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

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Q. At what time was the business of the company passed into your
hands as trustee? — A. It never passed into my hands except as only
one of the trustees.

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Q. Were you ever the treasurer and secretary! — A. Yes.

Q. When did that occur ! — A. In 1876 I became secretary and then
treasurer ; not, however, at the same time. I became treasurer in 1877
or 1878.

Q. When did you receive the first installment of money on the award
for this company ? — A. I think it was in the fall of 1879.

Q. After ExalPs return from Mexico did he have any dispute or con-
troversy with the company about his salary out there! — A. Well, I
have an impression that he and Mr. Garth had some disagreement
about it.

Q. Do you know whether it was paid! — A. No, I do not; but I knew,
in a general way, that they had arrauged their disagreement.

Q. How much did he receive! — A. I do not know, sir; know nothing
about it; had nothing to do with the adjustment of it.

Q. Have you never seen any record or paper of the company that
showed the settlement with Exall ! — A. No, sir; I have no recollection
of any.

Q. Have you any papers of this company now in your possession! —
A. I have some that came into my possession since I became secretary
and treasurer myself, in the year 1876.

Q. What is the character of these papers !— A. Well, the records
which I have kept, and the books which I have made.

Q. Do thovse records contain any evidence of a settlement with
Exall! — A. No, sir; I am sure they do not.

Q. Did Exall sue the company for his salary! — A. I don't think he
did, but I would not be positive about that. It is barely possible he
might have caused a summons to be served on them, or something of
that kind; but if there had been a litigated suit it would have fallen into
my hands, and there was nothing of that kind.

Q. How much stock have you got in this company ! — A. I have one
share transferred to me nominally to qualify me to act.

Q. How much of the proceeds of this award has been assigned or
transferred to you ! — A. Not a dollar.

Q. How much has been agreed to be assigned or transferred to you! —
A. Not a dollar.

Q. Have you no contingent or conditional interest in the recovery of
this award ! — A. I have what I think you might call contingent interest
in the affairs of the company, not directly contingent by virtue of any
arrangement, but contingent by force of the situation.

Q. Your agreement with the company is not a conditional or contin-
gent employment ! — A. No, sir.

Q. For a sum certain ! — A. No, sir; it is not for any sum certain. I
have no agreement with the company, but any services I can render do
not give me any interest in the award — are not dependent upon that at
all. What my services in the affair are worth I expect they will pay.

Q. Mr. Baldwin has testified to some money having been paid yon
out of this award. — A. Yes.

Q. How much was that! — A. Paid to me out of this award ! I think

Q. When was that paid! — A. That was paid to me in 1879, I think.

Q. Did you have a conference with Mr. Exall before he wrote this
affidavit, that you say was in his handwriting originally ! — A. Yes, sir.

Q. Was it an extended conference! — A. I went to his house in the
evening. It lasted an hour or so.

Q. Did you have then any copies of the letters that he was said to

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have written to the company from Mexico t — A. I had made memo-
randa from the little pamphlet that I had put in my hands here, bat
which I left behind me here. I had jotted down the dates of some of
the letters, and to and from whom, and some expressions in them. I
told him the contents of those letters, as well as I could, and gave him
the data I had.

Q. And it was upon your statement to him that he predicated this
affidavit in explanati()n of these letters f — A. Yes, sir; my statement of
the appearance of these letters here and what they contained, a« nearly
as I could state to him, and the memoranda I had made of the lettero
predicated that.

Q. At what place was this affidavit prepared? — A. lean not tell at
what place he drew it. He may have drawn it at his place of business.
My conference with him was at his room in East Twelftii street.

Q. How long was it after this that he appeared with this letter that
he swears tof — A. This statement?

Q. Yes. — A. Well, I should think three or four days. It was not the
next day, I know. A few days elapsed.

Q. Was anything pending before the Senate or House of Bepresenta-
tives at that time relating to this award ? — A. Yes.

Q. What was it ? — A. It was the bill which subsequently became the
law of June 10, 1878, for the distribution of the moneys from this award.

Q. Now, was any committee of Congress in charge of that measure
at that time? — A. I think it had been before the Committee on Foreign
Affairs in the House.

Q. Who was then chairman of that committee? — A. I think it was a
member from Maryland; I think Mr. Swann, I think, was chairman of
the committee.

Q. Was any investigation being conducted by that committee in re-
spect of this claim? — A. I think a subcommittee of that committee;
yes, sir.

Q. Were they examining witnesses ? — A. No; I don't think they took
any examination of witnesses, but it was mainly arguments of counsel.

Q. Did you take this affidavit of Exall's before that committee?— A.
No, sir.

Q. Why not ? — A. Because it was drawn with a view to meeting
Slaughter's petition, and that petition was never presented, and I think
that the subcommittee had made its report; reported the bill and fin-
ished its business ; reported it to the House.

Q. Is that petition anywhere in this record ? — A. Of Slaughter's, no,
sir ; I think not.

Q. Are you certain that the petition never went before the committee
or subcommittee of the House of Representatives ? — A. I have never
seen that it did ; never saw any record that it did, and understood at
the time from people who were conversant with the mode of proceeding
that it never was presented. It was circulated rather privately among
the members, and one of them fell into the hands of Mr. Bartholow, who
showed it to me.

Q. At the time you had this consultation, or conference, with Exall
about the letters that he had written from Tayoltita, was this double-
column statement of the Mexican case in existence? — A. Not to my

Q. You don't know whether it had then been presented to the State
Department? — A. I don't know anything about that. It was not then
known to me.

Q. Was the pamphlet of Slaughter the only allusion that you knew

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of to letters that purported to come from Exall t — A. The first and
only one.

Q. Why did you make a copy of this affidavit!— A. This here 1

Q. Tes. —A. Because I desired to keep a copy of it.

Q. When did you make itt— A. One or two days before it was filed

Q. In 1882 1— A. In 1882.

Q- You stated, if I understood you, that you presented that affidavit
at that time because you understood that a treaty with Mexico was then
pending before the Senate Committee on Foreign Relations! — A. I
understood so.

Q. And you handed it to Mr. Pendleton ; Mr. Shellabarger handed
it to Mr. Pendleton in your presence! — A. He went inside. I did not
see to whom he handed it. I staid outside the door, and Mr. Shella-
barger just stepi)ed in. Mr. Shellabarger can speak on that point.

Q. Was Exall living at that time! — A. No, sir. He died, I think, in
the latter part of 1878.

Q. But he was living at the time that this first investigation was
going on in the House of Representatives ! — A. He was living at that
time ; yes, sir. Before that committee reported the bill, and at the time
that the committee reported the bill, he was living.

Q. Well, was there any reason why you did not present Mr. Exall to
that committee, and have him examined! — A. We did not know any-
thing about those letters until after that committee made its report and
this bill was in the House of Representatives.

Q. That bill then came over to the Senate, did it not ! — A. I think it
originated in the House.

Q. And then came to the Senate!— A. 1 think that one was intro-
duced in the Senate, too, at the same time.

Q. Was there any investigation in the Senate of the facts and cir-
cumstances ! — A. Kot that I ever knew.

Q. Well, did these letters of Exall, in printed form or in any form,
come before the committee of either house prior to the passage of the
act of Congress to which you refer, distributing this award ! — A. Not to
ray knowledge. I should feel quite confident in saying they had not,
but I have no knowledge of it, however.

Q. Now, I will get you to state your best recollection of what it was
you told Mr. Exall those letters contained. — A. At the time when he
made the statement! Well, sir, I can not give you the dates of the let-
ters, but I told him in a general way that those letters contained state-
ments that the ores were not valuable.

Q. Let me ask you, did you only make a statement to him in a gen-
eral way or did you make specific statements!— A. No; I did not pre-
tend to make specific statements.

Q. Well, awhile ago you said you copied out parts of the letters! —
A. I copied out some expressions.

Q. Well, what I wish is a statement of your best recollection of all
you said to Exall in respect to those letters — the whole of it. Just go
right through now and state it in your own way. — A. I stated to him
that there appeared to be certain letters from him written to Mr. Garth
as treasurer of the company, and that those letters contained statements
in them that the ores at the mines in Mexico were of little value; that
there had been no trouble down there with the authorities ; that he had
been embarrassed for want of funds — well, I can not give you it in much
more specific form than that. The general upshot of it was that the

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company was without valuable property down tbere, and that his letters
tended to show it; and that they were without means down there, and
that his letters tended to show that ; and that there was no diflBculty
with the people about titles or anything else of that kind, or any aban-
donment; that he had written to Mr. Garth that if he did not intend
to let the property goto the dogs down there he must send some money.
I can not remember all I said, nor give you now anything nearer to it
than that; that I certainly said to him the statements in those letters,
if those letters were written by him and the statements were true, con-
flicted with the statements that he made in his depositions for the com-
pany, and that if those were his letters, and the statements were true,
I wanted to know it; and that if they were not true I wanted him to
tell me what his explanation of them was, if they were his letters.
That is as near as I can now tell yon, Mr. Senator, about this. I have
no doubt that I gave him something more, particularly of the expres-
sions in the letters, but I conveyed to him the impression as strongly as
I could that those letters, in my opinion, went counter to his affidavits,
and I wanted to know what the truth was about them.

Q. I suppose that, as a lawyer, you selected out the points that you
thought were the most essential for him to reply to f — A. Well, itshowed
most conclusively that his depotfitions would not be true if the letters
were true.

Q. And you stated to him what these points were, in the language of
the letters, as you saw them in Slaughter's petition ! — A. No, 1 did not
use the language of the letters, except that I jotted down a few expres-
sions that struck me as peculiar.

Q. Well, can you recall any of those expressions f — A. One was about
its '* going to the dogs; " did not want the property to " go to the dogs'^
struck me as a peculiar expression and made an impression upon my
mind; and send him some money; wanted to know the intentions of
the company in regard to it, and another thing is there is no difficulty
about titles or anything else; it was only money.

Q. Did you inform Exall that his letters, if genuine, contradicted his
deposition given before theOommission? — A. I suppose I did that, yes ;
in this way: 1 told him if these letters were genuine, or if the state-
ments in them were true, that then they conflicted with his depositions.

Q. Did you say anything to him about a threat that Slaughter had
made that he intended to prosecute him for perjury f— A. I had not
heard anything about that; I never said anything to him about it.

Q. You had not heard of that? — A. No, sir.

Q. Well, you knew that Exall was amenable for perjury if his letters
were true! — A. Well, if his Jetters were true I should say his deposi-
tions were not true.

Q. Could not be ? — A. It did not seem so to me. That is what I
wanted to know. One or the other did not seem to me could stand, and
I wanted to know what the fact was.

Q. And you thought that the subsequent affidavit of Exall would
annul the effect of the letters and would explain his depositions f — A.
Yes, sii ; I thought it would. I thought that if the facts were as stated
in this last deposition, you mean ?

Q. Yes. — A. That if the facts were as stated, it would explain his letters.
Of course, it left him in rather an unpleasant position himself as to his
acts down there, but if the facts were as explained in that affidavit, I
thought that explained his letters.

Q. Now he seems to have spread his answer out in this statement
very much broader than any statement you have any recollection of

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having made to him ? — A. Well, I can not say as to that. I have stated
as near as I can remember.

Q. Did you and Exali have any consultation about what was the
general scope of the statement he should make ? — A. No, sir ; simply
he made a verbal statement: that is, a disjointed statement.

Q. Was Exall a lawyer T-^A. No, sir ^ but a man of considerable
literary attainments.

Q. Then after you had seen this paper prepared, or he brought it to
you prepared, you re-arranged certain paragraphs or sentences in it! —
A. I suggested to him that he transpose certain of the paragraphs.

Q. Did he do so 1 — A. He did.

Q. Now, which paragraphs did he transpose f — A. I can not tell you^

Q. But, looking over this affidavit now, which you have carefully
copied out and studied of course, can you state to this committee what
paragiaphs of that paper were transposed under your advice ? — A. No,
sir ; I could not. It would not be possible for me to do it.

Q. So that you do not know that this affidavit expresses exactly the
train of thought that passed through Exall's mind at the time he origi-
nally prepared it 1 — A. I suppose it did. I know nothing to the con-
trary of that

Q. Do you undertake to say that, in the transposition of those para-
graphs or sentences that there was no change in the drift or meaning
of the entire paper ?— A. Not that I am aware of. No, sir.

Q. It was a mere question of style, then, was it! — A. It was a mere
question of arrangement.

Q. Arrangement ¥ — A. Yes. My recollection is that I thought the
narrative would be more consecutive if he would transpose some para-

Q. Now, if he had all the same facts of the narrative, as transposed,
that were in it as it was before, what was the necessity of making any
transposition at all ? — A. No occasion for it except

Q. It was mere harmony of expression you were consulting at that
timet — A. That is all. I thought it would make a more consecutive

Q. Did he take that paper and write It over, or transpose the words
by interlineation f — A. No, sir ; transposed there, and rewrote the paper.

Q. Afterwards! — A. Yes.

Q. Did you compare the transposed paper with his original statement
made to you f — A. No, sir.

Q. How long after the original draft was prepared was it before the
transposition was completed! — A. It might be three or four days.

Q. Did you have any conference with Exall in that interval ! — A. No,

Q. Not at all! — A. No, sir.

Q, He brought it back to you in the shape it is now f — A. Yes, sir.

Q. And you are prepared to state, 1 suppose, that no new facts went
into it ! — A. Not to my knowledge ; no, sir.

Q. Well, but you saw both papers, and you suggested the rearrange-
ment. Now, are you prepared to say that no new fact went into it ! —
A. Not to my knowledge or belief.

Q. It was literally in the same words it was originally drawn in f —
A. Yes, sir; I so supposed

Q. Except the allocation of the sentences! — A. Yes, sir; and except
that I suggested that he address it to the company instead of address-
ing it to me.

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Q. Then yoa made no use of that paper before the passage of the act
of Congress reqairing the distribation of these awards f — ^A. None wha^
ever. '

Q. Did you then expect you would ever have a use for it f — A. I did
not know I would ever have any use for it; no, sir. I had no expecta-
tions about it one way or the other.

Q. Well, why did you regard it as being so valuable a paper as that
you shoula make an exact copy of it before you would venture on bring-
ing it here and put it into the hands of the Foreign Relations Commit-
tee of the Senate f — A. Well, sir, I think the fact that it got lost is
almost an answer to that.

Q. Well, that was a subsequent fact. I wish to know the facts that
were operating in your mind at the time you made a copy f — A. I wished
to keep a copy, thought it might som etime become important, and I
wanted a copy when it was filed here. I did not know anything about
your mode of filing or preserving papers.

Q. You did not know that any treaty was pending to which that was
applicable T — A. I have always understood that a treaty was pending.

•Q. But you did not know that the paper would be of any value to
the committee f — A. I supposed it would be of value to them, or else
Mr. 8hellabarger would not have advised me to file it. It was upon
his suggestion that it was filed.

Q. Was anything said to Mr. Exaii in all of these interviews with
you, in respect of any possible danger that he might have encountered
by his giving a deposition that needed to be supported by additional
statements? — A. No, sir; nothing of the kind.

The Chairman. Do you wish to ask the witness anything, Mr.

Mr. Foster. No, sir.

The Chairman. Mr. Kennedy, is there anything further!

Mr. Kennedy. Just one question if you will kindly put it; that is,
what is the habit of Mr. Ely in regard to copying documents that he
has had to do with as an attorney, or in any official capacity T

By the Chairman :

Q. Mr. Kennedy asks me to inquire what is your habit in regard to your
making copies of papers that you think may subsequently become valu-
able f — A. That is a habit almost any lawyer has. 1 have that habit.

Q. Well, was this a matter of habit on your part that you copied
ExalPs deposition f— A. No, sir; I should not say it was ; that I might
have another copy of it, but the habit may have operated to some extent.

By Mr. Kennedy :

Q. Do you know George W. Kittelle I — A. I do; yes, sir.

Q. When did you become acquainted with him f — A. About the year
1850, 1 should say.

Q. Do you know William S. Weed? — A. No, sir; never saw him.

Q. What part, if any, did you take in bringing Kittelle and Exall
and Weed together? — A. Do you refer to any particular timet

Q. In January or February, 1878. — A. I called upon Mr. Kittelle,
after having had an interview with Mr. Exall, and requested Mr. Kit-
telle to act as hia friend in a negotiation which had been opened by Mr.
Weed with Mr. Exall.

Q. What was the purpose of the negotiation f — A. The purpose was
to procure

Mr. Lines. I want to enter an objection to this.

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The Chairman. What was the questiou ? I did not hear it.

Mr. Kennedy. The question was what was the parpose of the wit-
ness in introdacing Mr. Kittelle into the negotiation between Exall and

Mr. Lines. That I do not object to, Mr. Kennedy.

Mr. Kennedy. I think you are right, Mr. Lines.

Q. What was your purpose in introducing Mr. Kittelle into the nego-
tiation between Exall and Weed f — A. It was to see how far Weed
would go in his attempt to procure Mr. Exall's evidence against the
award and to ascertain who he represented, by whose authority he was

Q. Did yon make any affidavit of the part that you took in that al-
leged negotiation between Exall and Kittelle on the one hand and the
other parties f — ^A. I did ; yes, sir. Not very long afterwards.

Q. How long afterwards f — A. Well, it was perhaps a month or so

Q. Have you that affidavit or a copy of it with you f — A. I have the
original down at my room. I have a copy of it here; a written copy
made yesterday.

Mr. Kennedy. We would like to offer that affidavit in evidence or
examine the witness in regard to the substance of the affidavit.

The Chairman. Well, certainly an affidavit of a witness who is liv-
ing and on the stand ex parte can not be made evidence in this case.
Now you can proceed to examine him in your own way. If he wants to
refer to that or any other paper to refresh his memory it is all right.

By Mr. B^ennedy:

Q. Will you state in your own way just what you did in that negotia-
tion and what was your purpose in doing what you did ! — A. 1 called
on Mr. Baldwin, 96 Front street — called to see him rather on some pri-
vate business, no business relating to this affair of tbis company — and
he was absent ; and as I was coming out of his store Mr. Exall came in
and inquired if Mr. Baldwin was in, and I said ^^Noj 1 have learned he was
out of the city ; " and tbeu he said he wished to see me. We stepped up
into the main office and he then stated to me

The Chairman. You do not think Exall's declarations are competent.
It was not in the presence of any person even pretending to represent
the Mexican Government.

Mr. Foster. We object to that, Mr. Kennedy had better instruct
the witness not to violate that rule. We can not interrupt him in his
deaf condition.

Mr. Kennedy. I think, Mr. Chairman, if anything was afterwards re-
peated to Fisher or Weed, that that would be sufficient connection in a
negotiation of this sort to make this statement admissible.

The CHAraMAN. Well, you can proceed with what was said between
Weed and Fisher and this witness or Exall in his presence.

By Mr. Kennedy :

Q. The chairman rules that you can not tell what passed between
you and Exall when neither Fisher nor Weed was present. — A. Then I
have nothing to say about them. I never saw either of those parties ;
never saw Fisher or Weed. I have nothing to say about that.

Q. But 1 suppose you can tell what you requested Mr. Kittelle to do
in this matter ! — A. I requested him to be introduced by me to Mr.
Exall and to act as his friend in a negotiation which had been begun
with Exall by a detective named Weed, and can I state what was said
to me about the situation of the matter f

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The Chairman. No. Nobody was present representing the Mexican
Government. Of course that is not competent.

The Witness. I will go on and state what I requested him to do. I
instructed Mr. Kittelle to make no proposition to him of any kind, nor
to solicit interviews, but to get at the fact, as well as he could, who the
detective represented, and who was to be responsible for the large sum
of money which was to be paid to Exall in case he gave his evidence,
and that if he could not — in the ordinary course of any conversation that
there was between them— could not get it otherwise, then to ask that
question straight and direct ; that that was the point I wanted to get
at in the main.

Mr. Kennedy. I would like to ask him— just to bring out the fact,
but not what was said in the reports — whether Kittelle did make reports
to him of the various interviews.

The Chairman. You do not wish to bring out what was said at those
interview s f

Mr. Kennedy. No, sir ; just the fact of the reports.

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 140 of 156)