” and amply corroborated by printed extracts from various historical works and public documents which form a part of the record of the former arbitration, to be presently referred to. Hence they are here related very succinctly.

V. During the twenty years immediately succeeding the treaty of Guadalupe Hidalgo many claims arose, made by citizens of each republic against the government of the other for damages, resulting from injuries of various sorts, and a convention for the settlement of all these various claims, was concluded between the two nations, bearing date July 4th, 1868 (to which as a matter of public international law reference is made without setting forth its terms), under which an international tribunal was constituted for the determination of all such claims, and their payment was provided for. The said tribunal opened its sessions in the City of Washington on the 31st of July, 1869. To this tribunal the Roman Catholic Archbishop of San Francisco and the Roman Catholic Bishop of Monterey, then in office, as successors of the Right Reverend Francisco Garcia Diego, Bishop of the Californias, presented a claim on behalf of the Roman Catholic Church aforesaid for so much of the interest on the capital of the Pious Fund accrued since the date of the treaty of Guadalupe Hidalgo, viz: the 2nd of February, 1848, as properly belonged to Upper California. The time for making awards under the said Convention of 1868 was originally limited to two years and six months from the first meeting of the Commission, viz: July 31st, 1869. But such time was enlarged by supplementary conventions between the two nations, dated April 19, 1871; November 27, 1872, and November 20, 1874; so that it finally expired on January 31, 1876, with six additional months thereafter, within which the Umpire was empowered to make his awards, in cases where the Commissioners had differed.

In the meantime, after a motion by the Counsel of Mexico to dismiss the aforesaid claim of the said Archbishop and Bishop on the ground that the Commission had not jurisdiction of the case, proofs were offered and argument on the merits of the claim suggested by each party, and on the 19th of May, 1875, the Mexican and American Commissioners filed their opinions in the case, whereby it appeared that they differed totally; the American Commissioner being of opinion that an award should be made in favor of the claimants for one-half of the interest at six per cent, per annum on the capital of the Pious Fund (the amount of which capital he decided to be $1,436,033.00) and the Mexican Commissioner being of opinion that no sum whatever should be awarded them. Thereupon, under the provisions of the said original Convention of July 4th, 1868, and the several conventions supplementary thereto, above mentioned, the said case was referred to Sir Edward Thornton, then Minister Plenipotentiary to the United States Government from the Queen of the United Kingdom of Great Britain and Ireland, who had been chosen and was acting as Umpire in such cases, for his decision. The decision of said Umpire not having been announced within the time allowed therefor by the supplementary convention of November 20th, 1874, to-wit: the 31st of January, 1876, another supplementary convention dated April 29th, 1876, was concluded between the two governments whereby the term within which the Umpire might make an award was further extended to November 20th of that year.

VI. On the 29th of November, 1875, the said Umpire signed his decision in favor of the claimants, and said decision became known to the Agent of the Mexican Republic, who, on January 29th, 1876, filed with the said Umpire a petition on behalf of Mexico for rehearing, and on September 19th of the same year presented an extended argument in support thereof. He pointed out an error of one thousand dollars in the addition of the items composing the capital of said Fund, which was rectified by the Umpire on the 18th of November, 1876, and on the same day said Umpire rendered his final award in the case in favor of the claimants, for the sum of $904,070.79 in Mexican Gold coin, being twenty-one years interest at 6 per cent, per annum on one-half of the capital of the said Pious Fund, to-wit: the principal sum of $717,516.50, which award was in due course fully and punctually paid by the said Republic of Mexico in accordance with the terms of the said convention of July 4th, 1868.

VII. The said Republic however again defaulted in the payment of the current interest on the said Pious Fund Capital, in consequence whereof and at the instance of the present incumbents (the said Joseph S. Alemany having meantime been translated to another diocese, and afterwards departed this life, and been duly succeeded as Archbishop of San Francisco by the Most Reverend P. W. Riordan; and the said Thadeus Amat having been succeeded by Francis Mora as Bishop of Monterey, who in his turn was also succeeded by the Right Reverend George Montgomery, being the present incumbent of the said diocese of Monterey, and the said Patrick W. Riordan of that of San Francisco), the government of the United States demanded payment thereof from the government of Mexico, which the said government of Mexico refused, and in fact, the annual interest of $43,050.99 remains unpaid for each and every year after the year 1868, down to the present day, the United States on behalf of the said prelates, insisting that the adjudication by the Umpire of the Mixed Commission created by the Convention of July 4th, 1868, above mentioned, establishes conclusively the amount of said annual interest to be the sum of $43,050.99, and the liability of Mexico for the payment thereof in Mexican Gold Coin on the 24th of October of each and every year after 1868 as res judicata, and Mexico denying such liability and the finality and conclusiveness of such judgment. Which question has been by the consent of the high contracting parties, by the protocol dated May 22nd, 1902, referred to this Honourable Court to determine.

VIII. Second. The said United States insist that, if the said liability and its amount are not deemed by this honorable Court to be conclusively established by the said adjudication made under the Convention of July 4th, 1868, then the indebtedness of Mexico, justly due to the said prelates, on behalf of their church as aforesaid, for the interest on the portion of the said Pious Fund, corresponding to what was formerly known as Upper California, is really a much larger sum than that above demanded. And in support of said last allegation they aver that the following errors and omissions occurred in making said award, occasioned by the ignorance of counsel of material facts relating to the same, and their consequent failure to make proof thereof, and to oversight of the Commissioner and Umpire, as follows, viz.:

1. The claim for the amount received by the Mexican Government from sales, or otherwise from the property donated or bequeathed by Dona Josepha de Argüelles, was stated in the exhibit filed with the Memorial before the former Mixed commission, to amount to the sum of $681,946.00. A portion of this, amounting to $496,291.00 was erroneously claimed, having been already included in the enumeration of “assets of the pious fund” in the same exhibit. Of the remaining $185,654.91 thereof, $105,045 was improperly rejected, as will be shown by the evidence. The capital of the Pious Fund should therefore be increased by said last mentioned amount.

2. In making the said award the proceeds of the hacienda called the “Ciénaga del Pastor” were excluded from the computation of the said principal, because the same was stated in the inventory or “instruccion circunstanciada” of Don Pedro Ramirez to be embargoed or attached, and the claimants had no knowledge or means of learning the ultimate results of said attachment or embargo, or the amount realized by Mexico for the said hacienda. The said claimants have since learned and aver that the three-quarters of said hacienda belonging to the Pious Fund, were sold by the Government of Mexico for $213,750, which sum should therefore be added to the capital of the said Pious Fund, in the interest of which they were then and are still entitled to participate.

3. The award or opinion of Commissioner William H. Wadsworth which the Umpire adopted as the basis of his decision in the former arbitration shows that in calculating the amount of the capital of the Pious Fund, he deducted from the amount of the claims against the Mexican Government the sum of $7,000, as a bad debt, under the date of October 20th, 1829. This deduction was erroneous, and the adjudged capital of the said fund should be augmented by the said sum, and the income of the fund by the interest thereon amounting to $420 per annum. The said Commissioner and Umpire designate the said sum as a bad debt, referring to the instruction circunstanciada of Don Pedro Ramirez, from which the item is taken, but the text of said document shows this to be an error, resulting from a misunderstanding of its language.

4. The claimants are informed and believe and therefore aver, that the Mexican Government borrowed from the Pious Fund, in or about the month of July, 1834, various sums amounting in the whole to $22,763.15, which loans have not, nor have any of them been repaid, and they therefore claim that the said sum of $22,763.15, which was omitted from the claim made before the Mixed Commission aforesaid, by reason of the ignorance of counsel of the facts, this amount should therefore be added to the aforesaid capital of the Pious Fund.

5. They also show that in the sale of the said hacienda of “Ciénaga del Pastor” was included certain personal property on said hacienda, under the name of “llenos” for the sum of $4,000, three-fourths of which belonged to the said Pious Fund, the capital of which should therefore be further increased by the amount of $3,000.

6. If the adjudication of the tribunal constituted under the Convention of July 4th, 1868, is not deemed conclusive as to the amount due to the claimants on account of the Pious Fund by the Mexican Republic, neither is it conclusive as to the proportion in which the same should be divided between Upper and Lower California, and an equal division between the two former provinces, whatever excuse may have appeared to exist for it in 1875, is at the present day wholly unjust and indeed absurd. The present population of the region, which under the Spanish and Mexican dominion was known as Upper California, as shown by the United States Census of 1900 is 3,000,000 souls and upwards and steadily increasing; the number of priests within its borders performing active missionary duty was then 284. Lower California, on the other hand, has ceased to retain its former importance. Its total population is only a little over 42,000 individuals, as stated in the “Statesman’s Year Book” on the authority of the Mexican Census of 1895. The number of clergy as well as can be estimated from the Memorial or report of Ulysses Urbano Lassépas, compiled by order of the Mexican government (1859), could not then have exceeded 24. Mexico can, of course, furnish the actual number. An equal division of a fund, for missionary purposes, between two populations so wholly disproportionate as these, seems entirely absurd.

The United States have reason to believe that the evidence to be adduced before this honorable Court in the course of this arbitration will show other and additional sums due by Mexico, and going to increase the capital of the said Pious Fund in the Public Treasury of Mexico on which interest as aforesaid should be allowed. And the said claimants allege and insist that the true basis of a division of the income of the Pious Fund between Upper and Lower California is in proportion to population which would give to Upper California 85 per cent, and to Lower California 15 per cent, of the whole.

conclusion.

We propose now to state the capital of the Pious Fund and show the amount due by Mexico under each of the two alternatives above suggested, viz:

I. If the amount and rate of division are deemed settled as res judicata;

II. In the contrary supposition, viz: that the whole question is open.

I. If the amount of the Fund and rate of division between Upper and Lower California are deemed to be established as res judicata the account will stand thus:

Principal as shown (after deducting $1,000 for said error in addition).	$1,435,033.00
The half of this sum corresponding to Upper California	717,516.50
The interest, 6 per cent, on which is	43,050.99
Total in this case (33 installments, at $43,050.99)	1,420,689.67

II. If the said amount and rate of division are not deemed fixed as res judicata, the capital of the Pious Fund should be stated as follows:

real estate.

Houses on Vergara street, ¾ of annual income, viz: $2,625, belonging to the Pious Fund, which, capitalized at 6 per cent, corresponds to a capital of (Instruction of Ramirez, p. 28½)	$43,750.00
Hacienda “Ciénaga del Pastor,” ¾ of annual income, viz: $12,825 belonging to the Pious Fund, which, capitalized at 6 per cent, represents a capital of (Id., p. 30)	213,750.00
“Llenos” (personality) sold with the same	$3,000.00
Haciendas “San Augustin de Amoles,” “El Custodio,” “San Ignacio del Buey,” and “La Baya,” annual income of $12,705 belonging to the Pious Fund, which at 6 per cent represents a capital of (Id., pp. 30–31)	211,750.00
Hacienda “San Pedro de Ibarra,” annual income $2,000, belonging to the Pious Fund, which at a per cent represents a capital of (Id., p. 30)	33,333.33

mortgages.

$42,000 on Hacienda “Sta. Lugarda,” at 5 per cent (Id., p. 31).	42,000.00
On Hacienda “Arroyozarco,” $40,000, at 6 per cent, with arrears of interest amounting to $26,770.75	66,770.75
On Hacienda “San José Minyo,” $3,000, at 5 per cent, with arrears of interest amounting to $2,275.	5,275.00

owed by public treasury.

$20,000 borrowed during Spanish rule with arrears of interest at 5 per cent, $29,166.54, down to April 30th, 1842 (Id., p. 32).		49,166.63
$201,856.75 with arrears at 5 per cent, since 1812 down to April 30th, 1842, $294,434.25 (Id., p. 32).		496,291.00
$162,618.37½ borrowed in 1810 with interest at 6 percent, in arrears since 1820, amounting down to April 30th, 1842, to $206,525.25 (Id., p. 33).		369,143.75
$38,500 formerly owed by College of San Gregorio, with arrears of interest at 3 per cent since 1811, amounting to$34,842.50 (Id., p. 33)		73,342.50
$68,160.37½ deposited in National Mint in 1825, no rate of interest mentioned (Id., p. 34).		68,160.37
$7,000 paid on October 28th, 1829, by order of Government for their account, no interest mentioned (Id., p. 34).		7,000.00
$22,763.15 advanced Government in 1834 (Id., p. 3).		22,763.15
$3,000 advanced to Government to pay for Bulls of Bp. Diego in 1836, no interest mentioned (Id., p. 34)		3,000.00
Government Bonds		15,973.375
Proceeds of the estate of Sra. Argüelles paid into the General Treasury according to decree of Court, from time to time, as set forth in Manuel Pay no’s Official Report, which after paying $10,000 to a charity in the Philippine Islands, should be divided one-fourth to the heirs of Sra. Arguelles, three-eighths to the Philippine Missions, and three-eighths to the Pious Fund. Up to August 2nd, 1803, there had been paid into the treasury on this account $544,901.10; from which amount for convenience we at once deduct $10,000 for the charity in the Philippine Islands. Three-eighths of the remainder will belong to the Pious Fund.	$200,606.64
February 9th, 1804, there was deposited $18,000, of which there belonged to the Pious Fund.	6,750.00
January 20th, 1809, there was deposited $80,000, of which there belonged to the Pious Fund.	30,000.00
February 1st, 1809, there was deposited $30,000, of which there belonged to the Pious Fund.	11,250.00
October 25th, 1809, there was deposited $25,000, of which there belonged to the Pious Fund	9,375.00
October 25th, 1809, there was deposited $75,000, of which there belonged to the Pious Fund	28,125.00
July 16th and 29th, 1812, there was deposited $8,000 of which there belonged to the Pious Fund	3,000.00
July 29th, 1812, there was deposited $19,000, of which there belonged to the Pious Fund	7,125.00
May 7th, 1814, there was deposited $28,453.63, of which there belonged to the Pious Fund.	10,670.00
Total	306,901.64
Of this amount $201,856.75 have already been taken into consideration, which we therefore deduct.	$201,856.75
Total amount due as received from Sra. Argüelles estate, not accounted for above		105,044.89

private individuals owed.

Estate of Dolores Reyes (Instruction, p. 34)	$9,850.00
D. Ramon Vestiz (Id., p. 35)	13,997.00
(We do not take into account debts of individuals considered in the former arbitration as bad.)
Grand total	1,853,361.75
The interest on this at 6 per cent per annum is	111,201.70
Eighty-five per cent of the last named sum is	94,521.44
Thirty-three installments of $94,521.44 amount to.	3,108,207.52

• Jackson H. Ralston,
  Agent of the United States.
• William M. Stewart,
  Of Counsel.

Prepared by—

John T. Doyle,

W. T. Sherman Doyle,
Of Counsel for the Prelates.

1. Nachrichten von der Amerikanischen Halbinsel Californien; Geschreiben von einem Priester der Gesellschaft Jesu, &c. Manheim, 1772, pp. 198—199 (Hereafter cited as “Nachrichten.”)

   Noticia de la California y de su Conquista Temporal y Espiritual hasta el Tiempo Presente. Sacada de la Historia Manuscrita, Formada en México año de 1739, por el Padre Miguel Venegas, de la Compañía de Jesús, &c, &c. Madrid, 1757, Vol. II, p. 11 et seq. (Hereafter cited as “Venegas.”)

2. Venegas Vol. II, pp. 12 and 13, 233, 235–236. Nachrichten, pp. 214, 222. Tres Cartas, ubi infra.
3. Venegas Vol. II, p. 11–14. Nachrichten, p. 199.
4. Storia della California, Opera póstuma del Nob. Sig. Abate D. Francesco Saverio Clavigero. 2 vols. Venice, 1789. Vol. II. pp. 139–140.