We therefore submit that neither Mexico nor Spain ever claimed the right to divert or attempted the diversion of the Pious Fund. It is hence unnecessary for us to debate the purely academic point as to whether either Government ever possessed the right suggested.

This carries me to the sixth question with which I propose to deal,

and that is:

6. That the rights of the beneficiaries of the Pious Fund of the Californias which are asserted here arise out of the promise made by Mexico on October 24, 1842, and the duty of Mexico to those beneficiaries as a trustee of the fund.

When Mexico made her decree of October 24, 1842, she promised to pay 6 per cent upon the capital of the Pious Fund for the uses and purposes to which the fund had been dedicated by the donors. This engagement was no mere gratuity. There was not only a sufficient, but an ample consideration for the promise. She incorporated the entire Pious Fund into her national treasury. The least she could do in honor was to promise to pay interest upon the fund. Mexico not only agreed to pay the interest, but she agreed to pay it to the religious objects specified and intended by the donors of the fund, which, as we have already pointed out, were the conversion of the natives of the Californias, Upper and Lower, and the establishment, maintenance, and extension of the Catholic Church, its religion and worship, in that country.

At the time she made the engagement Mexico sustained the relation of a trustee to the beneficiaries and to the fund. This, as we have pointed out, is conceded in her answer to our memorial. Her promise, therefore, is to be read in the light of her duty as trustee. The promise which Mexico made was to pay an annuity in perpetuity. Her promise was also to pay it to certain religious purposes to be accomplished in Upper California and certain religious purposes to be accomplished in Lower California. Upon the cession of Upper California to the United States by Mexico, for a consideration of $18,250,000, the obligation to pay the equitable portion due for application to the religious purposes to be accomplished in Upper California was not canceled. It survived for the benefit and behoof of the inhabitants and citizens of the ceded territory, whose American citizenship, as it was to be thenceforth, entitled them to demand performance through the interposition of the United States. It is this demand which they made with success under the convention of 1868, and which they are now endeavouring to make with the same success before this court.

The seventh point is that:

7. All of the events preceding October 24, 1842, are in the nature of matters of inducement, as that term is used in English and American jurisprudence. The obligation of October 24, 1842, is to be read in the light of these events, in order that it may be properly interpreted. But Mexico's obligation arises out of its legislative decree of October 24, 1842, and its precedent trusteeship.

In the law of pleading, as it is established in American and English jurisprudence, we have what are known as "matters of inducement." These are matters appropriately to be stated in a pleading, in order that the court to which the pleading is submitted may the more intelligently appreciate the force of the particular transaction out of which arises the cause of action or the matter of defence. In this case the

cause of action upon which our claim is made is the engagement in the light of the historical circumstances which preceded it. These circumstances enable us to appreciate the exact legal and moral obligation which Mexico assumed by the act of October 24, 1842, whereby i she incorporated all the property of the Pious Fund into the Mexican treasury, and agreed to pay 6 per cent thereon annually and in perpetuity.

The next point to which I desire to call the attention of the tribunal is that

8. It was the duty of Mexico during the period when it managed the "Pious Fund of the Californias" prior to the appointment of the bishop of the Californias to pay over the income thereof to the missionaries in charge of the missions, in furtherance of the purpose of the donors.

I support this proposition with the argument that as the missionaries alone were in the possession of the spiritual faculties having relation to the missions, as the spiritual faculties of the missions were their very life and very existence, as they had no other, and as that spiritual life, its foundation, and support were the objects which appealed to the donors, it follows as a consequence that the only persons who, from the very necessity of the case and the very circumstances of the missions, could administer these funds to the pious uses specified by the 'donors were the missionaries themselves. Hence out of the very necessity of the case they were entitled to receive the funds, and as it was intended by the donors to make their gifts effectual, it must be conclusively presumed that they intended the funds to go to those persons who alone were capable of administering them for the purposes which the donors had in mind.

The next proposition is that

9. This duty was solemnly recognized by Mexico and was never repudiated.

It was solemnly recognized by Mexico in 1832, when she provided in the act of May 25th for the leasing of the rural properties belonging to the Pious Fund. Mark the emphasis which I place upon the word "belonging" to the Pious Fund. I so emphasize the word because it is stated in the act of May 25, 1832, that these properties "belong to the Pious Fund." And it is provided that the moneys shall be paid into the treasury "to be solely and exclusively destined for the missions of the Californias."

And, again, there is the provision that the board shall "name to the Government the amounts which may be remitted to each one of the Californias, in accordance with their respective expenses and available funds."

There is no other provision of any kind in that act of 1832 which contemplates the disbursement of any of these moneys except to these Californian missions.

I say, therefore, as it is provided that these moneys shall be remitted to the missions, and as it is said in the act that the moneys are "solely and exclusively destined" for these missions, and as it is also said therein that the properties belong to the Pious Fund of the Californias, that we have made good, so far as the act of 1832 is concerned, the proposition which we now have under consideration-namely, that the duty of remitting to the missionaries prior to the appointment of the bishopric was recognized by Mexico.

Then, again, its duty to remit to the bishops was recognized by the act of September 19, 1836-the act in relation to the creation of a bishopric by which Mexico solicited the Holy See to create a bishopric in the Californias and pledged for its support six thousand dollars per annum. In this act it is provided that all of the properties of the Pious Fund should be passed to the possession of the bishop for administration in conformity to the will of the donors or similar objects.

Again, after the passage of the act of February 8, 1842, which affirms the trust character of the properties, General Santa Anna, President of the Mexican Republic, appointed Don Gabriel Valencia, chief of staff, to be the general administrator of the funds. This you will find stated at page 505 of the Transcript.

In a letter from the minister of justice to Don Pedro Ramirez, dated February 21, 1842, it is stated that General Gabriel Valencia is appointed general administrator of said goods upon the same terms and with the same powers as were conferred upon the board under the act of May 25, 1832. (Transcript, p. 505.)

And what were those powers? They were to conserve the properties and to remit to the missions of the Californias under the act, which said that the funds were solely and exclusively destined therefor. In further recognition of Mexico's duty to remit to the missions is the order of the President of the Mexican Republic of April 3, 1844, to which I had the honor to call your attention on Wednesday, in which the custom-house of Guaymas is directed to pay $8,000 to the bishop of the Californias on account of the income from the Pious Fund, which had been incorporated into the national treasury. My next proposition is that:

10. From the consecration of Francisco Garcia Diego as first bishop of the Californias, Upper and Lower, which occurred October 4th, 1840, the proper persons to receive the income or interest upon the Pious Fund have been the bishop of the Californias and his successors in title and interest.

As I have heretofore had occasion to call to your attention, Bishop Diego was appointed April 27, 1840. He was consecrated (as you will find by turning to page 91 of the Transcript) on October 4, 1840. He died April 30, 1846. His successor, Joseph Sadoc Alemany, was appointed May 1, 1850; consecrated June 30, 1850, and arrived in California in 1850. (See Transcript, pages 182, 183, and 12.)

From the death of Bishop Diego until the appointment of Bishop Alemany the bishopric was administered by the vicar-general, Father Rubio (whose deposition was submitted in the former arbitral court and is shown in this transcript), who exercised that post with the faculties of a bishop.

We have pointed out to you that from the very necessity of the case, prior to the appointment of the bishop, it was necessary to forward the funds for application to the pious uses for which they were designed directly to the missionaries. After the appointment of the bishop it was necessary in the nature of things, as he was in exclusive charge of the spiritualities and temporalities of the church, that he should apply them. It was, from the very nature and constitution of the Roman Catholic Church, its maintenance and extension, impossible for it to be applied by any other persons.

Upon this point I desire to call to the attention of the tribunal the argument made by Mr. Doyle (commencing at the top of page 86 of

the Transcript, point II, and continuing to the foot of page 93, un end of point III) in which he discusses this question.

From this discussion I shall make a short extract:

This brings us to the consideration of the next question suggested by the counsel for Mexico, viz: Whether the bishops of the Church of California are the proper persons to demand, before the commission, the performance of this duty. This I think presents no serious difficulty. The church is a mystical body; it consists of the bishops and clergy and the body of the laity under their government and in communion with the See of Rome. As a body it is deemed a corporation in all countries having an established religion. Throughout the United States the absolute severance of church and state has led to the corollary of ignoring the corporate existence of any particular denomination as such, because the state having no official communication with it can not take notice of its doctrines, discipline, or organization. But statutes in all the States have, I believe, without exception, provided for the formation of religious corporations, representing the body of believers, usually in such form as each particular denomination may desire

Mr. Doyle continues at the top of page 87:

In view of these considerations the bishops of the church (even if unincorporated) would be the proper persons, on behalf of their respective flocks, to demand before an international tribunal, like the present, fulfillment by Mexico of the duty it assumed by the decree of 1842.

Since that argument was made, and since the former award was made, a considerable body of jurisprudence has grown up in America relating to controversies about church property. In the absence of a corporate capacity the property is treated as owned by a number of persons in communion for particular purposes, like any unincorporated association for literary, benevolent, or scientific purposes. That is the status of all religious sects in the United States which are unincorporated, at least so far as their properties are concerned.

The argument which we now have under consideration, that the bishop was the proper person to demand performance here, is a rule settled in the jurisprudence of the United States in relation to land grants by Mexico to these missionary uses immediately preceding the cession of Upper California to the United States.

Shortly after the cession of California to the United States and its admission into the American Union, the Congress of the United States passed an act to settle private land titles in the State of California. This act, which was passed in 1851, provided a commission to ascertain whether grants of land which it was claimed had been made by Mexico were valid. If valid they were to be given force and recognition by a patent issued by the United States. This act of 1851 provided for the creation of a board of land commissioners, to which every person having or claiming to have a title derived from Mexico was required to present his claim. Upon the adjudication of the commission, either for or against the grant, the case passed by appeal to the United States district court and thence, if need be, to the United States Supreme Court. Under that act the bishop of the Californias, Joseph Sadoc Alemany, presented to the board of land commissioners a claim for all of the properties of the church which had been granted to religious persons or which had been dedicated without any formal conveyance to missionary or other religious uses. The question arose in that case whether the bishop was the proper person to come forward on behalf of the undefined communion known as the Roman Catholic Church in California to claim patents and whether he appropriately represented the church. Our courts decided against their own Government, because if these grants were not valid the property claimed under them remained

a part of the public domain of the United States. Our courts, I say, held that those were effectual grants to be carried out by the United States under its obligation to treat as valid and effective grants previously made by the Government of Mexico, and furthermore decided in accordance with the contention which Mr. Doyle made before the former arbitral court, and which he indeed made before the land commission upon behalf of the bishop, that the bishop appropriately represented the church, the clergy, and the laity--both those actually and those potentially within the fold-and was entitled to receive the patents for church lands.

It is that principle established by the courts of the United States that we invoke for application here.

At page 564 Mr. Doyle says, third line:

When the territory of Upper California was ceded by Mexico to the United States it was held by the judges, in a suit between the Government and the church, that the latter had become the owner of these properties so appropriated by dedication of the Government.

1

Please keep in mind that some of these grants were affirmed, not on the ground that t Government had made a written instrument by which it conveyed the property to the church, but for that it recognized the use by the church for religious purposes. It had dedicated the property by its express consent, or by a course of conduct amounting to acquiescence, just as a man suffers a right of way to grow up by usage if he permits the public to travel over his domain from a time out of mind.

I now return to the extract which I was reading from Mr. Doyle's brief at page 564 of the Transcript.

He says:

And this doctrine received the sanction of the Supreme Court of the United States, in the case of Beard vs. Federy, 3 Wall., 479 (492). The United States only asks in this case the same recognition of the rights of the church to property, expressly dedicated ad pios usus, by individuals which their judiciary enforced against themselves in a case of dedication of portions of the public domain, in respect to which they had succeeded to all the right of Mexico implied in the vice-regal ficense under examination.

This point is also dealt with, commencing with the words "Another precedent occurred," etc., on page 89 of the Transcript, and continuing to the words "why not also the interest," on page 92. At page 89 will be found extracts from the decision of the United States land commission upon the application of the Roman Catholic bishop of Monterey for a patent to the properties claimed by the church. In this case all of the questions with which we are now concerned are dealt with, and it was there decided that the bishop was the proper person to receive the patent.

On this same point I desire to refer the tribunal to paragraph 5 of one of Mr. Doyle's briefs, page 471. I shall not read it.

There is another precedent upon which we rely one established by Mexico in a treaty with Spain, made in 1844. Of that precedent it is said at page 92:

In this connection, and in order to present the whole argument together, I take occasion to repeat in extenso the reference to the precedent (quoted in our memorial) of the missionary fund of the Philippine Islands. In its general character and the objects to which it was devoted it was analogous to the Pious Fund of the Californias. Its income had been, down to the severance of Mexico from the Spanish dominion, periodically remitted to the ecclesiastical authorities in those islands. Shortly after the declaration of Mexican independence the properties of this fund