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[Prepared by Mr. Garret W. McEnerney.]

The memorial presented to the former Arbitral Court by the Archbishop and the Bishop of California (Transcript, p. 9) was accompanied by a "Brief history of the Pious Fund of the Californias," prepared by Mr. John T. Doyle, who has had professional charge of the matter since 1853. This history will be found in the Transcript, pages 17-22. Mr. Doyle also prepared, and there was likewise presented to the former Arbitral Court, a collection of the extracts necessary to sustain the citations of certain historical and other authorities referred to in the "brief history" in support of its text. (For these "extracts" in the original French, Italian, Spanish, and German, but untranslated, see the Transcript, pages 187-221. The United States has prepared an English translation of these extracts for the use of the court.)

The "brief history" was in no way impeached by Mexico at the hearing of the former arbitration, nor upon the argument thereof. Upon the contrary, it was in all its essential features confirmed by the text of the written argument of Don Manuel de Azpiroz, counsel for Mexico, and by the appendixes attached to his argument. (Transcript-English, pp. 369-462; Spanish, pp. 222-369.)

We might therefore safely rely upon the "brief history" for a full, fair, and undisputed statement of our case. But during the progress of the former arbitration the accuracy of the "brief history" was often confirmed by additional and later investigation as well as by evidence produced by Mexico.

We think that the proof obtained from these two sources will materially assist in properly presenting the facts of the case to the court.

We shall not be content, therefore, merely to refer the court to the "brief history" for the facts of the case. But we shall, in considering the propositions hereinafter made, refer the court to the particular facts which we consider appropriate to illustrate the point or enforce the argument with which we may be dealing at the moment.



The period from 1697 to 1716.

It has come to be an accepted fact that "the Pious Fund of the Californias" had its origin in 1697 in money collected from charitable

people to enable Fathers Salvatierra, Kuhn (Kino), Ugarte, and Piccolo to commence their missionery efforts in California.

While but two of these four missionaries actually labored in the Californias, nevertheless all four were engaged in the missionary enterprise.

Attached to the argument of Señor de Aspiroz will be found the permission of the viceroy, dated February 6, 1697, whereby the missionaries were granted permission "to penetrate into the provinces of California and convert the Gentiles there residing, upon the terms and conditions set forth in this instrument." (Transcript-English, pp. 401-403; Spanish, pp. 254-255.)

In his argument Señor de Azpiroz said that "the conquest of California was commenced by the Society of Jesus upon the charitable contributions collected by Fathers Salvatierra and Ugarte, at the beginning of 1697, and was thus continued for some time without becoming a burden upon the royal treasury, which was one of the conditions contained in the permission authorizing it." (Transcript-English, p. 374; Spanish, p. 226.)

He also mentions a number of contributions to the fund made as early as 1703, which aggregate $55,000. (Transcript-English, p. 374; Spanish, p. 227.)

Señor de Azpiroz also states upon the pages last cited that

Up to this time (that is, the year 1716) the means belonging to those (that is, the missions) already established had not been delivered to the society; the founders retained it in their possession and paid the annual interest, which reckoned for each of them from the date of their establishment. * * * Father Salvatierra in 1717 requested and obtained permission to receive the capitals and invest them in real estate, which he did through Father Romano, the attorney of the missions. Thi permission was indispensable, because the Society of Jesus was not competent to acquire temporalities.

Accepting this statement as true-we have no information by which we are able to affirm or deny it-it will be seen that until 1716 the principal donations for the propagation and maintenance of the Catholic religion in California had a close analogy to what is known in English and American jurisprudence as "a covenant to stand seized to the use of another."

The chief contributors to this fund, beginning with the year 1697 and running down to the year 1716, in substance covenanted to hold to the use of the missions the capital of their contributions, and of course to pay over, from time to time, the income or interest thereon.

It may be said, therefore, that the twenty years intervening between 1697 and 1717 saw the origin and early growth of the Pious Fund and the delivery of the capital thereof to the Jesuits for administration.

The period from 1717 to 1768.

The Jesuits had possession of this fund and administered it during the next fifty years; that is, from 1717 until their expulsion from Mexico in 1768, under royal decree of Charles III, dated February 27, 1767, which will be found in the Transcript-English, page 410; Spanish, page 262.

During this period of fifty years the fund grew to great proportions. Minor contributions amounted in 1731 to $120,000. (Statement and brief on behalf of the United States, p. 8.)

In 1735 there were conveyed to the missions by deed of the Marquis de Villapuente and the Marquesa de las Torres de Rada estates of great area and value. The estates comprised 450,000 acres of land and were estimated to be of the value of $408,000. The deed by which this enormous benefaction was conferred upon the missions was evidently drawn with much skill and care. It is to be found in English on pages 104 and 452 of the Transcript, and in Spanish on pages 99 and 309.

In the deed (Transcript, foot of p. 104) it is recited that the Marquesa de Rada is indebted to the Marquis de Villapuente in the sum of $204,000," whereby our rights in the premises are just and equal.” This recital shows that the grantors formally estimated the estates conveyed at the value of $408,000.

The legacies of the Duchess of Gandia to the fund amounted, it is supposed, to $120,000. The account of this benefaction is taken from Clavigero's History of California (Venice, 1789). The extract, in Italian, is to be found in the Transcript, page 198. It is also to be found in English in the translation of extracts, pages 8 and 9. The translation reads as follows:

Two things were needed to advance the missions to the northward as the missionaries desired, namely, the capital to found them and the locations to establish them in, and there was no hope of the one or the other until God moved the mind of an illustrious and most noble benefactress. This was the Duchess of Gandia, Doña María Borja, who, having heard an old servant of hers who had once been a soldier in California speak of the sterility of that region, the poverty of the Indians there, and the apostolic labors of the missionaries, thought that she could not do anything more pleasing to God than to devote her fortune to the aid of these missions. She therefore ordered in her will that there be provided out of her ready money those large annuities which she left her servants during their lives, and that all the rest of her estate should go to the missions of California, together with the capitals of the above-mentioned annuities after the death of those who enjoyed them; and that a mission, consecrated to the honor of her beloved ancestor, St. Francis Borgia, be founded in said peninsula. The sum of money acquired from this legacy by these missions amounted in 1767 to $60,000, and a like amount ought to be obtained after the death of the pensioned servants over and above some very large debts which there was hope of recovering. With such a large capital many missions could be founded in California, as in fact they would have been founded if the Jesuits had not been obliged in the above-mentioned year to abandon that peninsula. (Id., pp. 139, 140.)

Under the will of Señora Arguelles, who died before the expulsion of the Jesuits, and through power to appoint to missionary uses, exer cised by the Spanish Crown in favor of the Pious Fund of the Californias, the fund received a benefaction of $600,000." (Transcript, p. 467.)

The will of Señora Arguelles was the subject of litigation for more than twenty-five years, and the fund did not receive this benefaction until after the close of the litigation, which occurred in 1793. (Transcript, annexes 16 and 17 to the argument of Señor de Azpiroz-Spanish, pp. 315, 317; English (memorandum), pp. 456-457; see also Payno's report, Transcript, pp. 23-24.)

In speaking of the Arguelles benefaction, Mr. Doyle said in his argument before the former arbitral court (Transcript, p. 467):

On May 29, 1765, Doña Josepha Paula de Arguelles, a wealthy lady of Guadalaxara, executed her will, wherein she bequeathed $10,000 to a foundling hospital at Manila, one-fourth of the residue of her property to the Jesuit College of St. Thomas Aquinas, in Guadalaxara, and the other three-quarters to the missions in China and New Spain. She died about a year and a half thereafter, leaving an estate of about

$600,000. The Jesuits, at that time pressed by a storm of obloquy in Spain and Portugal, renounced the legacy in their favor, and the heirs of the deceased lady brought an action to have her declared intestate as to all her estate save the small legacy to the foundling hospital. The Crown intervened in the action, claiming the portion bequeathed for missions, and one Agustin de Mora in like manner put forward a claim for "sustitucion vulgar" with respect to the quarter bequeathed to the college, but on behalf of what institution or in what right I have been so far unable to discover. It will be remembered that at this time the missions, both in New Spain and the Philippines, were in the hands of the Jesuits, so that '¦if their renunciation could affect the bequests in favor of the missions in their charge, the heirs had as clear a case as to the three-fourths bequeathed to the latter as they had for the quarter bequeathed to the college. The case, after going through the lower courts, came before the "Audiencia Real" of New Spain on appeal, which tribunal on June 4, 1783, gave judgment denying Mora's claim for the "sustitucion vulgar" as to the quarter bequeathed to the college, and declared the deceased, in consequence of the renunciation of the Jesuits, intestate as to that quarter. As to the other three-quarters, however, it decided that the missions took under the will, and declared that said three-quarters, therefore, vested in the Crown, to be employed in the conversion of the infidels in this Kingdom and the Philippines (one-half in each) under the orders of the King, whom it especially concerns; and that a report be made to His Majesty to the end that he may be pleased to determine what may be his sovereign will with respect to the direction, consistency, and security of the funds so destined for the pious work of missions. This decree simply vested in the Crown a power of appointment as to what particular missions should be supported out of the bequest, subject to the sole condition that one-half should be destined to Asia and the other to America.

The Crown exercised its power of appointment by ordering one-half of the threequarters so devised to be aggregated to the Pious Fund of California, and the other half to the missionary fund of the Philippine Islands. The decree was carried by appeal before the council of the Indies, where the fiscal defensor del fondo piodoso de las Missiones de California was made respondent, and where the judgment was finally affirmed. The Crown then directed the property to be sold and invested at 5 per cent per annum in the best real estate securities, para invertir sus productos en la subsistencia y aumento de dichas missiones. The sums derived from this bequest are enumerated in the treasury report contained in Manuel Payno's work on Mexico and her financial questions, which has been heretofore referred to and put in evidence. In that report three-eighths, i. e., one-half of three-quarters of each sum as received in the treasury is credited to the Philippine Missions; other three-eighths belonged

a After the lapse of so long a time it is impossible to state with exactness the value of the Arguelles estate or the amount of the benefaction received therefrom by the Pious Fund of the Californias. At one time it was supposed that the entire estate amounted to only $600,000. In a report by the district attorney of the circuit court at Guadalajara, made for the Mexican Government on August 25, 1871, for use before the former arbitral court, it is said that the Arguelles estate amounted to more than $800,000, and that the inventories were in Spain. (Transcript, pp. 458-459.)

It is now believed that the benefaction received by the Pious Fund alone amounted to a sum variously estimated from $450,000 to $600,000. We know that there was paid to the public treasury from the Arguelles estate for the account of the Pious Fund $306,901. (Transcript, p. 24.) The Cienaga del Pastor was sold by Mexico on November 29, 1842, for $213,750, and the personal property thereon sold for $3,000 more. (Replication, p. 47.) This property came from the Arguelles estate.

The houses on Vergara street, which likewise came from the same estate, were rented for $3,500 per annum. (Transcript, pp. 512-513.) The Pious Fund owned a three-fourths interest. Three-fourths of $3,500 capitalized at 6 per cent corresponds to $43,750. The sum total of the four principal amounts above mentioned is $567,401.

It is possible that some undivided interest in the Cienage del Pastor and in the houses on Vergara street were purchased by the Pious Fund with surplus moneys on hand. (Brief of Messrs. Doye & Doyle, p. 27.) If so, the amount of the Arguelles benefaction could be ascertained with reasonable definiteness by subtracting from the $567,401 the sum paid for the acquisition of interests held by other persons and secured by the Pious Fund. In any event, however, the amount received by the Pious Fund by way of benefaction from the Arguelles estate ranged in value from $450,000 to $600,000.

This decree passed after the expulsion, indeed after the suppression of the Jesuits; hence the trust devolved of necessity on the Crown as parens patria.

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