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in sympathy with the legitimate Government of Mexico under President Juarez ; said
intetfecenee ooonrred at vorions times during the whole progress of the work while I
was superintendent, and we were finally compelled to abandon the company's mines
and property about March 20, 1868.

The military authorities of the Liberal Government of Mexico, or those acting in
that capacity, seized upon our mule trains on the road from Mazatlan to our mines in
the State of Dnrongo, loaded down with provisions and stores for the use of the em-
ploy^ of said company^ and they, the military, appropriated them to their own use,
upon the plea that they were not provided for, and mn^t have them as a military
necessity. Large numbers of our mules and thoasands of dollars worth of oar stores
and proviaions were captured in this way by the said military daring the progress of
the war there^

And finding it little or no better at the close of the hostilities, indeed it was even
worse in the mines, for then they seemed to turn their whole attention to what they
called a pnri>ose on our part to annex Durango to the United States. And it was in
▼ain that we protested tnat we had no such intention. The report had become gen-
eraU and we were fto horoHsed that it was impossiUe to continue our work with sa^ty,
OS I have before stated. The military under Maximilian frequently captured our mules
and stores in the same way and shamefully abused our men who were conducting the
trains. They assigned as a reason fbr so doing that we, the said company and its
employ^ were Republicans, and hostile to the interests of their so-called Imperial
Government, which was true.

And 80, between the two fires, we had no protection, neither of the contending par-
ties respecting our rights under the law, but both of them robbing ns. Large quan-
tities of silver ore was taken or stolen from our mines after we hod taken it out, and
fMioh w«re the threats ogfidnat us that we did not dare to go out and defend it, as we
would have been in great danger of losing our lives by so doing. The ores so taken
were the very richest, and those containing the largest amount of silver. The capt-
ures or robberies of our mules and stores, or which I have spoken, occurred at various
times during the latter part of 1866 and the eorl^ part of 1867 ; that is, the most of
them ooeorred during the times stated and principally by the Liberal authoritiee.

and also the next question and answer^ etc.
Senator Dolph, Ton hare read two already, Senator,
Mr. McDonald. I have read two. I want to read No. 8 and No. 9.



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224 THE J.A ABRA SILVER MINING COBfPANT.

Senator Dolph. No^ that is suflBcient to test the qaestion. I shall
decline to have that matter extended so as to go into the record any far-
ther in this shape until the question is passed npon by the chairman.

Mr. McDonald. Let me put the whole question.

Senator Dolph. No ; I decline to have it done. The examinatiOD is
adjourned until half past 10 to-morrow, when Mr. Morgan will pass
upon it.

The committee adjourned until 10.30 a. m., October 6, 1888.



United States Senate,
Committee on Foreign Relations,

Wii^hington^ i>. C, October 6, 1888.
The committee met pursuant to adjournmeut. Present: Senators
Morgan (chairman) and Dolph ; Hon. Joseph O. McDonald and Hon.
Samuel Shellabarger, of counsel, and Sumner Stow Ely, esq., secretary
of the La Abra Silver Mining (Company, and Hon. John W. Foster and
Bobert Py Lines, esq., representing the Government of Mexico.

TE8TIM0HT OF DAVID J. OABTH— Continned.

Mr. McDonald. I want to say this : That if the question in that form
is objected to, and the objection is sustained, I expect to ask the witness
in detail on cross-examination what was said by Exall on his retarn to
New York to him and his associates, and if he did not say so and so,
and state the substance of what it was.

Senator Dolph. That is to say, you propose to ask the witness if on
his return from Mexico Exall did not state, taking it by paragraphs,
what he has stated in this deposition that was used before the Mexican
commission and taken in 1870!

Mr. MoDoNALD. Yes; if that is not substantially what he said to him
and his associates on his return, and I ask that for two purposes : in
the first place to get at, as near as I can, the precise statements made
by Exall to the La Abra Company in New York, and, in the next place,
as sustaining Exall, so far as the present examination is intended to
impeach him, by showing that he made other statements at other times
corresponding in substance and effect with the statements that he made
under oath.

Senator Dolph. This question arose in this manner: Ex- Senator
McDonald, one of the counsel for the company, said to the witness :

I want to read to you the qiiefltious and anBwers in the first part of the depoi»ition
of Charles H. Exall, taken in this case, and ask you if the representations made by
Charles H. Exall when he came to New York corresponded with what he stated in this
deposition. That is exactly what the chairnaan asked him in reference to another
matter. He asked wherein it differed at all 'from the statement contained in that
letter.

Mr. McDonald. Not in the letter ; in the report, or whatever was
made by him, on the day of his arrest, to the political chief of Darango.

Mr. Foster. It is a letter.

Mr. McDonald. Well, I wanted it defined ; that is all.

Senator Dolph. I would like to proceed with my statement in this
matter and give my views apon it, and if there is anything that is iucor-
rect in the report of the matter by the stenographer, which I read from,
it can be afterwards corrected.



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THE LA ABBA SILVER MINING COMPANY. 225

After some remarks by the couusel on both sides, I being the only
member of the committee present, said :

I think I woold role that oot as not a proper oonne of exunination, bat I am en*
tirely willing to leave it to Senator Morgan.

8ome discussion followed and the question was waived for the time
being, and some other questions asked the witness when Senator
McDonald said to him :

I want to read theee two qneetions and answers.

Whereupon the Senator read questions 6 and 7 and the answers in
what purports to be the deposition of- Charles Q. Ezall, which is docu-
ment No. 9 in the case, numbere<i 489, of the La Abra Silver Mining
Company vs. The Bepublic of Mexico, under the treaty of July 4, 1868,
and covers nearly two pages of that printed document ; the questions
and answers referring to the circumstances under which the mine of the
company was abandoned in Mexico. Then the Senator said :

And also the next qneetiou and answer.

Mr. McDonald. Well, Senator, just allow me to say I will withdraw
that part of it. I am content with the two questions and answers.

Senator Dolph. Just let me make my statement. Whereupon Sen*
ator Dolph said:

Ton have read two already, Senator.

And Mr. McDonald said:

I haye read two ; I want to read Nos. 8 and 9.

Senator D01.PH. No, that is snflQcient.to test the question. I shall decline to have
the matter extended any fhrther so as to go into the record in this shape nntil the
question is passed npon by the chairman.''

Mr. McDonald. Let me pot the whole question.

Senator Dolph. No, I declioe to have it done. The examination is adjourned until
half-past 10 to-morrow, when Mr. Morgan will pass upon it.

The only reason given for this course of examination was that the
chairman had, in the examination of this witness, read to him certain
portions of a letter of Mr. Exall to a third person, and asked him if the
statements contained in the letter were true, or corresponded with the
sti^mentof Mr. Exall upon his return to New York. So far as I am
concerned, I do not consider it necessary to pass now upon the question
as to whether that was a proper course of examination. It will be
proper in order to determine what is a proper examination of this wit-
ness to consider, in the first place, who he is, and what relation he bears
to these transactions under consideration. It appears, from his testi-
mony and from other testimony, that he was one of the promoters of
this mining company; that he went to the Mexican mines in connection
with Mr. Bartholow and they were purchased through him in part; that
he was a large stockholder of the company ; that he was for some years
treasurer of the company ; that it was through him that the correspond-
ence of the company in New York was carried on with Oeueral Bar-
tholow, with Mr. De Lagnel and Mr. Exall, the superintendents of the
company in charge of the work at the mine.

It appears further that he is still the owner of thQ stock of the com-
pany he originally subscribed; that the company is indebted to him in
a large amount for advances he made to the company, which are now in
judgment, having been transferred to his brother and the suit having
oeen brought in his brother's name ; that the company still owes him
for moneys advanced to it for the purpose of prosecuting the litigation
before the Mexican mixed commission ; that after these demands against



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226 THE LA ABRA SILVER MINING COMPANY.

the compaDj are paid he will be entitled to share in this award, if it is
paid and distribated, to the extent of his ownership of the stock of the
company. He is called, as I anderstaud, by the committee to give his
testimony, and on account of his interest in the subject-matter, is an in-
terested witness, and for that reason some more latitude might be in-
dulged in by a committee of the Senate who are after information upon
this subject than would be proper in a court of justice.

I mention this to' show that this is not an ordinary case of direct and
cross-examination in which the rules of evidence should be strictly ap-
plied. The witness has been examined in regard to oertain letters
written by himself, the authenticity of which he admits; and certaiD
letters, copies of which are produced in the copy-book, written by De
Lagnei and Exall, which he admits to have received — all, I think, ex-
ce)>t those >that are not mentioned in his letters wbich are produced.
If those letters are to be relied upon as genniue lerters written at that
time, as a true expression of the condition of the company, without
stating how far they are in conflict with the answers of Exall read by
tUe counsel as a part of his question, they certainly go to a considerable
extent to show that the statement of the witness Exall in 1870, before
the commission, is contradicted by his own letters and by the state of
afi'airs of the company, as shown by those letters.

I'his witness has been very thoroughly examined by the chairman of
the committee in regard to ExalPs statements made after he returned
from the mine to New York. It has been many years since the state
ments were made, and it is quite possible and very probable that the
witness does not now remember, with any degree of precision, what
was stated by Exall. It is of course •])ossible that Exall, immediately
after writing the letters which appear in the letter-book, made a state-
ment to the witness that would correspond with his statement before
the commission; and it is also possible that he made statements when
he returned, to the company, which corresponded with his letters ; of
the actual condition of the mine as disclosed by those letters. It is
possible that this witness confuses statements that were made some
time afterwards in the litigation with statements made by the witness
immediately after his return. So, without criticising those statements
or now passing upon the importance of the fact that Exall did or did
not make the precise statements after his leturn which he made in his
testimony, I will come down to the question as to whether this course of
examination, which is to read to this witness now, while he is beiii^ ex-
amined on behalf of the company, the statements contained in a depo-
sition of Exall made some two years after his return and to aek him
whether or not those statements correspond with his statements made
to the witness after his return from Mexico.

I have |)racticed law a good many years ^nd I thought I was familiar
somewhat with the rules of evidence. I have never yet known of that
course being permitted. There could be no objection to this witoees
being allowed to restate ^m his recollection as often as is reasonable
what Exall said to him on his return. If he made any memorandnm at
the time while the matters were fresh in his mind, that memoraadum
might be shown to him for the purpose of refreshing his recollection.
If he wrote any letters at the time containing a statement of facts de-
rived from Exall, he might be permitted to refresh his recollectioa by
them, but to show him the statement of a third person for the porpoae
of asking him whether or not that person made similar stateoients to
him some years previously I think can not be done and ought not to be
done and'would not assist the committee or Congress in ardving at the
facts in this case.



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THE LA ABBA SILVER MINING COMPANY. 227

When it was saggested, I intimated that I would not permit that
coarse of examination to proceed, and after connsel had read two of
these long questions and answers and proposed to read two more, I felt
compelled to stop the examination until the chairman was present* I
bold that Uie questions can not be answered. If counsel thinks that he
has a right to do so and that anything will be gained by patting qaes-
tions to the witness contaiuing the statement of Exall in his deposition
in paragraphs without stating from whence they are taken, it will be
time euough to decide the extent to which that examination will be per-
mitted to proceed after the questions are proposed.

Mr. McDonald. Mr. Ohairman, the statement made by Senator Dolph
of course is substantially a correct statement of this question and the
manner in which it arose.

Mr. Shellababoeb. Excase me, Senator, yon are wrong in one part
of your statement., and I only mention it because it is important, if
there is anything important in this point. Yon have stated there that
we placed it upon the ground that the chairumn had asked whether the
representations made by Exall when he returned to New York corre-
sponded with certain passages that were re^ by the chairman firom the
letters of Exall. 1 think you got it about that way.

Senator Dolph. How is that f

Mr. MoDoNALD. Well, I was going to refer to that. He spoke aboat
that as being the ground upon which we asked these questions to be
propounded. I did of course refer to the rulings that had been made,
or to the course that had been pursued in the examination of the wit-
ness by the chairman of the committee, which I was not criticising at
all, and which I admitted to be correct by making no objection to it at
the time. It was certainly an important matter, and so esteemed by the
chairman and by the committee, to know what Exall did reffort, and
again when he came to New York from Mexico after leaving thero,
either abandoning the mine, or coming away voluntarily what he said
to the witness and his associates as to the cause of his leaving, and in
order to get down to the point as closely as possible, the chairman read
to him a statement made by Exall on the day of his arrest. It did not
appear at what hour of that day, but it was on the day of his arrest, be-
cause he states; ^^This morning at 11 o'clock this man appeared," and so
and so, and asked him if that did not contain the statement that Exall
made as to his arrest and imprisonment; and if not, in what respect it
differed from the statement made by him. The witness gave his nnder-
standing of it, and it is in the record. I do not care abont repeating it,
but it was certainly not assenting to that as the statement made by Exall.
Now, then, in pursuing that same thought and endeavoring to reach
that same point I turned to a deposition which Exall made in the prog-
ress of the case before the commission when it was being heard, and
I read two questions and answers, and asked him if they do not con-
tain the statement made by Exall substantially to him and his associ-
ates upon his return, or, if it does not, I propose to ask him in what ma-
terial it differs ; how far it differs. Now Senator Dolph says that to
him that is an unheard-of coarse of practice, and refers to the relation-
ship whidi this witness bears to this case as having some bearing upon
oar right to submit what I would call direct questions, leading questions.
He has been examined in that manner and form oy the chairman of
the committee and no objection has been made to it.

Senator Dolph. The objection to this question is not that it is lead-
ing.

Mr. McDonald. I propose to ask him leading questions.



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228 THE LA ABRA SILVEB MINING COMPANY.

Senator Dolph. You have been doing that without objection.

Mr. McDonald. Then, if we have that right to ask this witness lead-
ing questions, I insist that the question we submit is a correct one ; that
in asking leading questions we have a right to st.'ite the question to
the witness and ask him whether it is not true, either in separate
paragrapiis or embracing the entire subiect upon which we are tak-
ing his judgment and recollection, and I insist that that practice is in
the courts I have practiced in universallv recognized that in askiug
leading questions you have a right to 8U»te the precise question ; pat it
in form just as the chairman did yesterday. I think his examiDatioD
was entirely coiTect, assuming the right, as he did, to cross examine
this witness, which I concede a perfect right to do ; a perfect right to
cross-examine him, on account of the relationship and his supposed
bias in the case. If it had been before a court that a witness of that
kind had been produced, counsel on showing that fact or stating that
fact would have had authority from the judge to make his examination
a direct one from the start, and I simply, for the purpose of saving time,
put this inquiry into as near the same form as had been observed in the
previous examination as I could. That is all there is of it.

Mr. Shellababoeb. ^ow, before we go away from this and before
the chairman makes his statement, if he proposes to make any, I want
to add to and finish the statement I began to make a moment ago. I
did not in the statement I made, Senator Dolph, yesterday to you place
it upon the analogy there was between what had been done by the ex-
amination of the chairman and what was sought to be done yesterday.
I did not place the analogy at the same place where Senator McDonald
places it now. What I said the question was analogous to that was
asked yesterday was that part of the chairman's examination where
he asked the witness in substance, as the record will show, how the
representations made by Exall when he returned to New York corre-
sponded with the letters that had been put in evidence and written by
Exall to ^ew York. To refresh your memory about the fact that that
was the occurrence you remember we made an objection, and at last I
said to the witness, ^' Now, before you answer that question you have a
right to read through that entire mass of letters that you are asked to
contrast the contents of with the statements made by Exall when he
returned to New York." Now, there is where 1 found the analogy. I
think the question that we asked yesterday was in its legal effect quite
equivalent to those of the description that I have now stated.

Senator Dolph. You refer to what purport to be Exall's letters to
this witness f

Mr. Shellababoeb. Yes ; that the Senator did ask the witness to
state how far the report made when he returned to New York corre-
sponded with that mass of letters, the difference being this, that he did
not in those questions point out some particular letter or some particu-
lar passage, and then ask him whether there was anything in the report
that contradicted that. It was that general question. Those other
questions were asked by the Senator. He did go through and ask him
in detail, but it was not there that I found the analogy. I found it in
that part of the examination where he was asked to contrast the report
made when he returned to New York with the contents of that mass of
letters written by him.

Senator Dolph. Now it might be well to call attention to the differ-
ence between the two cases. The letters shown to the witness by the
chairman were copies of letters which purport to have been written by



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THE LA ABBA SILVER MINING COMPANY. 229

an ageut of the company daring the coarse of his agency, by th super-
intendent of the company at the mines, who was carrying on all the
transactions of the company, to the treasurer of the company and the
agent of the company in 'New York, who carried on the correspondence
there. The witness had admitted that he had received a considerable
portion of thobe lett^ers all np to a certain date. The other letters weie
press copies, found in what is stated by a witness to be the letter-book
of the company, filed in the order of their dates, apparently detailing a
continuation of the transactions of the company, and I think I am not
in fault in saying that a presumption arises that they had been mailed
and if mailed h^ been, received, but it is not material to discuss the
strength of that presumption or whether or not it exists. The witness
has lK;en examined by the committee as to what Exall stated to him
after his return.

It seems to me it is a very dififerent question, asking the witness to
compare those letters, some of which he admitted were received, others
which purported to have been written to him by an agent of tiie com-
pany and by the party who made the statement, with the statement
and the proposition to read in bulk to the witness a statement made by
Exall after the testimony shows he had ceased to be connected with the
company some years and when he was not an agent of the company,
when his declarations were not competent to be given in evidence on
account of that change. Because he was an agent of the company,
counsel said they proposed to go on and show that Exall had made
statements to others which corresponded with his statement in the de-
position and contradicted the letters. I never have yet heard that it
was competent for a party when the statement of a witness was given in
evidence, and I suppose these letters, having been already proved, will
be offered in evidence, may be considered before the committee, to
prove that the witness has made a different statement somewhere else
and under other circumstances. I do not think that would be compe-
tent. As I said before, this witness was examined critically and at
length, and asked to give and gave his impressions as to what Exall
stated after his return, and I do say, and am willing to let my judgment'
stand upon that proposition, that to read to this witness this deposition
and then ask him whether Exall made such and such statements is not
a proper examination under any circumstances.

The Chairman. Judge Shellabarger, do you recollect which of the
letters of Exall to Garth you read to witness I

Mr.*SH£LLABABGEB. 1 read two. Now I will tell you which ones as
soon as I can turn to them. 1 read that one that is on page 94, at the
bottom, dated the 15th of June. Then I read one that came before that.

The Chairman. That is on page 92, dated the 15th of March f

Mr. ShellabAiIIOEB. Yes, I think I read that one.

The Chairman. Now, did you read another!

Mr. Shellabarger. I do not think I did in externa^ that is, entirely ;
that is, I called his attention to each one, and asked him if he had ever
received them or knew of such letters being written, and 1 asked that
question as to all the letters that appear in that series.

The Chairman. You read no part of any other that you remember,
did you f

Mr. Shellabarger. I think I did read parts, but not all.

The Chairman. Parts of any other !

Mr. Shellabarger. Any other than those two ?

The Chairman. Well, if you did, you may have read from April 7th ;



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2«W THE LA ABBA SILVER MINING COMPANY.

I think you read from May 8th. There is a letter dated Hay 8th on page
93. This witne88 was called to the stand by the Senate committee. He
was not a witness for the claimants, nor a witness against the claim-
ants, so far as the committee were concerned, bnt a witness to cast any
light npon this question that he was capable of doing, and was sup-



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 34 of 156)