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y da lugar el decreto del congreso de 7 de Nov. de 1835, que mando reponer las misiones á su antiguo estado; á cuyo fin se estenderá orden general al Señor Gobernador de Californias, para que por medio de las autoridades subalternas se restituya sin dilacion ni embarazos á los Padres Misioneros las posesiones y bienes que usaban bajo su administracion para la conversion de los infieles, y esa y las demas ordenes que han de espedirse en obsequio de la peticion del Reverendo Obispo se pondran en mano de S. Y. para su meior éxito, y se le dará otra orden, á fin de que el Señor Gobernador le auxilie en cuanto importe á la fundacion del obispado. Y por lo toea á los terrenos de que no esté ó hayan estado en posesion de las misiones librese oficio á la Junta Directiva del (Ramo?) á fin de que acuerde con S. Y. hasta dondo pueda su notoria piedad lo que mas facilite sus peticiones; Ꭹ en lo que no alcanzan los arbitrios del (Ramo?) le manifiesta al Gobierno para que se inicie al Poder Legislativo á se provea como haya lugar en derecho: y contestese con este decreto al Reverendo Obispo.
he is permitted by the decree of Congress of the 7th of November, 1835, which ordered that the missions be restored to their old standing, to which end a general order will be transmitted to the governor of the Californias in order that by means of the subordinate authorities the possessions and properties which they were accustomed to use under their administration for the conversion of the heathen be restored to the missionary fathers without delay or hindrance, and this and the other orders which are to be given in accordance with the petition of the reverend bishop shall be placed in your excellency's hands in order that it may be better carried out, and another order will be given you to the end that the governor may aid you as much as may be necessary in the foundation of the bishopric, and that he may give an order to the directive board of the department with respect to the lands of which the missions are not or may not have been in possession, to the end that it may agree with your highness in so far as his well-known piety may be able to further your desires, and concerning that to which the powers of the department do not extend he may make it known to the Government in order that the legislative authority may be properly invoked and answer the reverend bishop with this decree. A copy. Mexico, November 21,
and as such, having in my office and in my charge and custody a portion of the archives of the former Spanish and Mexican Territory or Department of Upper California, as also the papers of the late board of commissioners to ascertain and settle the private land claims in California, by virtue of the powers vested in me by law, do hereby certify that the seven preceding and hereunto annexed leaves, numbered from one to seven, inclusive, and written on one side only, exhibit a true, full and correct copy of the original "Exhibit No. 1, P. L., annexed to deposition of José Miguel Gomez, Dec. 29, 1854. Joseph S. Alemany. Lands of the Catholic Church (C.) filed in office Dec. 29, 1854. Geo. Fisher, Recorder in Rec. of Evid., vol. 18, p. 571 to 574," and also "Exhibit No. 2, P. L., annexed to deposition of José Miguel Gomez, Dec. 29, 1854. Joseph S. Alemany. Lands of the Catholic Church. Filed in office Dec. 29, 1854. Geo. Fisher, Recorder in Record of Evidence, vol.18, pp. 775 and 779," and now on file in this office and in my custody; that I have carefully compared the same with said originals, and that the same are a correct transcript therefrom and of the whole of such originals.
In testimony whereof I have hereunto signed my name officially and caused my seal of office to be affixed at the city of San Francisco, this twenty-fifth day of August,
W. S. GRAHAM,
Seal surveyor-general's office, California.
(Endorsed on back): Exhibit No. 5 to the deposition of John T. Doyle. Jas. T. O'Keefe, notary public. For identification: John T. Doyle.
El infrascrito oficial major del Ministerio de Relaciones Certifica: ser autentica la firma que antecede (de) del Sr. D. José Ma. Duran of ficial mayor del Ministerio de Justia.
Mexico, Octubre 8 de 1852.
J. MIGUEL ARROYO.
MINISTERIO DE LA INTERIOR. YLMO. SOR: Dada cuenta al E. S. Preside con el oficio de V. S. Y. de 7 del corriente é impuesto de todo cuanto en él expone con el objeto de dar lleno á sus graves onligaciones como obispo de Californias, se ha servido proveer de conformidad con todo lo pedido en el citado oficio y con lo que tambien solicitó en carta separada de igual fecha hta. donde el alcanzan las atribuciones de S. E. y dá lugar el decreeo del congreso gral. de 7 de Novb. de 835 que dispuso se mantubieran las misiones en el estado que tenian antes de la Ley de 17 de Agosto de 1833 á cuyo fin se libra orden por este Minist. al E. S. Gobr. de Californias para que por medio de las autoridades subalternas se restituya sin dilaciones ni embarazos á los Padres Misioneros las posesiones y bienes flue estaban bajo su administracion para la conversion de los infieles.
Y lo digo á V. S. Y. en contestacion.
Dios y Libertad, Mexico.
A pedimento del Señor Obispo de Californias, certifico por la presente quo la firma agreda á este documento es la del Ministro del Interior, de aquella época del
The undersigned, chief clerk of the department of foreign relations, certifies that the foregoing seal of Don José Maria Duran, chief clerk of the department of justice, is authentic.
Mexico, October 8, 1852.
J. MIGUEL ARROYO.
DEPARTMENT OF THE INTERIOR.
ESTEEMED SIR: Information having been given to His Excellency the President by the official letter of your highness of the 7th instant, and taking into account all that is expressed in it with a view to accomplishing your weighty obligations as bishop of the Californias, he has been pleased to concur with all that is asked in the said letter, as well as with that which was asked in a separate letter of the same date, as far as his power extends, and as he is authorized by the decree of the General Congress of the 7th of November, 1835, which ordered that the missions be continued in the state which they had before the law of the 17th of August, 1833, to which end an order has been made by this department to his excellency the governor of the Californias, so that by means of the inferior authorities he may restore without any delays or hindrances to the missionary fathers the possessions and properties which were under their administration for the conversion of the heathen. And I say this to your excellency by way of answer.
God and liberty, Mexico.
[Extract from the opinion and decision of the U. S. Land Commission in the case of Joseph S. Alemany, bishop of Monterey, . The United States; deposed to by me before James T. O'Keefe, notary public, August 20th, 1902.-John T. Doyle.]
These decisions do but recapitulate the principles laid down in all the books which discuss the subject of right to property by dedication. They are, however, more especially valuable here because they both declare the principle and make the application of it to cases of dedication arising, like that now under consideration, under Spanish and Mexican law. They show that there as well as here under our law, although the mere naked title were in the Government, the usufruct of the property might be in the church, and that the dedication of such usufruct constituted a right to the estate which would never have been violated by the former sovereign, and which neither conquest nor revolution nor cession can destroy.
Ecclesiastical property was here, as under the civil law, known as a class of property standing by itself in legal nomenclature and governed by rules not applicable to other estates, intended to protect and perpetuate its use to the benefit of the church. By the laws of Spain as well as by the canon law which was recognized throughout the Spanish dominions, ecclesiastical property was regarded as comprised in two classes: The first embraced property usually denominated sacred, and which was in a formal manner consecrated to God and destined to the purposes of divine worship as its instruments. Such are the church edifices, the cemeteries, the sacred vessels of the altar, the vestments, etc. The second class comprised property of whatever kind which was held by the church or the ministers who officiated at the altar, by any temporal title, and which was appropriated to the maintenance of divine worship or to the support of the officiating ministry. These are not, like the first class, consecrated directly to divine purposes, but since they yield a support to the clergy and the service of the temples they are considered indirectly set apart for the worship of God, and therefore of divine right. Under this class were included lands occu pied for the residence of the priest and other buildings necessary for his convenience, the gardens and grounds used for the supply of his table or of any of the sacramental purposes of the church and that
from which revenue was derived for its support. Property falling within the class of ecclesiastical can be alienated only when certain necessities arise, and then under the proceedings provided by the canon law. Such property was regarded as withdrawn from the dominion and traffic of man; in the expressive language of the civil law, it was "out of commerce." Every church was required to have upon its organization an endowment for its support, and property which it had long held for such uses was presumed, where no other title was shown, to have been acquired by donation or by gift for its endowment, and property produced by the labor of persons devoted to the service of religion became ecclesiastical property. (Ferraris Biblio, verb. alienare, I Sala Mexicano, 226. 1 Febrero, Mex., 297, Escriche verb. Bienes Ecclesiasticos.)
These concurrent proofs bring us irresistibly to the conclusion that before the treaty of Guadalupe Hidalgo these possessions were solemnly dedicated to the use of the church and the property withdrawn from commerce. Such an interest is protected by the provision of the treaty and must be held inviolable under our laws.
Exhibit No. 6 to the deposition of JOHN T. DOYLE.
J. T. O'KEEFE, Notary Public.
JOHN T. DOYLE.
AFFIDAVIT OF MOST REV. PATRICK W. RIORDAN, ARCHBISHOP OF SAN FRANCISCO, DATED SEPTEMBER 16, 1902.
KINGDOM OF HOLLAND, The Hague:
Patrick William Riordan, being first duly sworn, on oath deposes and says:
I am Patrick William Riordan, am sixty one years of age and upwards. My place of birth is Chatham, New Brunswick, but I am a citizen of the United States, naturalized by law. My occupation is that of a Roman Catholic archbishop of the diocese of San Francisco, California, in which city and State I have resided since November, 1883. I have no direct interest in the claim embodied in the above-mentioned suit; my interest being merely that of an administrator on behalf of the church, without being personal to myself, and I should not in my own individual right receive any portion of any sum which might be awarded by this court. I am not an agent or attorney or otherwise interested in the claim, except as above indicated.
I bave carefully examined the affidavit of P. E. Mulligan, secretary of the diocese of San Francisco, and am fully acquainted with its contents, and within my own knowledge the facts therein stated are correct. I am familiar with the pontifical document, a copy of which is attached to the said affidavit, and recognize it as being a correct copy of the instrument which it purports to repeat. I am furthermore familiar with the Latin in it and have compared the translation, hereto annexed and now shown to me with the original Latin, and find such translation to be accurate.