Statement of the case.

"ART. 2. In each shall be established a parish, served by a secular clergyman, with a stipend, as the government shall decide.

"ART. 3. These parochial curates shall not recover or receive any fees for marriages, baptisms, or under any other name.

"ART. 7. Of the houses belonging to each mission, the most suitable shall be selected as the residence of the curate; the land appropriated to him not to exceed two hundred yards square, and the rest shall be specially devoted to a town-house, primary school, and public establishments and offices."

On the 3d November, 1833, the Mexican Congress passed an act authorizing the executive to adopt the measures necessary for their colonization, and with this view to use the property granted to pious uses, in order to facilitate the operations of the commissions and the transportations of families. On the 16th April, 1834, another law was passed, declaring that "all the missions of the republic shall be secularized." They "shall be converted into curacies, the limits of which shall be designated by the governors of the States where the said missions are." On the 9th August, 1834, certain rules, "agreeably to the spirit" of previous laws and instructions, were accordingly issued for the secularization of the missions, the rules, however, being provisional, and it being declared that "the Supreme Government will, by the quickest route, be requested to approve of them." On the 3d November, 1834, a decree of the Departmental Assembly provided for the colonization of the lands which had been secularized. On the 7th November, 1835, however, a law was passed by the Mexican Congress, enacting that until the curates should take possession, under the second article of one of the previous laws, "the government shall suspend the execution of the remaining articles, and keep matters in the condition in which they were before the pas sage of the said law." On the 17th November, 1840, Franco, Bishop of the Californias, addressed the Supreme Government on the subject of these missions. His letter, imperfectly translated, contains passages like these:

"From the time that the temporalities, which they created

Statement of the case.

and augmented with their personal labor and their stipends, were taken away from the missionaries, and that the seculars and their attendants (among whom are some I am acquainted with), and to whom no one would trust anything, entered into the possession of the property of the missions, their destruction was already doomed. In 1836, I notified to the Supreme Government the evils which the missionaries have to contend with, and not the least among these, that the administrators of them took possession of the houses in which the fathers were living,houses built by the religiosi, and in the construction of which they had invested the stipends they were receiving, and the labor of their hands. The fathers have been compelled, as I myself can bear witness, to live there as so many bankrupts, and with great inconvenience. The administrators keep in the habitations certain people who disturb all rest at nights, by their intoxication, gambling, and dancing, which the converts witness with shame. How insupportable is this! And what a miserable life for a few devoted religiosi! So much so is it, indeed, that many of them contemplate the abandonment of the missions, and to seek peace and tranquillity of mind in retirement. A tormenting life, indeed, and one which has dissuaded many persons from going to the missions, because they would not expose themselves to such suffering and to such disregard for their character. I well know, and have already communicated it to the government, that within a short time there will be nothing of the property of those opulent missions, which the administrators received when the fathers delivered them over. What missionary father is there who will be willing to labor to increase the property of the unhappy Indians, if experience teaches him that the fruit of his labor is to be taken away from the legitimate owners, and delivered to others, whom it has cost no anxiety or labor, to enjoy? Who is the religioso that would desire to build a house or plant an orchard for his recreation and comfort, if he sees that they are to be taken away from him, and to be pos sessed by the men who before have been supported by alms, the gift of these very missionaries, and that the unhappy fathers have to live at their own expense? What I insist on, and will always insist on, is that the houses and orchards which they or their predecessors have made, and which are contiguous to and in immediate communication with the churches, remain to the benefit and use of the missionaries. The administrators, as they

Statement of the case.

have at their disposition the Indians and property of the missions, can build a house for them, and leave the fathers in peace and quietude. I deem this measure of so great necessity, that if it is not adopted, there will not be any one who will desire to go to serve the missions at all."

To this letter were appended eight different requests, the purpose of which was to give effect to the wishes precedentedly expressed. And on the day of its date, an order issued from the Ministry of the Interior, reciting that his excellency the President had been pleased "to decree in conformity with everything asked in it;" and stating that an order was issued from the said ministry to the Governor of California, "to restore without delay to the missionary fathers the possessions and property which were under their administration for the conversion of the heathen."

In the year 1843 (June 12th), the Mexican government adopted a new constitution,-Bases Organica. Its seventh chapter is entitled, Gobierno de los Departementos, and relates, as its name implies, to the government of the departments. Among the powers given to the Departmental Assembly are

these:

"1. To establish the means of meeting their ordinary expenditures, or of making those that are extraordinary, which they may direct according to their powers with the approbation of the Congress.

"2. To decree what may be proper respecting the acquisition, alienations, and exchanges of the property that may belong to the community of the department. With regard to the alienation of lands, they shall observe the existing laws, and whatever is decreed by the laws of colonization."

On the subject of these missions, it appeared that on the 21st April, 1845, Pio Pico being then governor, the Assembly decreed thus:

"The government will demand information of all the persons having charge of the missions, in order that they may give it truthfully, of active and passive debts, showing the resources they have to pay the passive ones.

Statement of the case.

"The government, from the publication of the present decree, will suspend, until a convenient time, the granting of the lands immediately contiguous to the missions, considering that some of them are indispensable, or reserved and appropriated under the class of common lands."

On the 28th May, 1845, it made this decree:

"The departmental government shall call together the Indians of the missions of San Rafael, Dolores, Soledad, San Miguel, and La Purisima [San Gabriel, it will be observed, is not mentioned], which are abandoned by them, by means of a proclamation, which it will publish, allowing them the term of one month from the day of its publication in their respective missions, or in those nearest to them, for them to reunite for the purpose of occupying and cultivating them; and they are informed that, if they fail to do so, said missions will be declared to be without owners, and the Assembly and departmental government will dispose of them as may best suit the general good of the department.”

On the 28th October, 1845, it decreed thus:

"There will be sold in this capital, to the highest bidder, the missions of San Rafael, Dolores, Soledad, San Miguel, and La Purisima, which are abandoned by their neophytes. The missions of San Fernando, San Buenaventura, Santa Barbara, and Santa Ynez, shall be rented out to the highest bidder for the term. of nine years." [Bonds, &c., to be given.]

It will be observed that the mission in question in this suit is not mentioned as among either those to be sold or those to be rented.

On the 30th March, 1846, another decree was passed:

"The government is authorized to carry into effect the object of the decree of the 28th of May last respecting missions; to which end the departmental government will act in the manner which may appear most conducive to obviate the total ruin of the missions of San Gabriel, San Luis Rey, San Diego, and the remainder which are in similar circumstances.

"As most of these establishments are owing large amounts, if the property on hand should not be sufficient to satisfy their acknowledged debts, attention shall be had to what the laws determine respecting bankruptcies, and steps shall be taken accordingly.

Statement of the case.

"Should government, by virtue of this authority, find that in crder to prevent the total ruin which threatens said missions, it will be necessary to sell them to private persons, this shall be done at public auction, the customary notice being previously given

This decree was soon followed by a letter from the

"MINISTRY OF INDUSTRY AND PUBLIC INSTRUCTION.

"MOST EXCELLENT SIR:

"His Excellency, the President, has received information that the government of that department has ordered that the property belonging to the missions thereof be put up for sale at public auction, which your Excellency's predecessor had ordered to be returned to the respective missionaries for the direction and administration of their temporalities; therefore he has deemed proper for me to say that the said government will please to report upon these particulars, suspending immediately all proceedings respecting the alienation of the aforesaid property till the determination of the Supreme Government. I have the honor, &c. "GOD AND LIBERTY.

"MEXICO, Nov. 14, 1845.

"To his Excellency the Governor of the Department of the Californias.”

"MONTESDEOCA.

On the other hand, reliance was had, among other things, on a circular public letter, or authority, as follows:

"MINISTRY Of War and MARINE.

"TO THE GENERAL COMMANDER OF CALIFORNIA:

"The preparations which the United States are making, and the approach of the naval forces towards our ports, leave no doubt that war with that power is about breaking out, and as his Excellency the President pro tem. is resolved to sustain the rights of the nation, he wishes that in all the ports of the republic where the enemy may present itself a rigorous defence be made, capable of giving honor and glory to the national flag. For that object, and until the Supreme Government appropriates and sends you the necessary means, it relies upon your patriotism and fidelity to dictate the measures which you may judgo necessary for the defence of that department, for which purpose you and his Excellency are invested with full powers.' And I