simple omission can not properly be said to be an injury. How, therefore, can the omission to pay over an unascertained quantity to a person or persons equally undetermined be considered such?

§ 11. And if the difference existing between the obligations of private persons, whose individuality never changes, and those of governments, which change form, is taken into consideration, then such charge would have still less foundation.

§ 12. In order that this might be so, it would be necessary that at the time Upper California was separated from Mexico the Government of that Republic was actually paying to the Catholic Church of that part of the country a sum specially designed for its use, and that there was no reason whatever for doubting that it ought to continue paying said sum after the separation; and even in that case it could be said only with excessive hardship that it was bound to make such payment without anyone soliciting it, because that this might be so, it would have to commence by inquiring who the person was, legally entitled to receive it, and even to incur the expense necessary for the remission of the sum of which it might consist.

$13. But since for six years before Upper California ceased to belong to Mexico the fund of the missions had ceased to exist in fact and no sum was paid to anyone on account of it; since there was no law which obliged the Government of Mexico to pay any determined or undetermined sum to the bishops of the Californias, and much less any provision or agreement to set aside a determined portion for Upper California, and since, finally, such bishop did not exist, nor did any person assert the alleged 1ight of that church, it is more than a hardship-it is a veritable injustice to charge the Mexican Government with the violation of rights. Certainly no government in the world can be charged with violation of rights under such circumstances.

§14. It has been said on the part of the claimants that the true scope of the convention of July 4, 1868, was to submit to the commission "all the claims presented, etc., for damages, either to their persons or rights of property, sustained since the date of the treaty of GuadalupeHidalgo, proceeding from acts or wrongful omissions of the authorities, etc.

15. But what is here contended would add in a very arbitrary manner to the text of the convention, which does not speak of damages, but of injuries, not of omissions, but only of acts (injuries made, etc.). Everybody knows, and the claimants themselves have said in some of their arguments, that there can be damage without injury, "damnum absque injuria," and this commission has decided in a great number of cases that although the interested parties had suffered damages or could have rights against the government sued, no injury had been done them, and their complaints could not, therefore, in accordance with the spirit of the convention, be considered.

§ 16. With respect to omissions, even in the text improvised by the claimants it is necessary, in order that they may be a proper subject for the consideration of this tribunal, that they constitute a notorious wrong that is, that they imply the violation of an unquestionable right or the failure to comply with a clear and well-defined obligation, or that they consist in positive acts, as would have been in case a petition duly presented requesting the acknowledgment of such rights herein considered had been denied.

§ 17. All that there is in the evidence upon this point is the state

ment made by one of the claimants, the archbishop of San Francisco, to the effect that "when he was in Mexico in 1852 he asked the Gorernment to turn over to him the amounts or property of the Pious Fund, and having received no reply he repeated his request until he was officially notified that the Government could not accede to it;" that is, to a vague petition concerning sums of money and property.

§ 18. Without questioning the truth of said statement, the undersigned can not do less than designate the action of Mr. Alemany as informal, because neither the demand of which there is mention nor the reply made to it seems to have been in writing, as has been observed by the umpire, and because in July, 1859, it was told the secretary of state, on behalf of the claimants, that taking into consideration the difficulties in which the Government of Mexico found itself, there had been a delay in making the application to it for payment (No. "G" should be "C"); which proves that they did not consider the petition before referred to as formal, if, in effect, any was made by the person so affirming, and who, no matter how respectable he may be, is undoubtedly interested in the claim.

§ 19. It has also been alleged that even if some claims have not been covered by the convention they ought to be considered and decided by this tribunal, because otherwise it would result that the Government of Mexico would remain absolutely discharged of all the claims of whatever class, while satisfaction could only be had of those proceeding from injuries to person or property.

§ 20. This observation refers to the article by which the two Governments agreed to consider the result of the proceedings of this commission as a complete, perfect, and final settlement of every claim presented or not presented proceeding out of transactions of a date prior to the date of the exchange of ratifications.

§ 21. But this does not mean that every claim should be specially allowed or disallowed, since in the last part of article 3 it was provided that the commissioners or in case of disagreement, the umpire should decide whether a claim had been duly made, presented, and submitted to the commission.

§ 22. In the exercise of this power the commissioners and the umpire have omitted to consider several claims, not because they denied to the interested parties the rights which they sought to enforce, but leaving the rights which they had intact, and simply declaring that in such cases there was no injury to repair.

§ 23. Thus, for example, in claims arising out of forced loans which were not considered by the present umpire because such loans imposed upon American citizens in Mexico did not constitute an injury, surely the right which they might have had to be repaid the value of such loans has not been denied to the claimants.

§ 24. In the decision rendered in the case of Treadwell & Co., No. 149, the umpire has thus expressed himself:

The umpire can not doubt that, if well founded, the 'claims will be finally paid by the Mexican Government, to which, the claimants state in their memorial, they have never been finally presented.

§ 25. The same could have been declared in this case, and the undersigned asks that it be so declared, without depriving the claimants of the right, which they may have, to a share of the Pious Fund of the Missions.

II.

§ 26. But if the umpire should find in this case any injury to be repaired, done by the Government of Mexico since February 2 or May 30, 1848, or shall he believe that the division requested by the claimants ought to be made by this commission, he ought very carefully to investigate whether on the above-mentioned dates the Government of Mexico was under any obligation to the Catholic Church of Upper California.

$27. The last laws relative to said fund were, that of February 8, 1842, that of October 24, of the same year, and that of April 3, 1845. By the first of these the care and administration of the fund were turned over to the Government, as they had been until the close of 1836, when they were intrusted to the bishop of the Californias by the second; the sale of the productive properties of the fund was ordered so as to avoid the expense of administration, and by the third the properties which had not been sold were ordered to be returned to said bishop, and the right to dispose of those sold was reserved to Congress.

§ 28. With respect to the decree of October 24, 1842, the following points should be examined:

A. What were the properties belonging to the Pious Fund of the Californias ordered sold by its second article besides the estates?

B. What was the price assigned to the estates and other properties which were to be sold?

C. What was the total amount upon which the obligation to pay interest at 6 per cent was imposed upon the public treasury?

A and B.

§ 29. The properties of the fund consisted of the following: Country real estate.

Money invested on mortgages on country real estate.

66

A censo enfiteútico" upon city real estate.

Debts of private parties in favor of the fund.

Debts against the national treasury.

$30. The objects for which the decree herein referred to was made. were undoubtedly two: First, that the fund should produce an income without deduction on account of expense for administration or any other; and, second, to enable the Government to obtain advantages with the proceeds of the sale of such properties.

§ 31. The first of these objects is textually set forth in the preamble of the decree; the second is so obvious that no one can place it in doubt.

$32. When by virtue of the decree of February 8, 1842, General Valencia, who had been appointed administrator of the properties of the fund, demanded the titles of the property, Señor Ramirez, who ther administered them as attorney in fact of the bishop of the Californias, said to him under date of March 4 of that year:

I hope that you will tell me, for the sake of the fund, what means you have adopted to secure your contracts, when you yourself did not have any, and on account of which a great loss will result to it, because I must in any event obtain the money necessary for the sacred purpose to which the Government applies it, and

which was the will of the testator, if interpreted with the prudence and patriotism necessitated by the actual condition of affairs. (No. 15, Exhibit “A,” pp. 19 and 20. ) It seems that the purpose to which this letter referred was the defense of the integrity of the national territory.

§ 33. Therefore, if the Government, in order to obtain the resources which it needed, realized upon the saleable properties of the fund less than their real value, it does not seem just to burden the fund with the consequent loss; but neither would it be just to hold the Government responsible for properties from which it was not able to derive any benefit because they had no cash value.

$34. Even the American commissioner has recognized this principle of justice and equity in his opinion in favor of the claimants.

"It will be seen," says he, "that I take no account of the estate of Ciénega del Pastor because it was attached and held by Sr. Jauregui, and there is no evidence in this record that the Government ever obtained the property or derived any profit from it."

$35. Thus, therefore, the decree of October 24 ought to be interpreted in such a manner that by it the Pious Fund should not suffer any loss nor that the Mexican treasury should feel any burden. The properties of that fund ought to be worth the same after the decree as they were before it no more nor less.

$36. In order that this might be so, the same decree adopted the most just method which could be adopted to determine the cash value of these properties.

§ 37. Considering that 6 per cent would have to be paid upon such value, this value could not be other than what the properties represented by their proceeds capitalized at 6 per cent. For example, the estates of Santa Lugarda and its annexes were mortgaged to the fund for $42,000 at 5 per cent per annum. If the Government should have been obliged to pay 6 per cent upon the same capital, there would have resulted a gain to the fund and an unjust loss to the treasury of $420

per annum.

$ 38. But in conformity with the decree it could not be so, because the two following operations would have to take place: First, $42,000 at 5 per cent produce $2,100 annually; second, $2,100 interest at 6 per cent represents $35,000. Result: The public treasury would acknowledge an indebtedness in favor of the fund of $35,000 at 6 per cent, in lieu of $42,000 at 5 per cent, the fund receiving, therefore, the same amount as before, no more, no less."

$39. For the computation of values upon this basis, established by this decree, there is a necessary condition that the properties to which it refers should have an annual income, because the only thing which the Government promised to do was to see to it that these proceed, were not less than those which the fund received previous to the decrees and not to give it those which it did not have.

§ 40. The advantage for the fund was to consist in not incurring any expense of administration, and for the Government in making use of the proceeds of the sale for its momentary necessities.

a In the brief history of the fund, presented by the claimants on page 5, the following is said: "On October 24 another decree was issued by which it was ordered that the properties belonging to said fund should be sold for the sum which their income represents (capitalized at the rate of 6 per cent); that the products of this sale be incorporated into the public treasury, and that an obligation to pay an interest of 6 per cent upon the above-mentioned capital be recognized on the part of the Government."

C.

$41. Therefore, it follows that in order to collect the interest accrued by virtue of the decree of October, 1842, the claimants ought to have proved, not what the nominal value of the properties of the fund was, but what was the total produced by the sales made in conformity with said decree.

§ 42. When its 3rd article pledged the revenue from tobacco “for the payment of the interest corresponding to the capital of the Pious Fund of the Californias," it undoubtedly referred to the capital which would bring in an income in accordance with said decree, that is to say, to the capital produced from the sales of the properties which at the time produced annual incomes, estimating its value by that which corresponds to said products capitalized at 6 per cent.

§ 43. To interpret that article without relation to the preceding one is contrary to the principles of equity, which does not permit one party to better his condition to the detriment of the other. "Natura non partitur aliquem locupletio rem fieri cum alterius jactura." (L. 206, de Reg. jus.)

§ 44. To condemn the Government of Mexico to pay interest on nominal values and even upon doubtful assets, which had no value and which produced nothing at the time in question, is clearly to make the fund of the missions richer than it then was at an enormous cost to said Government.

§45. A court of equity, such as is this commission, can not proceed against the fundamental principle of natural equity. A learned judge can not interpret a part of an instrument without reference to its object and to the fundamental idea of its text.

§ 46. The first steps toward ascertaining the obligations contracted by the Government of Mexico in virtue of the aforesaid decree must be, therefore, to determine the cash value of the properties belonging to the fund of the missions of the Californias by the amount represented by their annual proceeds capitalized at 6 per cent.

$47. In accordance with the detailed inventory delivered by Señor Ramirez, attorney for the bishop of Californias, to the administrator of the fund on the 28th of February, 1842, in consequence of the decree of the 8th of the same month and year (eight months before the 24th of October), the following settlement may be proposed:

The fund received in this manner by the disposition made of the houses Nos. 11 and 12 Vergara street and of an outbuilding in the Betlemitas alley, $2,625 annually, which represents, at 6 per cent, $43,750

$2,625.00

CITY PROPERTIES.

$43, 750.00

The first mentioned in the inventory is the estate Ciénaga del Pastor, whose value is not to be taken into account for the reason set forth in the opinion of the American Commission. (§ 34.)

The estate San Pedro de Ybarra was rented for $2,000 annually, which represents, at 6 per cent, a capital of $33,3331

$2,000.00 $33,333.331

« This undoubtedly should be country properties.—Translator.