to apportion it, and do not see any fact calling for a different division. -If we look at the population of each territory at the time of the cession, we discover no great disparity. Besides, I do not conceive that because a charitable fund is to be devoted to missionary work in two districts of country, that this gives an interest to each in proportion to population. On the contrary, when it became necessary to divide the bequest made by Doña Juefa Paula de Argüelles to the missions in China and New Spain, the courts divided it equally between the Philippine Islands and New Spain, the population being ignored.

I take the report of Pedro Ramirez, of February 28, 1842, upon the condition of the fund made to Ignacio de Cubas (Exhibit A to the deposition of José Maria de Romo Jesus) as a sufficiently accurate and satisfactory account.

According to this, the Government at that date owed the fund the sum of

It will be seen, that I take no account of the Estate of Cienega del Pastor, because it was attached and held by Señor Jauregui for a large debt, and there is no evidence in this record, that the Government ever obtained the property, or derived any benefit from it.

By the decree of October 24, 1842, the public treasury acknowledged -an indebtedness to the "Pious Fund of the Californias," of six per cent per annum, on the total proceeds of the sales, and pledged the revenues from the tobacco for the payment of the income. This pledge was never kept, but the revenue from the tobacco was otherwise appropriated by the Government. Nevertheless, there is an acknowl

edged indebtedness of six per cent on the capital of the fund payable annually. This amounts to the sum of $86,161.98 and the first instalment was due October 24, 1848, for which, according to my views, claimants can have any award here, and the last instalment fell due October 24, 1868, because the next falling due after February, 1869, can not be awarded by this commission.

This gives for twenty-one years, a grand total of $1,809,401.58, one moiety of which belongs to claimants to be used in aid of the missionary labors of the Church in Upper California, for the conversion of the heathen.

The beneficiaries of this moiety of the fund are in Upper California, citizens of the United States by the treaty of cession. They can not receive the benefit of the fund according to the will of the founders, except through the ministry of the Roman Catholic Church in Upper California, empowered by the Church at Rome to preach, convert and baptize the heathen of that land. But as the Roman Catholic ecclesiastical corporations sole and the beneficiaries of the fund are there, and all [are] citizens of the United States by the treaty of cession and the law of the place, and as the United States appears before this commission claiming redress for and on behalf of "the Roman Catholic Church of the State of California and of its clergy, laity and all persons actually or potentially within its fold and entitled to its ministration, and all others beneficially interested in the trust estate," we have before us undoubtedly all persons interested in the fund; and as the award is made to the United States, that Power will be responsible for the proper disbursement of the sum received; and its courts of justice will not ask our leave to settle and adjust the rights of all parties claiming, or to claim the same.

I see therefore no difficulty in the way of awarding to the United States whatever sum may be justly due from the Government of Mexico since the date of the treaty of cession. Certainly justice and equity call loudly on the Mexican Government to pay according to its pledged faith.

The annual income of the "Pious Fund of the Californias," to the Ministers responsible for its faithful disbursement in the Californias, for the conversion of their inhabitants, according to the will of the pious founders. The fund does not belong to the Government of Mexico, not a dollar of it. It is private property sacredly devoted, by the piety of a past age, to Christian charity, and fortified against political spoliation by all the sanctions of religion and all the obligations of good faith.

But the magnitude of the labors of this commission will not allow me time to go into the further discussion of this interesting and important case. I must content myself with the declaration of my purpose to respect the wishes of the pious people of the olden times, with reference to their own property, devoted according to the laws then in force, to objects of their own selection.

It is my decision, that the Government of Mexico pay to that of the United States, in the gold coin of the latter, with interest at the rate of six per cent per annum, from the 24th of October, 1868, to the close of the labors of this commission, for and on behalf of the claimants, the sum of nine hundred and four thousand and seven hundred dollars, and seventy-nine cents ($904,700.79) and $100 for printing and proofs.

Opinion of Mr. Zamacona, in the original Pious Fund Case before the United States and Mexican Claims Commission of 1868.1 The commissioners having differed in opinion in this case, Mr. Commissioner Zamacona delivered the following opinion:

The question raised by these claimants has a certain aspect of historical investigation, for it is impossible that persons versed in the history of the conquest of Mexico who know the system and means employed by the Government of Spain to carry that great undertaking to its completion, should be unacquainted with the national and strictly Mexican character of the resources which the Bishops of Upper California claim as if they were an appendage of that province, transmissible by virtue of the treaty by which it was ceded to the United States. At times an incorrect denomination is the cause of transcendental errors. That is the case with the phrase employed to designate the elements with which the Spaniards carried out the conquest of certain territories situated on the northwest of Mexico. With an impropriety, of which the spirit of the epoch is the explanation, those resources were called "The Pious Fund of California" (el fondo piadoso de California) and this must have been one of the principal causes of the errors which the present claim involves, and which consists [sic] in the claimants, believing that the constituent elements of that fund, so-called, belongs, notwithstanding its national character, its many transformations and its dilution, so to say, in the treasury of Mexico, to the Catholic Church of Upper California.

United States and Mexican Claims Commission, Opinions (MS. Dep't of State), vol. v, p. 90.

The conquest of that country and of the Peninsula which is still retained by Mexico under the name of Lower California was undertaken by the Spanish Government with the same means by which the extension of its conquest in America was accomplished. The first acts of occupation and possession performed by the delegates of the monarch used to have the form of material acts supported by arms; but at a later time, there irradiated from that nucleus in which the Spanish flag had been planted, expeditions, apparently of a religious character, which were nothing more than a complement of conquest of little cost in money or blood. It passes for a proverb among those who have profitably studied the conquest of New Spain, that the history of that important event can only be found in the chronicles of the convents, and mention is made even of the various religious orders which respectively and successively conquered the provinces of Mexico. To the end of carrying the authority of the Spanish Government to the northwestern end of the country, the same method was applied, with this difference, that a more marked and prominent part was assigned to the priests charged with making the reduction (la reducción). The use of this term suggests an observation which ought not to be omitted, namely, that the aspect, in a certain way political, of the labors of the missionaries in Mexico is reflected upon even the locutions used to express their work, and that the tendency of this work was not less to conquer souls for the Catholic faith than subjects for the monarchs of Spain.

The Jesuits took this undertaking under their charge in regard to the Californias; their order had acquired a great development in the Spanish Colonies of America and represented not only a great and religious power, but a great monetary power. At a certain time, corporations of that kind, not only in Mexico, but even in Spain, united to the functions of agents of the political power those of institutions of credit, and they were soon to distribute the capital they had accumulated, thanks to their great influence over the consciences, not only in the sphere of industry but in that of Government.

The Government of Spain had little means when the conquest of the Californias was planned. Some attempts had been made in that direction by means of naval expeditions, but without result, and the viceroys of New Spain decided to avail themselves of the opportunity offered them by the Jesuits who were willing to take upon themselves continuation of the work and the raising of the means required by it. The acceptance of this offer is the starting point of the missions of

Lower California and the explanatory key with which their true character can be disclosed.

Here we meet with another term which may mislead such as are only acquainted with what is generally designated with the name of missions, and especially the missions organized in this country by some religious or benevolent societies. Reflecting upon the same history which the claimants give us of the missions of California, it must be recognized that they were institutions of an anomalous and equivocal character, and that in them civil, military and political aspect predominated over the religious. Further on we shall have occasion to demonstrate this; for the moment it suffices to say that the solicitude of the Jesuits and their arrangements calculated to extend the influence and labors of their order to California were all with the Government of Mexico, that they implied the mission of making a conquest for the Spanish metropolis, and that the acts and practical means being required to conform to this point of departure, the said Jesuits presented themselves in Lower California less as apostles than as delegates of the Government, invested with political and military powers and with such prerogatives in the matter of administration and war as were far from complying with the simple character of missionaries.

In furtherance of that arrangement the Jesuits obtained important donations for the enterprise which the Government of the Viceroy had intrusted to them, and with the consent of the latter they administered and invested the means thus obtained.

That was the condition of things until the Society of Jesus was expulsed from the Spanish dominions and at a later time extinguished, there being marked, as we shall see further on, during all this initial period of the missions, two circumstances which are very important for the decision of this case.

1st. The military, political and administrative functions performed by the missionaries.

2d. Their dependency on the Spanish Government and of its delegates sent to Mexico and known by the name of viceroys.

The Jesuits once expulsed and extinguished and their temporal concerns occupied, everything relating to the missions of California came into the hands of the Government, not only by virtue of its rights but because the circumstances did not permit to act otherwise.

The Government was the only one who could substitute those priests in the administration of the institutions which had been founded in California and of the means intended for their maintenance. The