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." It was confided to the

@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.")

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." 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 became known by the name of "The Pious Fund of the Californias.” It originated in the year 1697, 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 convento 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 Peña, Marchioness de las Torres de Rada, by deed of gift inter riros 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," and still another of great magnitude, from Doña Josefa 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 Tomás 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. Î, 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 inventory 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

"Storia della California, Opera póstuma del Nob. Sig. Abate D. Francesco Saverio Clavigero. 2 vols. Venice, 1789. Vol. II. pp. 139–140.