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 156 of 156)
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sought in a mountainous, almost inaccessible mining district in the State of Duraogo,
and among a semi-barbarous people, which (as is the case in all mining localities)
is a constantly changing population. After such a lapse of time in such a locality
and among snch a people and after the failure of memory, the disappearance and
death of witnesses, the taking of such testimony is palpably and literally impossible.
Add to all this the enormous expense attending the quest for evidence and the tak-
ing thereof, and it needs but be stated to any one having the slightest experience



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LA ABBA SILVER MINING COMPANY.



1065



regarding trials in human conrts to make it obvions that the obstacles to the prooure-
ment of such evidence (whatever the facts may be) are simply insurmountable.

But if these obntacles were not insuperable, the hostility of the Mexican officials
would be. Before, when there was comparatively no excitement about the case of
said company, other than such as resulted from the fact that the company was Ameri-
can, the quest for evidence had to be made under armed protection to the life of the
company's agent, and at the expense of an accompanying armed guard hired at the
sea-port Mazatlan. And to deter and prevent any testimony being given in favor of
said company, the Mexican Judge of that district threatened and intimidated the
witnesses who were brought before him by the company's agent; and he declared
that he would take no testimony for the company when its attorney was present, and
declared that none shonld be taken in his coart that would aid the company ; and he
incited manifestations of mob and other violence, such as endangered the life of wit-
nesses, attorneys, and others evincing friendliness to the company. Besides all this,
its witnesses were spirited away and kept from testifying. Ail these supremely dis-
graceful proceedings are matters of record, and are before you in the case. And now,
after the hue and cry which has been made abont this case, no witness resident in
Mexico, and especially in that district, who should hereafter testify the truth in favor
of this American company, wonld be permitted to live in that country, or dare to tes-
tify, and no man competent to ascertain and select the proper evidence would hazard
his life by g^i^S there and attempting to obtain it. The recent foul murder of the
superintendent of the min^s of an American company (Mr. Baldwin), situate in the
same State of Durante, and in the same general locality, " for no other crime than
that he was an American,'' is only one more of the many evidences that the hostility
in that district, which expelled the Abra Company, there still bears sway, and with
all the fullness of its pristine vigor.



The Presidenfs hands are not tied by the act of June 18, 1878.

[Extract IVom Beport Na 1630— Views of Minority— Senate, Fiftieth Congrew, llrat teuion, p. 112.]

In vindication of this position of the Judiciary Committee that said fifth section
was not intended to and does not bind the hands of the State Department regarding
the payment out of this money, I now restate some of the grounds in support of that
opinion, and, as a matter of saving labor, I state them in the language of counsel,
aildressed to your committee, in reply to a question from a member of the committee
asking whether said section five did not tie the hands of the Secretary of State.
That reply was in these words:

" Senator Morgan. You admit his hands are tied.

''Mr. Shellabaroer. No; but the President seems to take that view. By no
means — we do not admit it.''

So far from admitting it, we submit, with very sincere respect, that it is palpable
and literal upon the face of section 5 of this act of June 18, 1878 (20 Stats., 145), that
it does not. in regard to said matter of pairing out said money and executing the said
treaty, tie the President's hands. On this point please observe carefully the follow-
ing things:

(1) That the language of section 5 is expressly put in the shape of a request as dis-
tinguished from a command or law. The words are :

*" He (the President) is hereby requested to investigate any charffcs of fraud pre-
sented by the Mexican Government as to the cases hereinafter named, and if he shall
be of the opinion that the honor of the United States, the principles of public law, or
considerations of justice and equity, require that the awards In the case of Benjamin
Weil and La Abra Silver Mining Company, or either of them, should be opened and
the cases retried, it shall be lawful for him to withhold payment of said awards or
either of them until such case or cases shall be retried and decided in such manner as
the Government of the United States and Mexico may agree upon or until Congres.v
shall otherwise direct."

Thus you see the letter of the statute is, first, only a request to investigate; and,
secondly, only a permission or a making of it lawful for the President to temporarily
withhold payment.

(2) That even in the case of Key vs. Frelinghuyseu, in which Mexico takes such su-
preme delight, the court expressly takes the same view of this statute. The court
says, in so many words, speaking of this statute, that *^from hrginning to end it is, in
form even, wily a request from Congress to the Executive." Thus the court covers by
Its words " from beginning to end " every passage in this statute, including section 5,
and says of it that it is only a request (110 U. S., 74).



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1056 LA ABEA SILVER MINING COMPANY.

Theu the court, comiug more explicitly to this very aeotiou 5, says of it :

'*The fifth section, as we construe it, is nothing more than an expression by Con-
gross in a formal way of its desire Loot its command in the shape of a law] that the
rreaident will, before he makes any payment on the Weil or La Abra claims, investi-
gate the charges of fraud presented by Mexico.''

Thus you see the court says precisely what we say about this section 5, that it ia
not a command of law. but simply a recommendation. Then the comrt adds, on the
same point, same page, regarding' this law being only a request, these words:

** In our opinion it would have been just as competent for President Hayes to have
instituted the same inquiry without this request as with it ; and his action with the
statute in force is no more binding on his successor than it would have been with-
out."

Then, on top of the same page, the court indicates its opinion that any command
by Congress {vddressed to the President and the treaty-makins power would bean <ui-
croachment by the legislature upon the Executive power under this treaty.

The court says, speaking of this act of Congress :

'' But it manifests no disposition on the part of Congress to encroach on the power
of the President and Senate to conclude another treaty with Mexico in respect to any
or even all the claims allowed by the Commission, if in f^ir opinion the honor of the
United States should demand if

(3) Not only do the letter of the statute and this interpretation of the Supreme
Court show the President's hands are not tied by any prohibition against paying this
money and executing kie treaty, but the concluding sentence of the letter of Secre-
tary Bayard to the President, communicated to Congress in the President's special
message of May 11, 18ti6, shows that Mr. Bayard did not regard his hands as tied by
this statute two years ago. At that time he indicated his view of the President's
constitutional obligation to execute the laws of the land as follows :

**To relieve the action of our Government from any ambiguity of legislative ex-
pression or the Executive from any uncertainty as to the line of duty in relation to
the awards in favor of Benjamin Weil and La Abra Stiver Mining Company under
the treaty with Mexico pn>mulgated February, 1879 (1869), I suggest that the atten-
tion of Congress should bo earnestly invoked to the consideration of the present
status of these claims referred to and the duty of the Execui'fe under an existing treaty,
to which the force and effect of paramount law is giveu hy the Constitution ii the event of
the adjouf^ment of the two houses without further action in reference thereto."

(4) It is equally plain that if section 5 of this act of 187*8 ties the hands of the Pres-
ident at all, regarding the execution of this treaty, then the prohibition of payment
applies to the whole of the two awards, and not merely tu a part. Therefore, when
under the administration of the State Department by Secretary Evarts payments
were made, and when like payments were made under the administration of that
Department by Secretary Blaine, these officers violated the prohibition contained in
section 5, if such a prohibition exists.

Contract between General Slaughter^ of Mobile^ Ala.^ and the Mexican

Government

This agreement, made this twenty-ninth day of March, A.D. 1877, by and between
General James £. Slaughter, of Mobile. Ala., party of the first part, and Sefior Don
Ignacio Mariscal, minister of Mexico toithe United States, party of the second part.

Witnesseth, that the said party of the first part agrees, for the considerations here-
inafter named, to undertake the proof of fraud in the claim of the La Abra Minins
Company against tbe Government of Mexico, which claim is numbered four hundred
and eighty-nine (489) on the docket of the Joint Commission of the United States
and Mexico and has been adjudicated by tbe umpire of said Commission.

To this cud the said party of the first part agrees to send an agent to Mexico for
the purpose of securing testimony in proof of the fraudulent character of said claim;
to pay the expenses of such agent as far as the City of Mexico ; and to secure such
assihtance as may be necessary in prcpariuje the evidence so obtained and presenting
the same to the proper authorities of the Government of the United States.

The said party of the second part, aoting for and in behalf of the Oovevmnent of
Mexico, hereby agrees to secure the payment by said Government of all expenses in-
curred by tbe said agent of the party of tbe first part, after ho shall have arrived in
the City of Mexico; to see that all facilities are furnished by said Qovemment U> eu-
able him to secure the necessary testimony, and to pay, by draft payable as hereio-
after specified, one-half of the expenso incurred by the said party of the first part in
the preparation of evidence and the presentation of the same to the proper authori-
ties of the Government of the United States; provided, that such expense sbali not
exceed the sum of three thousand dollars ($3,000.00) American currency.

And tbe said part> of the second part further agrees, in consideration of the servicoB
above named, to naV to the said party of tihe first part, by drafts upon the national



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LA ABRA SILVER MINING COMPANY. 1057

treasury of Mexico, payable in Mexican gold ten months after presentation at said
treasary, a sum equal to ten (10) per centum of any portion of said claim which may
be waived or finally withdrawn by the proper authorities of the.Qovernment of the
United States, or of its total amount if it bo waived or withdrawn m the same man-
ner; said drafts to be drawn by the minister of Mexico at Washington immediately
upon the final waiver or withdrawal of said claim or any portion thereof, as the case
may be, by said authorities of the United States Qovemment.

In witness whereof we have hereunto set our respective hands and seals this twenty-
ninth day of March, A. D. 1877.

Jamss E. Slauobtbr.

laNACIO Ma RISC AL.



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INDEX.



Page.

Abstract of claimant's title to La Abra property 331

Certificnte of incorporation of claimant . 330

Depositions tiled by claimant Adams, Alonzo W 483

Alley, Nicholas 407

Avalos, Matias a57,399

Barraza. Pedro J. (certificate) 397,398

Bartholow, Thomas J 472

Bisael, George C 350

Bonttier,. Charles 380

Chavarria, Jesos 386

Clark, WilliamG.S 367

Cole, John.. 361

Collins, George C 344,453

Cryder,JohnP 374

Dahlgren. Charles B . . ! 401

Dana. Francis F 371

de la Peiia, Antonio 408

de Valle, Juan Castillo. 373, 382

Echegnren, Pedr<> 409

Ely, Sumner Stow 480

Exall, Charles H... 3;^6,455

Galan, Carlos F 492.493

Gamboa, Juan Francisco 366

Granger, James (or Santiago) - . . :r»2, 370

(exhibits referred to by him) 360

Green, Alfred A 340

Loaiza, Jose Maria 377

Martin.Ralph 466

Mora. Marcos 391

Smith, William H ... 346

Depositions filed by defendant Acosta. Francisco 443

Aguirre. Bernadino 423

Aguirre, Ramon . . 415

Arnold, Agasito 446.450

Avalos, Matias 437

Calderon, Aquilino 4lH, 4:^

Camacho, Patricio 413

Contreras, Camilo 440

Contreras, Emilio 446, 448

Delgado. Martin 432,441,448

de VaUe, Jnan Castillo 444,445

Fonseca, Refugio 416,420,434

1059



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1060 INDEX.

Depositions filed by defendant Galvan, Benigno 421

Granger, Santiago (or James) . . . 417, 425, 434, 435

Gnrrola, Paz. 440

Gntierrez, Dionisio 442

Jimenez, Maria Cecelia. . 419,431

Layeaga, Aroadio 446,449

(certificate) 433,442,449

Laveaga, Miguel 446,448

Manjarrez, Cepomuceno .. 446,450

Manjarrez, Ygnacio 417, 426, 446, 447

Martinez, Guadalape 432

Molina, Leandro ^ 423

Nunez, Pio Quinto 423

Rodriguez, Bartolo 419, 436, 446, 450

Rodriguez, Tomasio 432

Romero, Julian 424

Ruiz, Gil 440,441

Sandoval, Victoriano 436

Santos, Petronilo 422

Serrano, Andres 421

Sloan, N. A 426

Soto. Guadalupe 485,438,441

Torres, Jesus 444

Exhibits referred to in deposition of James Granger on pages 353-356 860

Incorporation of claimant, certificate of 830

Instruction to consul by State Department (in deposition of A. W. Adams) . 488

Letters of Bartholow, T. J 236

De Lagnel, J. A 260

Bxall, Charles H 302,332

Garth, D. J 318

GUleepie, Alex. S G87

Granger, Santiago (James) 150

Shellabarger & Wilson. 2,722

Orders from Mexican authorities to claimant 360,361,430

Rebutting testimony for claimant-
Deposition of Adams. Alonzo W 483

Alley, Nicholas 407

Bartholow, Thomas J 472

Collins, (JeorgeC 453

Dahlgren, Charles B 401

Ely, Sumner Stow 480

Exall, Charles H 455

Galan, Carlos F 492,493

Martin, Ralph 466

Record of case of La Abra Silver Mining Company v. The Republic of

Mexico, before the American-Mexican Claims Commission . . 327

Index to 500

List of assignments 935

Testimony of Baldwin, James G 745

Dahlgren, Charles B 643,659,688

De Lagnel, Julius A 6,10,25,39,74

Elder, A. B 546,553,561,592,630

Ely, Sumner Stow 989

Fisher, Thomas 878



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INDEX. 1061

Paj?e.

Testimony of Garth, David J Ill, 127, 145, 171, 224,824,826

Ilermosillo, Ramon 543

Kittelle, George W 766

Lines, Robert B 922

8i88on, Isaac 788,825

Slaughter, James E 911

Somero, Eugenie 532

Torres, Francisco 502

Tuttle, William P 22

Titles of (claimant to La Abra property, abstract of 1^1

S. Doc. 231, pt 2 69

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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 156 of 156)