of Mexico, or even of unscrupulous Mexican local officers, for two years after the conquest, to deprive the United States of all its fruits, by alienating the public domain. But to apply this doctrine to questions of allegiance and citizenship would be monstrous, and wholly at variance with every principle of international law.

X. The dilemma suggested by Don Manuel Aspiros, in paragraphs151 to 153, is easily answered. The obligation to pay the annuity promised is continuous. No injury is committed until a failure to pay a particular installment; for each year a new installment became due, and each failure to pay gave a new right of action. For all that accrued and remained unpaid prior to the Treaty of Guadalupe Hidalgo, we have no claim enforcible here, because down to that time the citizenship of the church remained unchanged and the injury (non-payment) was not done to citizens of the United States. But an annual instalment became due October 24th, 1849, and was then, for the first time, demandable. It became due to the church after her change of allegiance and citizenship was complete. The non-payment of it was, therefore, an injury to the citizens of the United States, and was committed subsequently to the Treaty of Guadalupe Hidalgo. The same is true of each subsequent annual instalment.

XI. The suggestion that our claim is released by the Treaty of Querataro, I think I have already sufficiently answered in my printed reply to Mr. Cushing's argument. That treaty only released antecedent claims of American citizens. To come within its operation, therefore, it should appear that the claim here presented existed in favor of such citizens anterior to that treaty. So far is this from being the case, that the parties on whose behalf it is made only acquired their American citizenship by that treaty, and the claim is limited expressly to instalments coming due after its ratification.

As to the modification of the Ninth Article of that treaty, introduced by the United States Senate, and accepted by Mexico, referred to in Par. 117, its object and effect are clearly misapprehended by my opponent. The change in question was proposed simply in deference. to the First Article of the Constitution of the United states, which forbids effectually all discriminative legislation on the subject of religion, and rendered the clause which was stricken out not only unnecessary, but apparently censorious, and therefore objectionable.

XII. In concluding this reply, I revert to the precedent of the Convention between Spain and Mexico for the payment of the missionary fund of the Philipine Islands, as well for the purpose of correcting a grave error, suggested by the argument of Don Manuel Aspiros, as because of the valuable illustration it affords of some of the questions discussed. He intimates, (Par. 136, et seq.) that the restitution of that fund was a concession made to Spain to induce her acknowledgment of Mexican independence; but the dates will not bear out that suggestion. The treaty by which Spain acknowledged the independence of her former colony was signed in Madrid. December 28th, 1836, and proclaimed in Mexico February 28th, 1838. Several years after its ratification, Spain claimed of Mexico, on behalf of the Philipine missions, (represented by their attorney in fact, Padre fr. Josè Moran), payment of the sum remaining due to them; and the negotiations resulted in the Convention of November 7th, 1844, by which the amount was liquidated and its payment provided for; 1. The dates alone show that the latter arrangement could not have been an inducement to the

former; 2. Again, one-half of the moneys derived from the bequest of the Señora Arguelles, mentioned above, went to increase the fund of the Philipine Islands, and an equal proportion to the Pious Fund of California, both under the same decree; the latter, therefore, stands on precisely the same footing as to this contribution as the former, and the payment of the former admits a liability to pay the other. 3. The Philipine Missions, too, were institutions precisely of the same character as those of California; as it was not discovered by the Mexican publicists of that day that they were mere political establishments, it can hardly be true now. 4. And so of their representation-the ecclesiastical authorities were admitted to be the proper parties to receive the moneys then, and were even made parties to the negotiation and to the convention; the same status cannot, therefore, be justly denied them now.

Cases like the present are, naturally, of very rare occurrence, and it is scarecely to be expected that many precedents precisely analogous can be produced; but I venture to think that the case of the Philipine Islands is so nearly on all-fours with the one at bar, that it can not justly be distinguished from it. I repeat, for convenience, the reference to that convention, the text of which is to be found in the "collecion de tratados con las Naciones estrangeras, leyes, decretos y ordenes que forman el derecho internacional Mejicano," Mexico, 1854, page 516. XIII. A more modern case might be imagined and, perhaps, advantageously used in illustration.

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James Smithson, a British subject, bequeathed a very large sum of money to the United States of America, for the purpose of founding at the city of Washington an institution for the increase and diffusion of knowledge among men." The United States accepted the bequest, and received the money, which was paid into the Federal treasury. It was a trust fund which the Government of the United States was sacredly bound to apply to the used designated by the testator. That Government, for the greater security of the funds, directed them invested in its own bonds, nearly as Mexico did the Pious Fund. Afterwards, the Smithsonian Institute was founded, and has since been supported by the income derived from these funds, aided, I believe, sometimes even by grants from the public treasury. Suppose now, that by the fortune of war, in some collison with a foreign Power, the city of Washington should cease to be American soil, and be ceded by treaty to such foreign Power, would the endowment of the Smithsonian Institute preceeding thus from private benevolence, and of which the United States were but trustees, be lost, or they discharged from their obligation to pay it annually or semi-annually as it became due? And the regents of the Institute, though once an American corporation, having by the events supposed become a foreign one, would be the proper parties to receive it, while the Government to which they thus became subject would properly demand it for them. In such case, I can imagine the same argument put forward as are here urged on behalf of Mexico: That the relations of the United States Government to the educational system of the country were peculiar, and wholly political; that encouragement had been continually given by grants of land and public moneys to the establishment of common schools and universities throughout the country; that these schools and universities

3

See his will in 8th Annual Report of Board of Regents of the Smithsonian Institute, p. 107. (1854.)

were, therefore, part of the political system of the country, and in reality political establishments; that the Smithsonian Institute was in effect the key stone of the whole educational system of the United States, and that the diversion to other public objects of the funds destined originally to the support of it and other schools was in the discretion of government. But the conclusive answer to all such arguments would be found, by all just men, in the fact that the endowment of the Smithsonian Institute proceeded from private charity; that it was a trust which the Government of the United States took upon itself to administer; that it had substituted for the original moneys received, its own obligation to pay an annual sum of money, and that it should continue to pay that amount until discharged by its creditor. The case supposed is precisely parallel to that of the Pious Fund; the charity of the present day merely takes a channel slightly different from that of a century ago. The relatitive importance, in popular estimation, of religious and scientific instruction, has been reversed.

XIV. The amount which should be awarded to the claimants remains to be considered. We have put in evidence Mexican Treasury Reports, etc., showing sums amounting to about half a million, derived from the Pious Fund and received into the public treasury subsequent to October, 1842. I at first supposed these sums to be additional to the properties and assets formally delivered to the Government when it displaced the Bishop as trustee. But on reflection I am not disposed to press that idea. The inventory by which delivery was made in March 1842, should probably be held at this late day conclusive on both parties."

Fortunately, the Government, on the enactment of the decree of February 8th, 1842, required the delivery and transfer of the fund from Don Pedro Ramirez (the attorney in fact of Bishop Diego) to be made with all the formalities and precision for which Spanish and Mexican public transactions are noted. An "instrucción circumstanciada," or detailed inventory of the properties and assets of the fund, was prepared and communicated by Mr. Ramirez to the Minister in the course of the correspondence, and as not complaint was

See the printed Treasury Report of Dec. 31, 1843, signed Mariano Hierro Maldo nado, which is in evidence, and where under head of "Ramos de recaudacion sin giro,'t is acknowledged, No. 50, Fondo piadoso de Californias $323.274.51. And a like repor dated June 20, 1844, where is found a similar acknowledgment of "No. 46, Fondo Piadoso de Californias $124,726.01." In "Mexico y sus cuestiones financiers con la Inglaterra, la España y La Francia" by Manuel Payno, an official report, which we have filed in evidence, is given at p. 187 and seq., an account of the Philippine Fund and the Spanish Convention of 1844. On p. 188 is a historical summary of the facts substantially the same as that contained in our memorial. The Author although sufficiently disposed to censure Padre Moran and all who supported his claims, has not suggested the excuse for the convention put forward by Don Manuel Aspiros. Document "B" attached to that essay shows receipts from Madam Arguilles estate for the Philippine missions of over $306,000 of principal, on which interest was credited and paid of more than one hundred per cent. It is incidentally admitted that a like sum was received for the California missions. These three amounts, officially acknowledged, aggregate $754,901, and as they leave the large properties of the fund unaccounted for, it is not improbable that they are in addition to the values mentioned in the Ramirez inventory. But I admit that the proof is not clear enough to be satisfactory. And am content to be restricted to the inventory.

This correspondence forms exhibit "A" to the testimony of Father Josè Maria Romo de Jesus. It is also deposed to by Archbishop Alemany as being found in the Archives of the diocese of California, when he took possession of it in 1850. The character of the handwriting and paper, as well as the inconvenient manner in which the sheets are fastened together have led me to furnish a copy in a more legible hand and convenient form, accompanied by a translation.

made then or since, of its inaccuracy, nor any reason suggested for supposing such, it must be presumed correct, as doubtless it is. The resume, at its conclusion, gives us the following totals:

1. An annual income of rents, etc., amounting to $34,655, and representing therefore, 6% per annum, a capital of..

2. Sundry demands upon the public treasury enumerated in the inventory...

3. Sundry amounts due from individuals.

$577,583.33

1,082,078.00 71, 464. 00 $1,731, 125. 00 32, 380.00

Nett capital of the Pious Fund at the time of the delivery to Mexico. 1,698, 745.00 The annual interest of this sum, at six per cent., amounting to $101,924 per year, Mexico undertook to pay. From October 24th, 1849, (the first annual installment which became due after the treaty) to the same date in 1870, when the memorial herein was filed, is twentyone years; hence, the amount due by her at the last mentioned date was, $2,140,404. This must be divided between upper and lower California, in such proportion as the tribunal shall deem just.

In population and in the number of churches and clergy to be supported, the contrast between the two countries is so violent, that I can think of no basis of computation which would give to the Peninsula any considerable portion of the fund or its income. Some facts on these heads are given in the deposition of Archbishop Alemany. In addition to them I refer to a work entitled "De la colonizacion de la Baja California y decreto de 10 de Marzo, 1857, por el ciudadano Ulysses Urbano Lascapas (primer memorial") Mexico, 1859, which seems to have been compiled by the order, or for the use of the Mexican Government, and wherein the population at that date (census of 1857) is given at 10,000 whites and 2,500 Indians. They have not probably increased materially since: but assuming that they have doubled, it would not have one twenty-fifth part of the population of this State. As to the churches and clergy, the disproportion is still greater, as may be seen by consulting the same work, and the current volume of the United States Catholic Almanac, or any other publication containing statistical information of the kind. I therefore think that a division which would give ten per cent. to Lower, and ninety to Upper California, would be liberal to the former. Perhaps, however, the number of Catholic rather than general population should be the standard: in that case eight to one would perhaps be nearer the proportion. Any award which in this respect is deemed just by the Commission will be undoubtedly satisfactory to all parties interested.

SAN FRANCISCO, January 1, 1875.

JOHN T. DOYLE,

of Counsel for the Claimants.

Copy of the EXHIBIT A. Annexed to the deposition of Joseph Maria Romo de Jesus

Instruccion circumstanciada del Estado del Fondo Piadoso &c.

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Resumenes de la instruccion

Consulta...

COPY OF EXHIBIT A TO THE DEPOSITION OF REV. JOSÉ MARIA ROMO DE JESUS.

No. 1. Numero 1. Ministerio de Justicia é instruccion pública. -Con fecha 22 del corriente dice el Excelentisimo señor ministro de relaciones exteriores á este de mi cargo lo que sigue:-Eesmo. Sor.-Impuesto el Ecsmo. Sor Presidente provisional de la communicacion de los S. S. ministros de la Tesoreria general que inserta V.E. en la cuya de 10 del corriente, y en la que manifiestan los inconvenientes que dicha oficina pulsa para el cumplimiento de la suprema orden expedida por el ministerio del cargo de V. E. in 18 de sete. de 1840 preveniendo el pago de los dos mil ps. que el consul ingles en Tepic, don Eustaquio Barron suplicó al capitan de fragata don Lucas Manso para gartos de la expedicion de la Corbeta Morelos que condujo á los Colonos á la Alta California en el año de 834, por no deberse cubrir dichos gastos, en concepto de los S. S. ministros tesoreros para el tesoro publico, sino por el fondo piadoso de Californias; S. E. ha tenido á bien acordar, que interesandose el decoro del Supremo gobierno en el saldo de este credito se lleve á efecto la enunciada suprema orden de 18 de Set. de 840 cargandose los indicados dos mil ps. al espresado fondo piadoso de Californias para lo cual dictará V.E. las ordenes correspondientes asi como para que la hacienda pública sea reintegrada de dicha suma.Tengo el honor de communicato á V.E. para los efectos consiguentes, y como resultado de su citada de 10 del presente. Y lo tratado á V. E. para su conocimiento y fines consiguentes. Y de orden del Eesmo. Señor Presidente provisional lo comunico á V.E. á fin de que disponga se enteren en la Tesoreria general los dos mil ps. de que se trata. Dios y libertad, Meje". enero 26 de 1842. Cartillo-Señor don Pedro Ramirez apoderado del Reverendo Obispo de Californias.

Resp. Ecsmo. Señor. Aun cuando no alcanzo la razon en que se han fundado los señores ministros tesoreros para opinar que del fondo piadoso de missiones de Californias se han de cubrir los gastos que se hieron en la espedicion de los colonos, que en la Corbeta Morelos llevaron á