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feel assured that the members of this court will find something closely analogous to it in the system of jurisprudence with which they themselves are perhaps more familiar.

If in the course of this argument I shall frequently refer to the system of jurisprudence to which I have been accustomed, it will not be on account of any belief on my part that it is a system superior to the continental system. My resort to it will arise out of the necessity of the case, which is, that being conversant with but the one system of jurisprudence, I can argue this case only in the light of its jurisprudence.

Our case, as appears from the title, is the case of the Pious Fund of the Californias. It is the subject which you are here called upon to consider. And naturally you are prompted of the outset of the inquiry to ask, What is the Pious Fund? When did it have its origin? Who created it? What is its history? When did it come to a close? What work did it accomplish? What were its objects? Were they changed or altered by the flood of time? Because Plato has said that "Time and time alone is the maker of states," likewise is it true that time and time alone is the maker of all great historical institutions; and the Pious Fund of the Californias, far away on the Western Hemisphere, has been a great historical institution.

I shall therefore in the exposition of this case, and in consonance with what I conceive to be the logical order, first concern myself with what the Pious Fund was. The first proposition to which I shall address myself is that "the Pious Fund of the Californias has had an unbroken and generally recognized existence from 1697 down to the cession of Upper California to the United States by the treaty of Guadalupe Hidalgo, exchanged February 2, 1848."

Upon the former arbitration, there was submitted to the tribunal, in support of the memorial of the archbishop and the bishop of California a brief history, so called, of the Pious Fund of the Californias, compiled by Mr. John T. Doyle, who has had charge of this case for now fifty years, and whose advanced age and infirmities make it impossible for him to appear before this tribunal to sustain the cause, which he has so successfully sustained in the past.

The brief history of the Pious Fund will be found in the transcript which you have, pages 17 to 22. Accompanying that brief history of the Pious Fund was a production by Mr. Doyle, which we know as "Extracts from various historical works bearing upon the Pious Fund." These extracts, in the original French, Italian, Spanish, and German, but not translated, are found in the Transcript, pages 187 to 221. The United States have prepared and presented a translation of these extracts. The brief history and these extracts were submitted to the former arbitral court at the beginning of the litigation. In no essential was the correctness of either the history or the extracts disputed by Mexico; and we could safely rely upon that brief history for a full, fair, and unchallenged account of our case were it necessary for us to do so. The brief history was very largely confirmed by subsequent investigations made upon behalf of the archbishop and the bishop, the results of which were laid before the former tribunal. It was also confirmed in so many particulars by the argument of Sr. Don Manuel de Azpiroz, counsel for Mexico, and I shall have occasion in treating of this question to make frequent use of his argument for confirmation, extension, and elucidation of our theory of the case, a theory from

which we have not deviated from the beginning. And it will be found that most of the facts which I shall have occasion to call to the attention of this honorable tribunal are to be found either expressed or implied in the brief history.

Having made this preliminary statement with respect to the sources from which the proofs will be forthcoming, I shall now recur to the first proposition, which I propose to sustain and which I have already stated to your honors.

It is that the Pious Fund of the Californias has had an unbroken and generally recognized existence from 1697 down to the cession of Upper California to the United States of America by Mexico by the treaty of Guadalupe Hidalgo, of date February 2, 1848. 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 certain Jesuit priests to commence their missionary effort in the Californias. Attached to the argument of Sr. de Azpiroz will be found the permission of the viceroy, dated February 6, 1697, whereby the missionaries were granted permission (quoting the language) "to penetrate into the provinces of California and convert the gentiles there residing upon the terms and conditions set forth in this instrument." The document appears at page 401 in English, Anexo no. 1.

In his argument, Sr. de Azpiroz stated, page 374 in English and 226 in Spanish, that the conquests of California were commenced by the Society of Jesus upon the charitable contributions collected by Fathers Salvatierra and Ugarte in the beginning of 1697, and were continued for some time without becoming a burden upon the royal treasury, which was one of the conditions contained in the permission authorizing the undertaking.

Sr. Aspiroz also mentions, at page 374 in English and 227 in Spanish, a number of contributions to the fund, made as early as 1703, which aggregated fifty-five thousand dollars. He also says at the page to which I have last referred you, "up to this time" meaning the year 1716-"the means belonging to those already established"—that is, the missions-"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." And then, after recounting that one of the gentlemen who had made a contribution to the missions became bankrupt, the missions in consequence losing his donation, he goes on to say that "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. This permission was indispensable, because the Society of Jesus was not competent to acquire temporalities." Accepting this statement as true, for we have no evidence or information which would enable us to either 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 donors agreed to hold the property for the benefit of the missions. They said: "We contribute ten thousand dollars; we pay you interest upon that sum;" the interest was computed at 5 per cent and amounted to five hundred dollars annually. In the early history of this fund it was supposed, and the idea prevailed in Mexico, that five hundred dollars was a sufficient

sum for the maintenance of one mission for one year. Contributions for the purpose of founding missions were accordingly asked in the sum of ten thousand dollars each, each ten thousand dollars founding a separate mission.

I have now carried the history of the Pious Fund from 1697 to 1716, a period of twenty years. The period saw the origin of the fund, saw the first work of the missionaries, and saw the chief event with which I close the period, namely, the delivery of the capital, which theretofore had been held by the contributors, into the possession of the

Jesuits for administration.

The next period with which I propse to deal covers fifty years, starting with 1717, when the Jesuits were permitted by law to assume the corporal possession of the property, and ending with 1768, the year in which they were expelled from Mexico by virtue of a royal decree passed in the preceding year. During that period the Jesuits had possession of the fund and administered it. A copy of the royal decree of February 27, 1767, of Charles III, banishing the Society of Jesus and taking possession of their temporalities will be found in the transcript at page 410. During these fifty years, from 1717 to 1768, the fund grew for that age to enormous proportions. We find it historically stated in a work devoted to the history of California that the minor contributions amounted in 1731 to one hundred and twentythousand dollars. In 1735 came the Villapuente benefaction, evidenced by a conveyance undoubtedly drawn by some one versed in the law of Mexico. By examining that deed, you will notice that the conveyance is to the missions. The language is "To have and to hold to the said missions." Whether the object or function of that conveyance was to pass the title to the missions or to the Society of Jesus, my unfamiliarity with the Mexican system of jurisprudence will not allow me to say; but it is evident to demonstration that the benefaction was intended for the benefit and behoof of these missions, subject, if you please, to the exercise of a power which I shall have occasion hereafter to discuss. This benefaction given by the Marquis of Villapuente and his cousin or wife, the Marquesa de la Torres de Rada, conveyed to the missions properties of great area and value. The area was four hundred and fifty thousand acres, and the estimated value of the donation was four hundred and eight thousand dollars. The value as estimated at that date is derived from a recital in the deed, at the foot of page 104 of the transcript, which is to this effect:

And, whereas, the said Marquis of Villapuente, my cousin, is my only creditor, he having supplied me out of his own means with over two hundred and four thousand dollars, which he has furnished me, the receipt whereof is hereby acknowledged, and which is well known whereby our rights in the premises are just and equal

In other words, the Marquis of Villapuente and the Marquesa de la Torres de Rada, undertaking to donate an estate to the missions owned by the Marchioness de Rada, but subject to a lien in favor of the Marquis de Villapuente, recited and engaged between themselves that her right in the property, after the debt was paid, was equal to the debt; consequently, according to the values which they put upon the transaction, now one hundred and sixty-five years ago, his donation was two hundred and four thousand dollars, and her donation was two hundred and four thousand dollars. The deed is found in English in two places in the transcript, and it is in Spanish in two places. In English it is found at pages 104 and 452 and in Spanish at pages 99 and 309. L'audience est levée à midi et renvoyée à 2 h. 1/2 de l'après-midi.

17 septembre 1902 (après-midi).

A la reprise de la séance à 24 heures M. McEnerney continue son discours jusqu'à 44 heures.

Mr. RALSTON. With the permission of Mr. McEnerney, and to prevent any misunderstanding, I simply want to announce that in view of the terms of the order passed by the court and read this morning, to which we have given careful consideration, that I shall follow Mr. McEnerney on Monday, with your permission, in the presentation of the case of the United States, and while I have not, unfortunately, had an opportunity to consult with Monsieur le Chevalier Descamps, I anticipate that he will close the opening arguments for the United States. In reply to the argument from Mexico, which will thereafter be presented, we shall have the pleasure of the assistance of Mr. Penfield, the solicitor of the Department of State.

Mr. McENERNEY. Mr. President and honorable arbitrators: At the time the tribunal rose for midday intermission we had under discussion the period of the Pious Fund, which I have arbitrarily assumed to have begun with 1717 and to have continued for fifty-one years that is, to the expulsion of the Jesuits under the royal decree of Charles III of Spain. We had pointed out that to 1731 the minor donations to this fund aggregated $120,000, and that in 1735 a donation was made estimated by the grantors between themselves to have been worth $408,000. The next donation to which I shall call your attention is that made by the Duchess of Gandia, which amounted, according to the historical authority which we have for it, to about $120,000. You will realize that it was impossible upon the former arbitration to account, item by item and donation by donation, for this great benefaction extending over a period of one hundred years. When we came to make our claim we made it upon the condition of the fund as it existed in 1842. But it was necessary for us, in view of its magnitude, to trace the history of this fund, to show that its proportions, as we claimed them, were no exaggeration; and therefore we were entitled to refer, and we did refer, to the history of the early Californias to show that pious and wealthy people had contributed to it benefactions of great value and extent, approximating the proportions of the fund as we claim them to have existed in 1842.

I have already shown you benefactions amounting to half a million dollars more than $520,000. The historical reference by which it is shown that the Duchess of Gandia contributed to this fund $120,000 is one of the extracts to be found in the original at the foot of page 198 of the transcript. It is taken from the "Story of California,' printed in Venice in 1789. I desire, with the permission of your honors, to read that extract from the translation on page 8 of the translation of extracts furnished to you this morning:

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 Maria 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

FR 1902, PT 3—35

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 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 sixty thousand dollars, 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.

I now pass to what is known as the Arguelles benefaction, under which, from Señora Arguelles, who died before the expulsion of the Jesuits, the fund received what is estimated to be $600,000. This benefaction passed to the missions of the Californias under the following circumstances. Señora Arguelles bequeathed one-quarter of her estate to a college in Guadalajara owned by the Jesuits; three-quarters of her estate she devised in trust to the missions. The Jesuits renounced the benefaction and thereupon an officer, representing the State, and claiming that the benefaction should not lapse either as to the quarter or as to the three-quarters, intervened on behalf of the Government. The case continued in litigation for more than twentyfive years; and it was finally decided that the gift of the one-quarter lapsed, I presume upon the theory that the devise of the one-quarter was a gift to the Jesuits personal in character, given to their college as a private institution. But it was decided as to the other threequarters, that it did not fail; because, presumably, it was a public charity, and it is the law the world over, that public charities do not fail for want of a trustee; the declination of the trustee to whom property is given or devised for charitable uses can not cause the trust to lapse, nor does he control its destinies nor defeat its execution. In the court of last resort in Spain it was decided as to the three-quarters of the estate, that one-half of it should go to the Philippine missions in accordance with Señora Aguellas' will, and that the other half should go in accordance with an appointment which His Majesty the King of Spain should thereafter make. His majesty appointed that the benefaction should go to the Pious Fund of the Californias. This appointment was final and irrevocable; no attempt has ever been made to retract or alter it.

I wish the members of this court to keep in mind the fact just stated, that half of the Arguelles benefaction went to the Philippine missions. It is connected with an important event in the history of Spain and Mexico, upon which we rely as a precedent to establish the rights we are contending for before this tribunal. The Arguelles estate was thereafterdistributed: $10,000 as a legacy to the children of Carro; one-fourth of the estate to the heirs at law, because as to the one-fourth subject to the $10,000 it was decided that the declination of the Jesuits defeated the gift; the other three-quarters in equal shares to the Philippine missions and to such other missions as the king should designate (the California missions being subsequently designated by him).

I invite the attention of the members of this tribunal, in connection with this Arguelles benefaction, to a report in the record at page 22, which has been called throughout the litigation "Manuel Payno's report." It commences on the middle of page 22 and continues to the top of page 36. Mr. Payno's deposition follows, and then the certificate of the consul of the United States to Mexico at the top of page 37.

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