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Suing for the Pious

Q: O.K., so I’m sitting in the reading room trying to study and this huge painting of an old dude is staring down at me. I’m assuming this is Garrett McEnerney, the guy the library is named for. Was he a famous alum? Professor? - T.S., Berkeley

Garret W. McEnerney had no direct connection to Boalt Hall, but he was a very big personality in the San Francisco legal community, perhaps best known for arguing the first case ever submitted to the Permanent Court of Arbitration at The Hague — an effort to recover money from the wonderfully-named Pious Fund for the Californias.

McEnerney’s story has roots that run deep in California history, ultimately (and improbably) linking the Jesuits to the construction of Boalt Hall.

Spain’s early attempts at the colonization of Baja and Alta California resulted in a rift between the two major players — the Spanish military and the Society of Jesus (Jesuits). The priests realized that as long as they were financially dependent on the crown, their efforts at proselytization would be hampered, so in 1697 the Jesuits established the Pious Fund for the Californias. Spanish faithful donated cash and property, and in only a few decades the fund grew to a current equivalent worth of over $43 million. Mistrustful of the government, the donors in most cases stipulated that the funds should never under any circumstances be administered by a secular authority.

In 1767 the King of Spain expelled the Jesuits from all Spanish dominions, and in 1773 the religious order was suppressed by Pope Clement XIV. The Spanish crown took over the administration of the Pious Fund until Mexico gained its independence, at which time control shifted to the Mexican government. Missionary efforts were divided between the Dominicans in Baja California, and the Franciscans in Alta California. In 1842 when President Santa Anna was rebuffed in his attempt to borrow from the Fund, he seized all the assets, sold many of the properties, and added the money to the Mexican treasury. He promised that the government would pay interest of six percent a year on the confiscated funds in order to continue the missionary work the donations were intended to support.

And soon the United States government entered the picture. When Alta California was ceded to the U.S. under the Treaty of Guadalupe Hidalgo in 1848, Mexico felt that it should no longer be required to support the Catholic Church in the territory (and later, state) of California, and abruptly halted the promised interest payments. The dispute was brought before an international claims commission in 1869, and umpire Sir Edward Thornton ruled in favor of the U.S., declaring that Mexico was liable for back payments on the Pious Fund from 1848 through 1869. Those payments were eventually made, but the Mexican government refused to make any further payments beyond those directly ordered by the Thornton ruling.

The dispute simmered in the background until 1902, when the Catholic Church in California found an unlikely ally in Teddy Roosevelt. The president was a big supporter of the Permanent Court of Arbitration (established in 1899), and he was worried because the court was languishing without a single case ever brought before it. Here, TR decided, was a case ripe for international arbitration. Mexico agreed to bring the case to The Hague, where arguments were heard from September-October 1902. Garret McEnerney was one of the attorneys representing the United States.

The panel ruled in favor of the U.S., and Mexico was ordered to make annual payments of $43,050.99 in perpetuity. The payments were made until 1912, when they were suspended because of the Mexican Revolution, and they were not resumed until 1966, when Mexico negotiated a final lump sum payment.

Garret McEnerney served on the UC Board of Regents for forty-one years. In the aftermath of the 1906 Earthquake and Fire, the McEnerney Act set out procedures for San Francisco property owners to establish title despite the complete destruction of real property records. It is particularly appropriate that the Law Library was named after McEnerney. When the California Supreme Court Library was burned in 1906, McEnerney quickly ordered replacement books for his personal library, which was then used by the California justices until their own collection could be restored

Upon his death in 1942 McEnerney left one half of his estate to the University of California. The Regents decided to give nearly three-quarters of a million dollars to the School of Law for construction of a new library. Hence the dude in the painting disturbing your studies.

Have a question? Ask the Archivist: benemann@law.berkeley.edu

4/26/2012