United States. Congress. Senate. Committee on Fore.

Compilation of reports of Committee ... 1789-1901, First Congress, first session, to Fifty-sixth Congress, second session .. online

. (page 139 of 156)
Online LibraryUnited States. Congress. Senate. Committee on ForeCompilation of reports of Committee ... 1789-1901, First Congress, first session, to Fifty-sixth Congress, second session .. → online text (page 139 of 156)
Font size
QR-code for this ebook

was to the file clerk. I then went to a gentleman who was introduced
to me as Mr. Donaldson, the file clerk of the Senate, and I described
the document I desired, and he took down so much of his files as he said
it would be among, if it was with him at all, and went through them, I
standing over him, by his request, and looking over the papers also. It
was not among the papers that he examined, and he said it was not

Digitized by VjOOQ IC


with him. I also went to the State Department, as it was suggested
that possibly it might have been returned with the treaty there, or got
there somehow I went to the State Department and inquired of the
gentleman in the chief clerk's room, officiating as such — I suppose he
was the chief clerk, a stranger to me — for the document there. He said
that it was a paper that would not be returned there, and would be here
with the files of the Senate.

Q. Now, will you state whether you ever made a copy of that affida-
vit, and carefully compared it with the original ? — A. I did ; yes, sir.

Q. Have you that copy with you now f — A. I have ; yes, sir.

Q. Please produce it. — A. (Producing paper.) That is the copy.

The Chairman. What was the date of that paper there f

Mr. Kennedy. It is the 23d day of April, 1878.

Now, Mr. Chairman, we offer this in evidence as an examined copy
of an affidavit that has already been on the files of the Senate Com-
mittee on Foreign Relations and seems to have been irrecoverably lost.

The Chairman. What was the last date mentioned there, 1882, when
he handed this in f

Mr. Kennedy. August 6, 1882 ; he says it was Judge Shellabarger,
as I understand him, who handed it in to Mr. Pendleton.

The Chairman. Mr. Kennedy, will you ask him this question now
(handing it to him in writing) f

By Mr. Kennedy :

Q. " What was pending before the Senate or the Committee on For-
eign Belations on August 5, 1882, that caused you as counsel for La
Abra Silver Mining Company to pilace the original affidavit of Exall on
file with, or to hand it to, Mr. Pendleton, a member of that commit-
tee f — A. As I understood, a treaty was pending, a proposed treaty,
between the United States and Mexico, having for one of its objects to
set aside this award and granting a new trial ; I have no official infor-
mation of that, but it was common understanding.

The Chairman. Now, General Foster, state the grounds of your ob-
jection to this testimony if you have any.

Mr. Foster. My objection is that it is a purely ex parte affidavit.
The rule under which the committee have been acting has been to ex-
clude all evidence of this character. The circumstances under which
the affidavit itself is given shows that it is improper evidence aside
from that rule — improper to be admitted as evidence at this time.
This witness, as I learn from his memorial, saw the printed copy of
letters in General Slaughter's pamphlet. He went to New York and
told Exall something of the contents of them. He is the attorney and
one of the interested parties in this award, an officer of the company.
He makes this statement to Exall of the character of those letters, and
Exall makes an affidavit without ever having seen the printed copies
of the letters. Even if it were proper to admit that ex parte affidavit,
it certainly is not proper to admit such a statement as is made under
these circumstances.

The Chairman. What is your reply to that, Mr. Kennedy f

Mr. Kennedy. I think, Mr. Chairman, that what Mr. Foster has
said, so far as it is correct, might go to the value of the affidavit, but
would be a matter of argument for the other side in showing that not
ZDUch faith was to be given to the affidavit, but my friend omitted to
state — perhaps he did not notice — that the witness has testified that
before he said anything to Exall about the contents oi those alleged
letters in the Slaughter pamphlet he made diligent search among the

S. Doc. 231, pt 2 61

Digitized by VjOOQ IC


papers of the compaDy for its correspondeuce; that is, the witness tried,
before he disclosed the matter to Exall, to tiDd the original and the best
proof of this alleged correspondence.

Now, in regard to the other objection of Mr. Foster that the rule of
the committee has been to exclude everything that was ex parte, I have
to say that my understanding is different from that. I understand that
the committee has included in the evidence taken by the subcommittee
and to be presented to the fdll committee everything on this matter that
was ever officially before Congress or any of its branches or the State
Department, and I think that the record or what we use as the record
.is full of just such evidence. I rexjall now Mr. William R. Gorham's
affidavit in regard to the alleged fact that Alfred A. Green, one ol the
witnesses for the company, never signed his deposition and never had
it read to him, and then, among other matters, we have Mr. Dahlgren's
letter that was not even sworn to. Of course that has been followed up
and I suppose that would make a difference, but the Green and Gorham
affidavits and statements have never been followed up. and yet they are
in the record, that we suppose, under the rule of the committee, will be
used in this examination.

Mr. Foster. It is perhaps unnecessary to say. Mr. Chairman, that
when this question was discussed at your last meeting the scope and
effect of the documentary matter that had been admitted was explained,
but when an affidavit is sought to be brought into this committee or
submitted as evidence it assumes altogether a different character.

Mr. Kennedy. 1 think that my fiiend's objection would be good if
Exall were living and we could possibly produce him, but within a few
months of making this affidavit he died, and it seems from the state-
ment of the witness that the witness lost no time in bringing this affi-
davit to the notice of the (persons charged with this investigation.

Mr. Foster. We got no indulgence on account of the death of

The Chairman. Don't let us go over the whole field, gentlemen, on
this. 1 am trying to get at the broad ground on which this is insisted
upon as legal evidence and the ground upon which it is objected to. The
committee have not admitted any affidavit or letter to go into this rec-
ord that has not been proven before them in some legal form, so far as I
have any recollection, at all. Certain letters and affidavits were referred
to in what was called the Mexican case as submitted to the State De-
partment in the diplomatic correspondence between the two Govern-
ments, in which was set forth in the way that Mexico chose to set it forth
the reason why that Government insisted that there should be a rehear-
ing of the case. That paper filed in the State Department is not evi-
dence of anything except merely as the insistence of Mexico and her
activity in trying to get rid of this award. It came in in the form of a
pleading and assertion on the part of Mexico, and not in the form of evi-
dence. The committee have not in the slightest degree given any weight
to the statements that are contained therein except only so far as they
have been substantiated by proof of a legal character submitted on this
present hearing. So that the precedent to which Mr. Kennedy refers
does not hold so far as the action of this committee is concerned. The
question remains simply this: Is an affidavit made by Mr. Exall in
April, 1878, to which he swore before a magistrate or notary public,
competent evidence in this case because Exall is dead and can not be pro-
duced, or because Mr. Ely has been unable, as he asserts, to find the
original correspondence between the company and Exall f That is what
I understand to be his statement. Having now taken this down the

Digitized by VjOOQ IC


examination of Mr. Ely will proceed, subject to the motion to exclude the
alleged copy of the affidavit, which will be raled upon by the subcom-
mittee when we get together to pass upon the question. Now, Mr. Ken-
nedy, on that hypothesis you can proceed.

Mr. Kennedy. To a different branch!

The Chairman. No, sir; you can proceed to examine Mr. Ely upon
this affidavit as if it was in evidence, but the committee will reserve
the right of course to exclude it.

Mr. Kennedy. I was going to read it.

Mr. Foster. We object if it is going on the record in any shape.

The Chairman. The final ruling of this committee will depend upon
whether it is competent evidence. If it is competent it will go in; if it
is not competent it will go out.

Mr. Kennedy. Will you let me add, Mr. Chairman, that the affidavit
of Mr. Snndell is also in the printed record on behalf of the Mexican
Government, although it has never been followed up by the examina-
tion of that witness.

Tlie Chairman. Well, the committee attach no importance to Mr.
Sandell's affidavit. It was merely a paper that was obliged to go in
here because it completed the record that was filed in the State Depart-
ment. There were a number of papers that were not proved at all and
have not the slightest weight as evidence, merely because they have
not been proved before the committee.

(Mr. Kennedy read the following paper:)

To La Abra Silver Miming Company:

My atteDtioQ has been called by the attoniey of yonr oompany to a statement that
it is claimed by an ageot of Mexico Ibat certain letters written by and to me have
l>een obtained by bim wbicb contain statements at variance witn the depositions
made by me in the matter of the claim of yonr company against Mexico, on which
an award was made in your favor by Sir Edward Thornton, the umpire. I have not
Assented to tbe appropriation of my letters by any one, and if any of them are in the
possession of such agent they have been improperly obtained. I have not seen those
alleged letters, and can not say whether they are genuine, garbled, or wholly manu-
factured for some purpose.

There were a number of letters written by me while in yonr employment and sub-
sequently which, without explanation, may in part be considered as differing from
my testimony. Tbey were written between the early part of my administration of
the affairs of your company in Mfxico and a time some months after I ceased to be in
your employ. The explanation of such parts of these letters as on their face seem to
be inconsistent with my depositions will be found in the following facts:

1 was sent from New York by the La Abra Silver Mining Company to Mexico to
assist Col. J. A. De Lagnel, wLo was then superintendent of the works of the com-
pany in Tayoltita. When 1 reached Tayoltita, I was accompanied by James Gran-
ger,' an English subject; he was a fellow passenger on the steamers from New York
to San Francisco; a few days after leaving the port of New York we became ac-
quainted, and finally quite friendly and intimate, so much so that although his desti-
nation was California, much to my surprise when we arrived at San Francisco, he
concluded to go down to Mexico with me, and did go with me to Tayoltita and re-
mained at the company's hacienda as my guest until I (when I subsequently took
charge of affairs and having found out that he was an expert man with books) gave
hi en employment.

We had not been there many weeks before we concluded (for we frequently talked
with each other on the subject) that the company, as a companv, would not be tol-
erated long in Mexico ; that it was a mere matter of time when they would be driven
out and compelled to abandon and lose all tbeir interests there (as other American
enterprises there had been) and which would thus fall into tbe hand of some one who
would get the benefit of all their works and of a large amount of valuable ores, which
Lad cost the company large sums of money and much labor, and we conceived the
idea of reaping the benefit ourselves.

"We sa^ that if the company was actually expelled, as we were certain it ultimately
-v^'ould be, we might not, and most probably would not, be able to secure the property,
as it would probably fall into other hands; but if the company could be induced vol-
nntarily to abandon the property before matters culminated in an expulsion, or to

Digitized by VjOOQ IC


part with it for a small consideration, we could probably retain the poBsesBlon and
secure the property to ourselves and due protection (Mr* Granger being an English

The company was already somewhat disappointed because more rapid progress had
not been made at the works and in reaching money results, and somewhat dissat-
isfied with bein^ drawn on by the superintendent for more money. We thought
that the state ol affairs at the works could, from time to time, be so presented to the
company as to induce the feeling we desired, and concluded to act a<:cordingly. There
was no purpose to wrou^ the company in any way; all we sought was to be enabled
ourselves to get possession of the property and at the shortest possible time before
the company would be driven out, which we believed was certain to be done, instead
of permitting some one else, in that event, to obtain it.

Colonel De Lagnel, the superintendent, was sick, and had become thoroughly dis-
gusted with life at the mines ; and the annoyance and obstructions to which he was
subjected in Mexico worried him to such an extent that he felt, as he said, unfitted
to properly attend to the business to be done, and he frequently asked me, dnrine
his administration, to take charge of affairs, which I did. And thus I indirectly had
charge of the business of the company for some time before his departure, and I pur-
posely made such reports to him as to the quantity and quality of the ores as would
tend to give the color and tone to his letters written during the latter part of his ad-
ministration to D.J. Garth, the treasurer of the company in Nhw York.

When he left I became acting superintendent, and I retained Granger to assist me,
as already stated. I conducted the business of the company the sam« as if I might
be mistaken in my opinion thai it would ultimately be driven out of Mexico, and did
my utmost to improve and perfect its works, to get out ores, and make its mines
valuable. I obeyed the instructious of the company to my predecessor and niyself
and cut down all expenses, and to do so cut down the working force ; but I en-
deavored to keep up production and the working of the mines by employing men to
work by the carga. I expended every dollar of the company's money in its business,
and notwithstanding its dissatisfaction at some drafts of my predecessor, I drew on
the company for money for it« business. Much of the bullion extracted by me was
not minted, but was sent by me without the knowledge of any one at the hacienda
but myself, some of it to New York, and some of it to San Francisco. This secrecy
was necessary, because if it was known it would have been liable to seizure as con-
traband, and to avoid a possibility of a discovery of the facts, no entry of it was ever
made in the company's books, but the proceeds were put into the company's business
as stated in my deposition.

In my letters to Mr. Garth, treasurer of the company, written from time to time, I
purposely dwelt upon the exaggerated necessities and tlie exigencies of the situation
and belittled the value of the mines and ores and gave to the letters a discouraging
aspect. I also wrote to him about my arrest and the threats made to me, and the
difficulties and obstructions generally which I met with from the Mexican authorities
and people.

Mr. Garth wrote such answers to my letters as I assumed they would call forth,
and from the answers it seemed evident that the company would not be unwilling to
enter into some arrangement to part with their property ; and in the latter part of
February, 1868, 1 concluded to go on to New York and see what could be done to that

Preparatory to so going I drew a paper addressed to James Granger, which pur-

Forted to invest him with my authority and to give him power to act for the company,
had no power to confer, bemg only an acting superintendent, nor authority to con-
fer such power if I had any ; but it was necessary for the purposes we had in view
that he be in possession, and that he should seem to Mexicans to have the proper au-
thority. Had I gone then, I intended to return. But I reconsidered my decision to
go at that time, and concluded I ought to remain longer before going, and await still
more alarming indications from the people and authorities, and the paper I have
referred to was never delivered to Granger. Whether I destroyed it or left it among
the loose and discarded papers at the hacienda of the company I do not remember. I
remained there some time afterward, but I wait«d too long, and the explosion which
I believed to be several months distant came unexpectedly, and the expulsion of the
company, and my abrupt departure to save myself from personal harm, and the com-
plete abandonment of everything belonging to the company took place as I have stated
m my deposition.

This expulsion satisfied me that the animosity of th^ authorities and people was
not only against the company as an American company, but also against me as the
representative of an American company, and individually, and that even if I ha«l
got, or could get possession of the property, I would not have been permitted to re-
main in the employment of it long, and I gave up all idea of returning for that pur-
pose ; but I hoped that Granger, instead oi!some Mexican, wonld got the possession of
the property, fbud which I thought through his late afiiliation with a Mexican family

Digitized by VjOOQ IC



he miffht be enabled to do, and which he did as I learned, except that, as I am in-
formed, Judge Soto, the father of his wife or mistress, took possession of and occu-
pied the company's hacienda.

I returned to New York and informed the company of its expulsion, and of my
forced abandonment of all its property and f^ave them a full history of the state of
their a£&irs, and of the feeling in Mexico aga nst them. The company seemed to
think the case was hopeless.

A party who had heard of the company's mines proposed to ^et up a new company
and buy out the La Abra Company; and believinj^ that something might be saved to
the company and made for myself, I exerted myself to bring it about, and even offered
to accompany the party to Mexico to aid in completing the transaction, and I wrote
several letters to Granger partly upon that subject, suggesting what course he should
pursue, and endeavoring to prevent his throwinj^ any obstacles in the way; but the
party subsequently learned, through some channels, of the hostility of Mexicans to
American companies, and of the actual expulsion from the country of La Abra Com-
pany, and he dropped all negotiations on the subject, and nothing ever after came of it.

I speak of my letters from general recollection of them only, but the foregoing is
a correct history of the origin and purpose of all lettrrs I have ever written which
contain anything inconsistent with my depositions — they were written for the ex-
press purpose of enabling Granger and myself to obtain the possession of the com-
pany's works and mines in the contingency which I have mentioned, and were
known to and largelv prompted by Grander, and in fact partly draughted by him. and
in so far as they conflict with my depositions, the letters are untrue, and every mater-
ial statement in my depositions is true.

Charles H. Exall.

New York, April 23, 1878.

State of New York,

City and County of New York, sa:
Charles H. Exall being duly sworn says that all and singular the matters stated
and contained in the foregoing letter or statement by him subscribed are true.

Charles H. Exall.
Sworn to before me May 1, 1878.

James D. McClelland,
Notary PubliOf New York County,

After the hearing of Mr. Ely the sabcommittee met, and after con-
snltation decided:

Mr. DOLPH. The full sabcommittee, having considered the offer of
the attorneys for La Abra Company to pat in evidence the sworn copy
of the afi^davit of Charles H. Exall, hold that said affidavit being an ex
parte one, not taken in any legal proceeding and being offered by the
attorneys for the company, is not competent evidence; but in the opin-
ion of the committee it would have been competent if offered by the
counsel for Mexico or on the part of the committee for the purpose of
impeaching the witness Exall concerning his testimony taken before
the Commission. It is ordered that it be printed for that purpose.

The CHAraMAN. I concur in the opinion of Senator Dolph as to the
purposes for which this affidavit may be considered as evidence. There-
fore the committee, on their own motion, direct that this be printed in
the record.

Mr. Beown. I dissent from the ruling of the majority of the commit-
tee, on the ground that the counsel for Mexico tender the affidavit in
evidence to impeach the deposition of Exall.

The Chairman. Bave you any questions to ask him about that paper,
Mr. Kennedy.

By Mr. Kennedy :

Q. Please state who it was that drew the statement which has just
been read to the committee; the one sworn to by Exallf — A. Mr. Exall
himself. It was in his handwriting.

Q. If you had any part in the preparation of the statement will you
please state fully to the committee just what that part was f — A. I

Digitized by VjOOQ IC


drew the affidavit at the foot of it, and when he brought me the state-
ment it was addressed to me as the attorney of the company. I sug-
gested that he should address it to La Abra Company itself, which
necessitated a change in some part of the phraseology of the first two
or three lines, which he made, and also I suggested the transposition
of some paragraphs. The order — it struck me as I read it — it struck
me it would be more consecutive if he would change the location of
some paragraphs, and I suggested that. That is the only part or lot I
had with it.

Q. Please state in whose handwriting the original affidavit — the
statement which you have described was written. — A. The statement
signed by him was in his handwriting. The affidavit at the end was
in mine.

Q. Well, I speak of the affidavit. I mean the statement that was
sworn to, and my question is in whose handwriting the sworn state-
ment was t — A. Mr. Exall's.

Q. How long was it after that that Exall died ? — A. I do not know
the exact date of his death, but I think it was in the fall or winter of
the same year.

Mr. Kennedy. If you have no questions to ask the witness, Mr.
Chairman, I will pass to another point.

The Chairman. Ko ; conclude the examination about this. Put it
together so that if it goes out on the record it must go out bodily, and
if it goes in it can go in bodily. General Foster have you any questions
to put about this matter f

Mr. Foster. None.

By the Chairman:

1 wish to ask him a question or two now. How long after Exall's
return to New York was it that this affidavit was written f — A. Well,
sir, I should think it was ten years.

Q. Ten years after his return from Mexico f — A. I think he returned
from Mexico in about 1868, and this was in 1878, which would be tea

Q. What had he been engaged in during that period often years f — A.
I could not answer as to that what he did quite a number of the years
after he came back ; I don't know. The latter part of the time he was
clerk or cashier in one or more of the bankers and brokers' houses there
in the city.

Q. Was he during any part of that time conducting business on his
own account t — A. Not that I am aware of. I never knew of it.

Q. Did you see him frequently during that interval of ten years f —
A. No, sir; not the first part of it, and I doubt very much whether
he was in the city of New York. The latter part of it I saw him occa-
sionally; happened to run across him.

Q. Were you the agent and attorney of the company at the time he
returned from Mexico f — A. I was the attorney of the company.

Q. Did you have any other official connection with it! — A. None

Q. Who was the secretary and treasurer of the company at the time
of his return ? — A. Well, I think Mr. Worthington was the secretary
and Mr. D. J. Garth was the treasurer; that is my recollection about it.
I have no official information about it.

Online LibraryUnited States. Congress. Senate. Committee on ForeCompilation of reports of Committee ... 1789-1901, First Congress, first session, to Fifty-sixth Congress, second session .. → online text (page 139 of 156)