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ofiBcer and some of the workmen stated that they believed the company to be annex-
ionists; that it was therefore hateful to Mexico, and they thought it best to drive it
away from that mineral anyhow ; that, for this purpose, the authorities instigated the
laboring people, on the pretext of their wants, not to work for the company ; that he
further knew that the company' e ores were frequently stolen, and that it teas not legally
protected by the Gefetnra, where the superintendent usually made fruitless complaints of
ike thefts ; that that officer [the gefe] also gave him, deponent, to understand that he
had a special interest in the earpulsion and despoliation of the company, in which case he
intended to denounce the mines at Tayoltita, and he offered deponent a share in them,
which deponent refused, and reproved his condnct in permitting the operatives to
steal the ores, which they did with impunity, to the great responsibility of the au-
thorities of tliat department, who, eitner by their connivance or indolence, compro-
mised the honor and good name of the Republic.

It will be remembered that Marcos Mora, who was at that time about
to retire from the office of prefect, was the author of the order to the
company which has previously been mentioned, and that it was under
Mora's authority and an ^'uprising of the people" that Soto sheltered
himself for the orders which he had issued to the superintendent of the
miDM.



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1014 LA ABRA SILVER MINING COMPANY.

It appears that Chavarria had an interview with the incoming pre-
fect, who proved himself a worthy successor of Mora and a fitting ally
of Soto. Mr. Chavarria says (ibid., p. 388):

That he met Macario 01 vera on the road from San Dimas to Gavilanes; that they
couversed together upou the sabject referred to iu the question, and Olvera acknowl-
edged to hioi ihBplam andinteniioni existing at TayoItUa^on the part of4he authoritie*
and the operaHvea^ to tnjure and expel the Abra Company from their minee byintriguee.or
8Qch direct and indirect means as it wonld he impussihle for them to resist, and that
Olvera revealed to deponent that he was intereettd in that hoetility, and in combination
with the geie politico, whom he was going to replace, to carry oat the sinister projects
before referred to.

Mr. Chavarria gives the following account of a meeting of the com-
pauy^s Mexican workmen at the house where he and Mora were stop-
ping at Tayoltita {ibid., p. 388) :

Ilth. State whether Marcos Mora, the gefe politico, was visited on the second night
of their stay at Tayoltita, in July or August of 1867, at the house where they were
stopping, by any of the employ^ of the Abra Company, or any of the head Mexican
workmen who had been in the employ of the company f Also, state all that then and
there took place between the said employes and the gefe. Mora, as to their continu-
ing in the company's service ; state what the parties named did and said in yonr
presence.

Ans. That all the matters referred to in the question are true : that the greatest
disorder prevniled upon that occasion ; that the head miners, by order of Marcos Mora,
mutinied aj^ainst the Abra Company and the superintendent; they refused to work
any longer in the mines, which resulted in the continuance and increase of the robbery
of the oree, which was openly carried on in daylight, and in the presence of the sopeiin-
tendent.

Chavarria also testifies as to what Olvera and Mora told him in Du-
rango, after Exall had abandoned the company's mines and works at
Tayoltita, in regard to the cause of the abandonment (ibid., p. 388) :

12th. State whether, at Dnrango, or other places, yon have had any conversationa
with the said gt-fe politico, Marcos Mora, or his successor, Macario Olvera, since the
month of March, lt5(>8, touching the reasons why the Abra Silver Mining Company
abandoned their mines and property; and if so. then state all that the said gefea
politico told you, and others in your presence, prior and subsequent to the abandon-
ment of the mines, which may throw any light on the subject of the abandonment,
and the manner in which this was bjougbt about.

Ans. That subsequent to the time referred to in the question, he conversed with
Macario Olvera, iu Dnrango, and also with Marcos Mora, on his frequent visits to
him when he was in prison, and was told that the company had finally been com-
pelled to abandon their mines at Tayoltita, through the loss of their property, owing
to the concerted hosttUty against it in March of 1868.

Mr Chavarria also testified of his own knowledge to the failure of the
appeals which he made on behalf of the company to the national and
State authorities for protection against the wrongful acts of the local
magistrates at ban Dimas and Tayoltita {ibid., pp. 388, 389) :

15th Slate whether the protection of the national and State authorities was duly
and legally invoked on behalf of the Abra Silver Mining Company, at the end of
1867, to protect it against the unlawful attempts made against it and the robbery of
Us property by Mexirans at the instigation of the gefe politico of the district and the local
authorities at Tayoltita. If this be so, then state how you learned the fact^. Who
was employed by the company as its agent to represent the facts to the authorities f
Who was employed and acted as the company's attorney at the time the said protec-
tion was invoked f State what was told him, and what was done in his presence by
the national and State authorities when the said protection was asked for and in re-
ply to his petition.

Ans. That the matter stated in this question is true in all its parts ; that deponent
employed by Mr. Rice, of California, as Exall's lawyer, repeatedly solicited^ from the
State government protection for the Abra Company , to suppress the robberies and outrages
which the company were experiencing at TayoUita^ but all to no purpose, as, after innumera-
ble steps and measures, the executive of the State never even so much as requested the authori-
ties at San Dmas to comply with their duties. The only anstcer given was, that the govern-
ment of the State, at whosu head was Francisco Ortet de Zarate, in ld67. would not meddle
in private matters.



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LA ABRA SILVER MINING COMPANY. 1015

This corroborates Morals testimouy^ already quoted, on the same sub-
ject, and, with the testimony of the company's employes, conclusively
establishes the allegation of the memorial and justifies the umpire's
conclusion that the company was denied due protection in Mexico,

Mora was afterwards imprisoned for malfeasance in office and Olvera
was killed in a riot among the miners.

Proof that an immense quantity of ore was stolen.

Further testimony could be cited sustaining the allegations of the
company's memorial and of its last superintendent in regard to the
stealing of the ores, both before and after the abandonment. The wit-
ness, Cole, testified that he had '< frequently seen them (the Mexicans)
packing off said ores from the works of said company, in sacks upon
mules' back8, in March, April, and May, 1868" (ibid.y p. 363^, and, as
already noticed, Mexico's subagent, in her proceedings to subvert the
award, Mr. Alfred A. Green, who was at Tayoltita in January, Febru- *
ary, and March of that year, testifies to the same effect. But there is
a mathematical demonstration of the truth of the company's daim that
the best of the ores that were abandoned have been removed since the
abandonment. The quantity of ore left on the patios when the property
was abandoned has been estimated by some of the witnesses for the
Mexican Government as high as from 10,000 to 14,000 cargas. This was
the estimate of Mr. Jesus Torres (ibid.y p. 443).

No witness makes the quantity less than 700 or 800 tons. The umpire
found the quantity to be 1,000 tons. One of the three witnesses brought
up by the Mexican Government from Mexico in the recent investigation
testified before the subcommittee that the pile of ore at the hacienda
was ^^ the same size the last time he saw it as it was the first time " ^ that
"there is about 500 or 600 cargas ;" that he first saw it when he went
to work in the mines." This was in 1871, as fixed by the date of the
denouncement of "Rosario," including "La Luz" — the mine referred to
by the witness (Francisco Torres) which he worked in partnership with
James Granger, in whose name the denouncement had been made (ibid.y
p. 335). Jesus Torres swore that when the company abandoned the mines
in March, 1868, there were from 10,000 to 14,000 cargas of ore (most of it
he said was worthless rock) at the hacienda. Francisco Torres swears
that in 1871, about three years subsequent to the abandonment, there
were only 500 or 600 cargas left. What had become of all the rest!

The Report of the House Committee on Foreign Affairs in tfie Forty-ninth

Congress,

A careful examination of the evidence which was submitted to the
Joint Commission both on behalf of the company and the Mexican Gov-
ernment, and of the testimony recently taken by the subcommittee has
led the undersigned to the conclusion so forcibly expressed by Eepresent-
ative, now Senator, Daniel, in his report from the House Committee on
Foreign Affairs, of August 5, 1886, against any revision or disturbance
of La Abra award. The House committee's report seems all the more
impressive because it affirms the power of Congress to make provision
for a judicial investigation of the award, as provided in the bill now
under consideration (8. 2632), but concludes, upon the merits j that the
award should not be reopened. The letter- press copy-book and Exall's
letters were carefully examined, and their authenticity was not ques-



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1016 LA ABBA SILVER MINING COMPANY.

tioned by the committee. The report disposes of this featare of the
case as follows :

Saperintendent Ezall's contradictions of his testimony as rsTealed in hia lettei%
now produced for the first time, are given neat importance, and stress is laid npon
them as imputing that his testimony was fabe and the claimsof the company poiely
pretentions.

It shoold, however, be remembered that Exall was acting for his own interest, and
that his letters conformed to what that interest seemed to reanire. He was a cr^tor
of th«» company. He was in Mexico, and needed money, and as an indncement to the
company to send him money he apparently colored the facts he recited in his newly-
presented letters under the impulses of the moment, and described conditionato suit
his necessities. We can not Justly hold the compiuiy responsible for his course any
more than we could j ustly hold a nation responsi ble for the conduct of a traitor. True,
his testimony is apparently discredited, out he i$ dead, and explanations which, if
liviog, he.ouffht to make are wno imposHbls, But, did this case rest upon his testi-
mony, it would be nevertheless discredited, and in our opinion it should be disre-
garded ; and, disregarding it, there is an dlmndance of eound tettimomy to muiaHn As
award.

The explanatory affidavit made by Exall shortly before he died, and
which is now in evidence and has been considered at length in this re-
port, was not before the House committee, the original having disap-
peared from the files of the Senate Committee on Foreign Belations, to
whom it had been presented in Angnst, 1882, and an examined copy
not having been produced and proved till the recent investigatioa.
(Appendix, pp. 939-^41.)

The grounds on which the House committee reported against any
interference with this award are summarized by Mr. Daniel as follows:

Undoubtedly some of the items of the large claim asserted asainst Mexico by the
La Abra Company are shown to haye been exaggerated and others unfounded. But
this remains when all that can be reasonably said in favor of the interference pro-
posed has been considered^ that there woe ample evidence btfore Sir Edward ThormUm
that i» not impugned by any new evidence to have sustained and warranted his award; that
the award did not embrace damages on account of the items that have been surcharged
or apparently falsified ; that that award was far below what was claimed ; that it was
far below in amount the damages which, in the opinion of nnimpugned witnesses, the
claimant's company suffered ; that it did not embrace speculative damages ; that the
mistreatment '>f the company by Mexican officials and people is proved by their own
testimony, and that (conceding aU that by reasonable intendment the newly-dis>
covered evidence proves) the award made had ample foundation in testimony not
successfully impeached, and was not in excess of fair compensation for losses suffered
according to that testimony.

The United States has never undertaken to be themselves the Judge of the legiti-
macy of these claims, nor could they do so. Thoy were a party to the arbitration, not
the arbiter. The legitimacy of the claims was the very question submitted to the
court of arbitration under the treaty ; and while it is true that with an exalted and
refined sense of honor, which of its own intuitive impulse refuses the fruit of wrong,
the United States will interfere to arrest palpable frauds and impositions practiced
by or for the benefit of its citizens. It is also true that they should not attenuate
that sense of honor into a Quixotic spirit, and exert their powers to override the most
sacred settlements not palpably or apparently obtained by fraud. Were this case re-
opened hyany form of procedure, abundance of evidence would be found unimpeached
in the records before Sir Edward Thornton to Justify his judgment. The new case,
like the old one, would be a case where truth had to be sought under a mass of
contradictions, and at the end of it — whatever that end might be — there would be as
much room to question the propriety of the decree as there is now.

Indeed, such a ease as this can never be ended save by thefinalitp that belongs to adjudi-
cation, Affldavi ts and counter affidavits — allegations of intimidation and extortion —
recantations and recriminations and reassertions bestrew the record, and no one who
reads its heaps of testimony (taken without regard to technical rules, and with no
sort of discrimination between direct and hearsay evidence) can reach any other con-
clusion than that the details of exact truth are impossible of ascertainment, and that
any decision should be predicated upon the few landmark facts which are established.

1 his Sir Edward Thornton evidently well appreciated. He did not discuss the mi-
nut is of evidence, or refer to that of any single witness. He did not award the specu-
lative damages claimed, or follow counsel in any of the niceties of their argumenta-
tion. With the spirit of a wise chancellor he looked at the facts which rose up out of



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LA ABRA SILVER MININO COMPANY. 1017

the debrii of testimony, And upon them rested his Jadsment. Those facU remain, and
that judgment, in our opinion, should eland f find we faTi to see that 'the honor or con-
science of the United States is concerned to disturb it.

Mexico had fail and fair hearing. The great mass of cases was decided in her favor,
and the only maxim which we conceive is now wisely applicable to this claim is thai
which tells ns it ie to the interest of the Commonwealth that litigation should oease.

The course pursued by the Mexican Oovemment in endeavoring to impeach

La Abra award.

By the treaty of July 4, 1868, providiog for the settlement of claims
of citizens of the United States against Mexico and of citizens of Mex-
ico against the United States, the two Governments entered into the
following agreement:

The President of the United States of America and the President of the Mexican
Repnblic hereby solemnly and sincerely engage to consider the decision of the Com-
missioners conjointly, or of the ampire, as the case may be, as absolutely final and
eoncluHve upon each claim decided upon by him or tbem respectively, and to give full
i^eot to euch decisions ufiihout any objection, evasion, or delay wkatsoerer.

The first installment was due upon the awards, and was paid by the
Mexican Government to the United States on the 31st of January, 1877.
On the 2l8t of Noyember, 1876, the Mexican agent, Mr. E. Avila, ad-
dressed a communication to the Mexican minister at Washington, in
which it was stated that at the meeting of the agents and secretaries of
the Joint Commission held the day before, the Mexican agent had pre-
sented certain statements in writing, with a view that they should be
inserted in the record of the proceedings of the day, but it was not so
done, because both the agent and the secretary of the United States did
not think it proper. One of these statements was a reservation of ^^ a
I ight on the part of the Mexican Government to show, at some future
time, and before the proper authority of the United States, that the
claim of La Abra Silver Mining Company was fraudulent and based on
atlidavits of perjured witnesses, with a view of appealing to the senti-
ments of justice and equity of the United Statues Government, in order
that the award made in favor of the company should be set aside.''
The minister inclosed a copy of Mr. Avila's communication to Mr. Ham-
ilton Fish, who was at that time Secretary of State, remarking ^^ that
the manifestations contained in the annexed note of Sr. Avila are in
accord with the instructions he has received from the Government of
Mexico.'' Mr. Fish replied to the minister on the 4th of December, 1876,
in a letter from which the following sentence is taken :

I mast decline, boweyer, to entertain the consideration of any oaestion which may



award

The Mexican minister replied on the 8th of the same month that there
was no intention to " put in doubt the final and conclusive character of
the above-mentioned awards;" that Sefior Avila had only expressed
the possibility that the Mexican Government might at some future time
have recourse to some proper authority of the United States to prove
that the two claims he mentioned were based on perjury, and that, "if
such an appeal should be made, it will not be resorted to as a means of
discarding the obligation which binds Mexico, and that, should it prove
unsuccessful^ the Mexican Government will recognize its obligation as
before."

On the 20th of December, 1876, Mr. Fish sent a dispateh to Mr. Fos-
ter, who was at that time ITnited States minister in Mexico, acknowl-



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1018 LA ABRA SILVER MDJINO COMPANY.

edging the receipt of a dispatch in which he had stated that the Gk>v-
erument of Porfirio Diaz had applied for a loan of $500,000, and had
represented that $300,000 of the amount would be payable to the Gov-
ernment of the United States in the course of the next month. Mr.
Fish inclosed with his dispatch to Mr. Foster a copy of a protocol, with
an account of the expenses of the Joint Commission, showing a balance
of $67,499.01 in favor of Mexico, and suggested that the Mexican (Gov-
ernment, if it chose, could deduct the whole of that balance from the
lirst installment of the awards payable to the United States. This was
done, the whole of its contribution to the expenses of the arbitration
being taken from La Abra award, and the first payment was made on
the dlst of January, 1877, as stated.

The contract of March 29, 1877, between the Mexican Oovernment and
(General James E. Slaughter ^ of Mobile^ Ala.

It appeared in the recent investigation by the subcommittee that
notwithstanding the positive refusal of Mr. Fish to consider any ques-
tion involving the finality of any of the awards, the Mexican Govern-
ment on March 29, 1877, entered into an agreement with General James
E. Slaughter of Mobile, Ala., in which he agreed, '< for the considera-
tions hereinafter named, to undertake the pro^ of fraud in the claim of
the La Abra Mining Company against the Government of Mexico."

This contract, it will be seen, was entered into by and between the
debtor Government of Mexico and a private citizen of the United
States, about six months after the umpire's denial of Senor Avila's
motion for a rehearing of the claim, three months after the aforesaid
notification from Mr. Fish, and prior to any distribution.

The contract further provides that General Slaughter shall '^send an
agent to Mexico for the purpose of securing testimony in proof of the
fraudulent character of said claim." Now, it will be remembered that
the Mexican Government was informed as to every witness whose tes-
timony had been taken in Mexico for or against the claim, and as to
what each deposition contained, and that it had the whole machinery
of its courts of justice to employ in the detection, proof, and punishment
of perjury if any of these witnesses had perjured themselves in their
depositions which were filed with the Joint Oommission. Why should a
citizen of the United States be employed in this business and why
should he be required to send a subagent to Mexico *' for the purpose
of securing testimony in proof of the fraudulent character of said
claim t" The contract also provided that Slaughter was "to pay the
expenses of such agent as far as the Oity of Mexico, and to secure such
assistance as may be necessary in preparing the evidence so obtained
and presenting the same to the proper authorities of the Government
of the United States." Why should Slaughter or any other citizen of
the United States be employed by the Mexican Government to do such
work in Mexico and to present the results to the proper authorities of
the Government of the United States! If the thing was proper or al-
lowable to be done at all should it not have been done by the Mexican
Government through its regular channels of communication with the
GovernmeJit of the United States! And was not this the very thing
that the finality clause of the treaty was intended to prevent!

In this contract with General Slaughter the Mexican Government
agreed to " secure the payment by said Government of all expenses in-
curred by the said agent of the party of the first part after he shall have
arrived in the City of Mexico^ to see that all facilities are furniehed by



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LA ABRA SILVER MINING COMPANY. 1019

^aid Government to enable him to secure the necessary testimony^ and to
pay by draft, payable as hereinafter specified, one half of the expense in-
curred by the said party of the first part in ih^ preparation of evidence
anci t\i^ presentation of the same to the proper authorities of the Gov-
ernment of the United States ; provided tllat such expense shall not
exceed the sum of $3,000 American currency.''

Under this contract, the like of which is probably not to be found in
the annals of diplomacy, the compensation of General Slaughter was to
be entirely contingent upon his success in accomplishing 'Uhe final waiver
or withdrawal of said claim or any portion thereof, as the case may be,
by said authorities of the United States Government.'' The a ward was
for $683,041.83. The general was to have 10 per cent, of this amount
or of any part of it which the Mexican Government might not be finally
required to pay. He would be entitled to more than $60,000 if the award
were entirely subverted, and his work was commenced and his contin-
gent compensation promised before a dollar of the award had been dis-
tributed. There was no fund for paying the subagent who was to be
sent to Mexico anything but '* expenses," and it is reasonable to sup-
pose that his agreement with General Slaughter for compensation was
also contingent in whole or part upon the success of the undertaking.
This contract, to which the committee makes no allusion in the majority
report, is printed in the appendix to this report and is well worthy of
careful study and consideration.

It will be remembered that the fisheries award, which was rendered
at Halifax under the treaty of Washington in 1877, was attacked in
the newspapers and in Congress as having l>een based upon fictitious
evidence which had been imposed upon the Commission by fraud and
perjury ; and that Mr. Evarts, who was then Secretary of State, pro-
tested against the award and contested its validity upon other grounds,
including the objection — fatal if sustained — that the Commissioners had
not confined their inquiry or their decision within the limits of the sub-
mission, but had taken elements of value into consideration which they
were not required or authorized to consider by the terms of the treaty.



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 150 of 156)