In the same letter (No. 1, Transcript, pp. 160, 500) Mr. Ramirez states that he had paid more than $30,000 on account of a loan of $60,000 which the Mexican Government had raised on mortgage of the Pious Fund, drawing interest at 2 per cent per month, and that he was under pressing demand for $2,000 more drawn for on him by the Government in favor of Mr. Eustace Barron, British consul, for money furnished to the colonization expedition. These two sums, amounting to $32,000, should, if the matter be open to question, be added to the capital of the fund, together with the above indebtedness of $223,750, amounting altogether to $278,493, and making its total capital $1,714,526, the annual interest on which at 6 per cent is $102,871.56. (See Ramirez, letter 1, above cited.) The colonization scheme proved an expensive failure, and there is so much reason, on the face of these papers and other circumstances, to suggest the probability that the whole expense of it was defrayed out of the Pious Fund, that if we could persuade ourselves that there is any probability that the court would go behind the award of the Mixed Commission of 1868, we would follow up the clues with confidence of obtaining proof of large sums so expended. But to us it is incredible that this high permanent international court will ever so far undervalue its own decisions as to hold that a demand solemnly adjudged by a similar tribunal can be reopened at the instance of either party; hence, we follow this inquiry no further. 4. In the memorial of the present claim we have said: 6. If the adjudication of the tribunal constituted under the convention of July 4, 1868, is not deemed conclusive as to the amount due the claimants on account of the Pious Fund, neither is it conclusive as to the proportion in which the income should be divided between Upper and Lower California, and an equal division between the two former provinces (of Mexico), whatever excuse may have appeared to exist for it in 1875, is at the present day wholly unjust and, indeed, absurd. Lower California was the name applied to the peninsula that separates the sheet of water called the "Gulf of California," and sometimes the "Mar de Cortés," from the Pacific Ocean. It is a prolongation of the chain of coast mountains of the mainland lying to the north down to Cape San Lucas, where their summits cease to appear above the sea level. It has not a single permanent river, a most scanty rainfall, a very considerable area of desert, and a very small area of arable land; the greater part of it is mountain summits. Prior to the expulsion of the Jesuits its population (almost wholly Indian) may be assumed almost at 50,000. After that event disease speedily set in. Sailors visiting the coast introduced smallpox, measles, and nameless contagious diseases, which swept away the wretched population; "under the austere rule of the Dominicans the majority of the converts relapsed into barbarism." We have two authentic accounts of the general condition of the country from independent observers, and know of no others of any value. Venegas' California, published in Madrid in 1759, and a report made to the Mexican Government, by "Citizen Ulises Urbano Lassépas," and printed in the City of Mexico a hundred years later. Neither the account of the French expedition under Chappe d'Auteroche to observe the transit of Venus, in 1767, nor the Apostólicos Afanes, give general information on the subject. During the period that elapsed between the expulsion of the Jesuits and the publication of Lassépas' book, the ruin of the missionary establishments and the decrease of the inhabit a Greehow's Oregon, Ch. III, p. 107. ants of the country are manifest. Venegas' book is accessible in public libraries, and from that of Lassépas (which we believe to be a publication of the Mexican Government), we will append hereto extracts confirming this statement. Upper California, on the other hand, at the time the Pious Fund came into existence, though without definite boundaries, was understood, in Spain and Mexico, to extend up the coast of North America as far as Spain claimed, and eastward indefinitely. In proof of this claim of Spain at the time and after, we need only refer to the difficulty with England about Nootka Sound in 1790, where she asserted sovereignty as far up as latitude 60°. Coronado's great march of discovery (1540-1542), is now known to have taken him as far east as the present State of Kansas. In this enormous stretch of country, called by the Spaniards Alta California, and referred to in the foundation deed, have since grown up several flourishing American States-California, Oregon, Washington, Nevada, Utah, the two Dakotas, Colorado, and Montana. The population of these, according to the last United States census, is 3,714,000, and other statistics as given in the Catholic Directory are as follows: The object of missionary effort lies always in the future. No one who has read anything of Catholic missions among barbarous people will fail to recognize that their leading idea was to get control of and educate the children in Christian habits and morals. They could expect to accomplish little with the adult population beyond inducing them to abandon their nomadic life and dependence on the chase, in favor of stable residence in villages and the cultivation of the soil, to clothe themselves decently, and abstain from polygamy and wars. To divide equally a fund destined for missionary purposes between the inhabitants of two countries so widely dissimilar in character, prospects, population, and the capacity to support population as Upper and Lower California is, as it seems to us, rightly characterized as absurd. We are aware of and do not undervalue the excuse for it that existed twenty-seven years ago, when the judgment of the Mixed Commission was pronounced. It was then contended by the leading counsel for the claimants that a division in the proportion of 9 to 1, or, perhaps, 8 (Transcript, p. 477) to 1, would be proper, in view of the extent and capabilities of the two countries, but this claim was opposed by gentlemen, resident on the spot, his juniors, who had been retained to assist him and who, regarding the whole business of missions as analogous to commercial partnerships for gain, and relying on judicial decisions that, in the absence of evidence to the contrary, the interests of partners would be presumed to be equal, declared an equal division to be the just one (p. 594). The anticipations of 1875 have been realized by the close of the century, as the above figures show. The last Mexican census appears to give an increase of population to the peninsula. Assuming its correctness, we have claimed in the memorial in the present case 85 per cent of the income for Alta California against 15 per cent for the peninsula, which is a division decidedly liberal to the latter. From a publication entitled "Diccionario Universal de Historia y de Geografia, 10 vols., 4to., México Libreria de Andrade, 1853," we find that the population of both the Californias in 1793, as stated in the report of Conde Revilla-Gigedo, was 12,666. In 1805 the population of Lower California is laid down as 4,669. In 1810 it is stated at 4,496; in 1842 as 3,766; and in 1851 as 8,290. (Tomo II, pâg. 50 et seq. Verb. Antigua California.) III. Something should perhaps be said as to the money in which the award should be made, and in reply to the suggestion of Sr. Avila, that interest on so much of the public debt as went to make up the capital of the Pious Fund should not be allowed, for the reasons assigned in his argument for rehearing. (Transcript, p. 642; secs. 158-159.) These matters may be briefly discussed together. In 1842, when the Pious Fund was incorporated into the public treasury, the standard of money value was the gold dollar. The great depreciation of silver has occurred since that time. As said above, when a sovereign constitutes himself trustee his duties are precisely the same as those of a private person in like case. Were an individual to allow the trust funds in his hands to remain invested in securities that were steadily falling in value, until from par they had gradually sunk to 40 or 35 per cent, or whatever the present value of silver is, no court would hold him free from blame or entertain any excuse for it. And here the trustee is not such by the appointment or will of the founder of the trust established, nor at the suggestion of the beneficiaries; he has thrust himself in the office against the will of both. The Marquis de Villapuente and his wife provided distinctly in the foundation deed (Transcript, 103), "que ambos otorgantes queremos que en tiempo alguno se inculque, ni por ningun juez eclesiástico ó secular se entrometa á saber si se cumple la condicion de esta donacion, pues nuestra voluntad es que en esta razon haya lugar ninguna pretension, y que cumpla ó no cumpla la Sagrada Compañia con el fin de las misiones, en esta materia, solo á Dios nuestro Señor. tendrá que dar cuenta, pues tenemos la entera satisfaccion de que cumplirá con su obligacion, y hara lo que fuere mas del agrado de Dios neustro Señor." The bishop who represented the beneficiaries protested against the act. A trustee who comes in thus in invitum can hardly be heard to allege any reason for failing to pay his own indebtedness to the trust estate. And the excuse which Señor Avila puts forward for him is of the flimsiest sort. He says (Transcript, p. 644, § 171): "Por último, obligar al Gobierno de México al pago de réditos de una parte de su, deuda pública, cuando es notorio que no pueda pagarlos á todos sus acreedores, es establecer un privilegio irritante en beneficio de una corporacion Americana," etc., but the court will not fail to remark that the privilege is the direct and necessary consequence of the acts of Mexico herself. She was not asked to take upon herself the position of a trustee. She did it ex motu proprio, and in doing so gave to the cestuis que trustent or beneficiaries the right to say, we are not ordinary public creditors. We have ceased to be such by your act. You, by forcing yourself on us as trustee, have made us preferred creditors. Whatever reduction, abatement, or concession you may make with other creditors, you have by your new act bound yourselves to pay us in full. You have sunk your character of sovereign in that of trustee and must abide the consequences." Such was the view taken of the case by the former Mixed Commission, and its judgment is binding on both parties, not only by the nature of the case, but by the express terms of the convention of 1868, as above quoted. The obligation of a trustee to pay what is due by him to his cestui que trust is held sacred the world over. We do not believe that a bankrupt or insolvent law of any country provides for the discharge of the debtor from such debts. Here the the question propounded by the protocol is, Is this a just claim? We answer it by the counter question, Can any upright mind doubt it? Writing without any knowledge of what may be alleged on the other side by the eminent gentlemen charged with the defense of the interests of Mexico in the present case, except so far as may be surmised from the former one, we have omitted the discussion of questions then considered, in the confidence that the learned judges presiding here will do us the honor to read our arguments before that tribunal, at pages 80, 462, and 557 of the printed Transcript. The only matter discussed in them to which we shall specially allude here is the transactions between Mexico and Spain as to the fund of the Philippine missions, regarding which we are now better informed than we then were. As stated in a note to page 16, all the endowment of the Philippine missions existent in Mexico, except two estates of minor importance, was derived from the residuary estate of Señora Arguelles already mentioned. During the war of independence remittances of the income to the Philippines were suspended, but after the establishment of Mexican independence an agent of those missions came to Mexico to obtain the arrears. The two small estates called “la chica" and "la grande" had been sold, and Mexico agreed to pay for them the sum of $115,000, besides $30,000 additional for back rents or interest. This agreement was evidenced by a convention between Spain and Mexico dated November 7, 1844, the text of which is to be found in the "Colleccion de tratados con las naciones estranjeras, leyes y decretos que forman el derecho internacional Mejicano" (Mexico, 1854), at page 516. This was Mexico's formal acknowledgment of what she regarded as her duty in that case. On the former arbitration, D. Manuel de Aspiroz fell into the error of supposing that this concession to Spain was one of the inducements to her acknowledgment of Mexican independence (p. 249, par. 136, etc.). But this was shown (at p. 474) to be a mistake, for Spain acknowledged the independence of her former colony by the treaty of Madrid, December 28, 1836, eight years before the signing of the convention of November, 1844. The latter, however, only disposed of the two haciendas mentioned which have been alienated. The interest of the Philippine missions in the residuary estate of Señor Arguelles remained, and could not be denied. Of these properties, too, some at least had been sold, and Mexico agreed to pay over the prices received for them. She seems also to have made some arrangement by which the three-fourths of the "Cienega del pastor" and the house on Vergarra street, which had been owned by the Philippine missions and the Pious Fund in common, should thereafter belong to the latter in severalty," and further negotiation with Padre Moran and the Spanish minister led to a second convention, of December 6, 1851, which is found at page 32 of the Transcript, followed by a statement of the sums paid and remaining due underit, taken from Manuel Payno's report. The author earnestly resents agreeing to pay the sums shown by the books of the treasury department to have been received for the property, instead of calling on Spain to prove them by other evidence. Payno's statement is too lengthy to be summarized here, but fully bears out all we have claimed for it. With this imperfect review of it, we respectfully submit the case to the impartial and enlightened consideration of the court, with the final observation that the promise to pay the interest is dated October 24, and in the absence of a special agreement the installments of interest mature on that day, in each succeeding year thereafter. The latest included in the former award was that which matured October 24, 1868. Thirty-three have since accrued, and another will become due October 24, 1902. A table showing the dates and amounts herein discussed will be hereto annexed, or presented herewith. a MENLOPARK, CAL., August, 1902. JOHN T. DOYLE, W. T. SHERMAN DOYLE, They probably bought out the Philippine mission interest with moneys of the Pious Fund. |