the United States is illustrated by their treatment of the Weil and La Abra claims. Those claims were submitted to and decided by the arbitration under the convention of July 4, 1868, and the aggregate of the judgments in the two cases rendered against Mexico amounted to $1.130,506.55. Upon the suggestion by Mexico to the United States of a discovery of false evidence and perjury in obtaining such judgments, the United States, although Mexico had paid the money into their treasury, refused to pay the same to the claimants. Congress thereupon passed a law giving the courts of the United States jurisdiction to hear and determine both of those cases, and after a full and fair hearing such courts held that the claims were fraudulent; whereupon all the money deposited in the treasury for the payment of the Weil and La Abra claims was refunded to Mexico in gold coin. But the United States have continued to insist upon the solemn obligation of Mexico to pay to the bishops of California the interest on the Pious Fund dedicated for use in the Californias. The character and standing of the various Secretaries of State of the United States who have called the attention of Mexico to and reminded her of her obligation to make such payment ought to be accepted as some proof of the good faith of that Government. The following is a list of the officers of the United States who have conducted the negotiation with Mexico which has terminated in the present proceedings: Hon. William F. Wharton, Acting Secretary of State, August 3, 1891. (Transcript, Diplomatic Correspondence, p. 23.) Hon. James G. Blaine, February 19, 1892. (Same, p. 24.) Hon. W. R. Day, Acting Secretary, July 17, 1897. (Same, p. 22.) XII. (Same, p. 46.) We will now briefly consider the complaints of extravagant demands and bad faith made by Mexico against the United States. The claim of the United States that the interest due to the bishops of California should be paid in the gold coin of Mexico and not in depreciated currency is made one cause of complaint. Mexico can hardly afford to insist upon paying the bishops of California in silver, since she has recognized her duty to pay her other foreign obligations in gold. The interest on her bonded debt which is dealt in by foreigners is paid in gold. Her recognition of the money current in commercial nations has strengthened her credit and been of great benefit to her both at home and abroad. The payment to the bishops in silver would be grossly inequitable. At the time Mexico sold the estates belonging to the Pious Fund and covered the entire property belonging to that fund into her treasury, and undertook to pay interest thereon, her silver coin was at a premium over the gold coin of any other country. In the second section of the act of October 24, 1842, we read: The minister of the treasury will proceed to sell the real estate and other property belonging to the Pious Fund of the Californias for the capital represented by their annual product at six per cent per annum. (Laws of Mexico, p. 7.) FR 1902, PT 3——17 In the unsettled and revolutionary condition of Mexico the vast haciendas belonging to the Pious Fund could not possibly have produced a net income corresponding to their actual value. Mexico had just passed through a struggle for independence and was in a revolutionary condition. It is certain that no hacienda in that country was producing at the time a net revenue equal to 6 per cent on the value of the property. It is even doubtful if 2 per cent was then realized upon any hacienda in the Republic. The property sold must have been worth at least three times what was received and covered into the treasury. The former members of the tobacco monopoly, to wit, Messrs. Don Francis de Paula Rubio and brother, Don Manuel Fernandez, Don Joaquin Maria Errazu, Don Felippe Neri de Barrio, Don Manuel Escandon, Don Benitto de Magua, and Muriel Brothers, made an offer of purchase within twenty-four hours from the passage of the law. These gentlemen knew the value of the property and were ready to purchase as soon as, and perhaps before, the law was passed. Their prompt action indicates that they realized that the sale of the haciendas at the price fixed was an opportunity to make money. (See deed, Exhibit D, to replication on behalf of the United States.) Since Mexico by that sale must have sacrificed a very large part of the property of the Pious Fund, it would be extremely inequitable to allow her to pay such an obligation in depreciated money. If Mexico keeps in circulation depreciated currency, it should not affect the claim of the bishops. She coins both gold and silver, and her gold coin corresponds in value to the money she covered into her treasury belonging to the Pious Fund; but her silver coin is at a discount, when compared with gold, of nearly 60 per cent. While Mexico may require her citizens to receive any kind of money which by her law is current, it is grossly inequitable for her in her capacity as trustee to pay in a depreciated currency an obligation contracted by her when her money was gold or its equivalent. Notwithstanding Mexico, as we have already seen, forced the sale of the properties of the Pious Fund without the consent of the beneficiaries, she has failed to perform her undertaking as trustee in the payment of interest. The former award reduced the annual installments of interest due the bishops to $43,080.99, which must be accepted if the matter is res judicata. In that case simple interest at 6 per cent on each of such installments from the time it became due, without including the principal, amounts to $2,858,652, which, according to the principles of equity, Mexico ought to pay in gold. It is not "meet and proper under all the circumstances of the case" to exonerate Mexico from the payment of interest and permit her to pay in depreciated currency. Article X of the protocol, submitting the kind of currency in which the judgment is to be paid, must be considered in connection with the power conferred upon this honorable tribunal to do justice between the parties. XIII. There is another consideration which the representative of Mexico has entirely overlooked, and that is the liberality shown to Mexico in the judgment rendered by Sir Edward Thornton, the umpire, in allowing Upper California only one-half of the interest due on the Pious Fund belonging to the two Californias. The donations were made for the conversion of the natives of the Californias and for the maintenance and support of Catholic worship in that region. It is true that the work was commenced by the Jesuits in Lower California, because that locality was more easily reached from Mexico than the great body of the country contemplated by the donors. Comparatively little was accomplished in Lower California on account of the barren and desolate character of the country, which afforded sustenance for only a very few natives, and could not be made the home of any considerable population. Father Rubio, who gave evidence before the mixed commission in 1868, declared that he was 68 years of age at that time; that he had resided at the Mission of San José for thirty years, and at the Mission of Santa Barbara nine years; that he had been most of that time a vicar general in the Catholic Church, and had been engaged in instructing and converting the natives. He testified that the number of missions in Upper California was 21 and in Lower California 13, giving the date of the establishment of each; that in Upper California in 1832, when he first went there to reside, there were 17,364 converted natives living at the several missions; that in Lower California there. were scarcely any Indians in the missions; that in some of the missions there were none; that more than seven-tenths of the whole population of the Californias subject to the missions belonged to Upper California. (Transcript, p. 148.) The reason for the diminution of the population of Lower California was the want of water and fertile soil. In 1857 Mexico appointed a commissioner by the name of Ulises Urbano Lassépas to examine into and report upon the resources and population of Lower California. The examination was very thorough and the report exhaustive. The country was found to be practically a rocky, barren waste, almost destitute of water, and the population to be very small and continually growing less. The report fully verifies the testimony of Vicar-General Rubio. (See De La Colonization de la Baja California, by Ulises Urbano Lassépas-Primer Memorial. 1859.) The writer visited the missions of Upper California in 1850. At that time he conversed with many reliable persons familiar with Lower California, who described to him the country and the inhabitants thereof. Lower California was said to be destitute of water for irrigation and practically uninhabited. The missions of Upper California were in a more prosperous condition. They had immense herds of cattle, horses, and sheep, and cultivated fields sufficient to more than supply the inhabitants with vegetables and cereals. Their vineyards and orchards were especially important. They furnished grapes and fruit for a population of many thousands of miners. The writer was much impressed with the fact that the greater part of the Pious Fund was not only intended to be used but was actually used in the fertile valleys of Upper California, where the field for missionary work and the necessity for funds for that purpose were many times greater than in Lower California. If the work done and the natives converted in the two Californias, when the writer visited that country in 1850, were compared, it would be an exaggeration to assume that as much as one-tenth of the proceeds of the Pious Fund was required to be used in Lower California. Certainly the result produced by the expenditure was at least as much as ten to one in favor of Upper California. The statement of Vicar-General Rubio that in 1832 seven-tenths of the whole population of the Californias subject. to the missions belonged to Upper California was undoubtedly true. Notwithstanding these historical facts, the umpire in the former case, to make it as easy for Mexico as possible, gave only one-half of the interest on the Pious Fund to Upper California. If the matter were not res judicata, but were open to reexamination as to all the facts, the United States would confidently contend for 85 per cent of the interest instead of one-half, which would then be a more liberal allowance to Lower than to Upper California. XIV. The statement of the representative of Mexico that there is no legal basis on which to claim anything from the donation of properties made by the Marchioness de las Torres de Rada and the Marquis de Villapuente to the Pious Fund is not sustained by the evidence. He has not pointed out how Mexico has lost one dollar by any alleged defective title of the estate of the marquis, nor what claims the heirs of the marquis have against Mexico in consequence of the sale of the property and the covering of the proceeds thereof into the treasury. On the contrary, the value of the estate which the umpire rejected and excluded from the fund was more than the amount demanded by the claimants under the marquis in full satisfaction of their pretended judgment. (Transcript, p. 520.) In addition to that, the representative of Mexico has utterly failed to show by the evidence adduced that Mexico has not retained in her treasury the entire proceeds from the sale of the Ciénaga del Pastor, amounting to $213,750. The evidence of such disbursements, if it exists, is in the possession of Mexico, and that Government not having furnished such evidence it is fair to presume no disbursements have been made in consequence of the alleged attachment. It must be presumed, in the absence of evidence to the contrary, which, if it existed, Mexico could and would produce, that the entire proceeds of the sales of the property of the Pious Fund were covered into the treasury and there remain. There is no evidence whatever in the record to warrant the exclusion of the $213,750 for which the Ciénaga del Pastor was sold. The amount now due, if the matter is not res judicata, as we have already seen, is $1.853,361.75, but the American commissioner, in the arbitration under the convention of 1868, leaving out sundry small items as bad debts or claims not sufficiently proved, and also the value of the Ciénaga del Pastor, reduced the total to $1,436,033. The umpire at first concurred in this amount, but afterwards deducted $1,000 on account of an error in calculation. He found the principal to be $1,435,033, and awarded one-half thereof, or $717,516.50, to Upper California. On an accounting, if the matter is not res judicata, the claimants would contend that the Ciénaga del Pastor, valued at $213,750, with 6 per cent interest thereon since July 4, 1848, together with the other items mentioned in the memorial, should be added to the capital of the Pious Fund, and that the bishops are entitled to 85 per cent thereof, making an aggregate of at least $3,108,207.52 now due. (Memorial, p. 11.) The charge of exaggeration of amounts must be disregarded, because Mexico has the records to prove such exaggerations, if they exist, and no such proof has been furnished. In the former arbitra tion Sir Edward Thornton, although he felt constrained to adopt the views of the commissioner of the United States, who excluded from his finding a large portion of the claim, was manifestly dissatisfied because the Mexican Government did not exhibit in its defense the records in its possession showing the actual amount which was covered into the treasury. He said: A larger sum is claimed on the part of the claimants, but even with regard to this larger sum the defense has not shown, except indirectly, that its amount was exaggerated. There is no doubt that the Mexican Government must have in its possession all the accounts and documents relative to the sale of the real property belonging to the Pious Fund and the proceeds thereof; yet these have not been produced, and the only inference that can be drawn from silence upon this subject is that the amount of the proceeds actually received into the treasury was at least not less than it is claimed to be. (Transcript, p. 609.) Notwithstanding the matter was called to the attention of Mexico by Sir Edward Thornton thirty-three years ago in the forcible language above quoted, the records and accounts referred to by him are still retained in the archives of Mexico, to which the claimants have no access. The nonproduction of the records which ought to show the amount of the Pious Fund covered into the Mexican treasury leaves no other inference than that "the amount of the proceeds actually received into the treasury was at least not less than it is claimed to be." The introduction of a book relating to legal proceedings which took place long ago without proving that it affected the fund covered into the treasury, is indirect evidence that there is nothing in the Mexican archives showing that the amount claimed is excessive. The inventory of Ramirez and the items particularly described in the memorial can not be charged by the defense as excessive in the absence of proof to sustain such charge. The basis for everything claimed in the memorial must have been of record and must now be in the possession of the defense. No evidence having been produced by Mexico to contradict the claimants' case, the presumption that the amount stated is correct will prevail. XV. We have made the foregoing statement of the case, not because we doubt that the decision in the former arbitration is res judicata as to the amount of interest annually due to the bishops of California from the Mexican Government, but to answer charges of unfairness against the United States. |