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shoulders, but it seems to me, as one of the individual members of this
subcommittee, that the evidence is relevant and that the declarations
of persons interested who were engaged in the employment of others
to serve the company would be competent to show what their views at
that time were of the value of the mining property.

Mr. Shellabarger. In reply to the suggestion of the chairman I
may be pardoned for adding (what I ought to have added in my opening
statement, though I have no doubt it is understood, has been all the
time understootl) this : That the rule of exclusion in applications for a
new trial, etc., and proceedings in equity to administer a decree or an
order, the rule of exclusion is that defined by the Supreme Gourt in
what is familiarly known as the Throckmorton case, and the things that
the Senator has just suggested, to wit, the condition of the mine and
their knowledge that it was good or bad, etc., being relevant to the issue,
were the very issues tried originally before the arbitrator and are not
pertinent now.

The Ghairman. They would be only pertinent to show that the wit-
nesses who made representations of these facts in their depositions,
acted upon- by the arbitrators, were not candid or frank in their state-
ments, and that I understand to be the gist of this inquiry.

Senator Brown. As I view it, Mr. Ghairman, if this contract was in
writing, that writing is the highest evidence of the contract, and ought
to be produced. If the instructions given to the superintendent when
employed were in writing they ought to be produced or be accounted
for. Neither having been done, I should vote to rule out this testi-
mony, or rather I should object to the witness answering the question
as propounded by the counsel for Mexico.

The Ghairman. If this was an action at law or in equity on a con-
tract, and where the contract had anything to do with the nature of the
proceedings, I should concur with the Senator from Georgia; but that
is a mere incident of the transaction, which is, as I understand it, as
presented in (he question, an effort to gather what was the opinion of
Mr. Garth, and other gentlemen, concerning this property, as to its value
at the time tbey were employing him, and as to the expectations of
realizing something handsome out of the investment. The contract is
not an issue in any way.

Senator Brown. Then why introduce it!

Mr. Foster. The Senator misapprehends my question. I did not
intend to develop anything in regard to the contract. It is the inter-
view that occured with the treasurer, being in Kew York at the time
of his engagement.

Senator Brown. I understood your question to be to state what the
contract was.

Mr. Foster. No, no; that was interjected by the counsel on the other
side. I made no reference to the contract and do not propose to inquire
into it.

Mr. DoLPH. If the only inquiry here was whether a new trial should
be granted in a case where a judgment has been rendered, on the ground
of newly discovered evidence, of course the inquiry would extend only
to the newly discovered evidence and the question of diligence in the



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THE LA ABBA SILVER MINING COMPANY. 17

parties in secaring it at the time of the former trial. I do not under-
Htand that a new trial granted for newly discovered evidence is the
only means by which a judgment may be impeached. I suppose a
judgment, like a contract or any other transaction between individuals,
may be impeached ifor fraud^ and perjury is one means of procuring a
fraudulent judgment.

Therefore I suppose that the facts tending to show the knowledge of-
persons connected with the company who were authorized to speak for
it, and would be charged with a knowledge of its accounts, would be
competent testimony where the question was raised as to whether a
judgment should be impeached for fraud and perjury. The fact that
the witness was a superintendent of the mine could be proved inde-
pendent of the contract, because the terms upon which he was employed
might not be involved. I suppose that such a f.ict might be proved
independent of the contract, and, as I said before, it may be that
counsel will not desire to show the contents of the contract or even
the instructions to the superintendent. These are questions not yet
reached.

I understand that as the case now stands the question is to go to the
statements of Mr. Garth, who was treasurer and secretary of the com-
pany, as already appears in testimony, going to show his knowledge of
the character and condition of this mine. I understand the question
to be asked for the puriM)se of showing such knowledge, and in that
view of the case 1 should think it would be entirely pertinent. I agree
with counsel who made the objection that to come down to the question
of proving the contents of the contract, or even the character of in-
structions that were given to the sui>eriutendeut, if it appears that
there were any given, it would be necessary, under the strict rules of
testimony, either to procluce the writing itself or prove a copy of it, or
to show its loss, and then prove its contents. But I do not understand
that this question goes to that extent, nor do I now express any views
as to whether the committee should be bound by strict rules of evidence
as to the loss of the original and its contents to be proved, or not allow-
ing the contents to be proved, they showing the loss. In any view of
the case this question may be fairly answered.

Senator Brown. In iny opinion the whole investigation should be
confined to newly discovered evidence which would entitle the parties,
in a court of equity, to a new trial, and I do not think we ought to go
into the case originally and try it de novo.

Mr. Staples. The scope of the question of the counsel for Mexico, as
Judge Shellabarger remarked, oi>ens up the whole field of inquiry. It
is, in effect, retrying the case. The committee can very well see at
what disadvantage the La Abra Mining Company is put in an investi-
gation of that kind. The very question that he asks now is one of the
matters at dispute on the trial before the arbitrator. That trial occu-
pied a period of about five years, I think, and whilst the depositions
taken were mainly expartCy yet they were submitted to the other side,
and ample opportunity was given the Government of Mexico, after all
the evidence was procluced for the mining company, to put in their tes-
timony, which they did, and, upon examination of the whole, judgment
was rendered by the umpire upon a disagreement of the Mexican and
American commissioners. A new trial was sought upjon this alleged
lewly discovered evidence. It was thoroughly examined by Sir Ed-
ward Thornton. He declined a new trial. The matter was then brought
beCove the State Department, and Secretary Fish, under the adminis-



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18 THE LA ABRA SILVER MINING COBfPANT.

tration of President Grant, refased to negotiate a new treaty upon this
testimony.

Mr. Wilson. Let me interrupt you one moment. Before this is

finally passed upon I want to go and get a couple of decisions for the

purpose of presenting to the committee what the Supreme Court has

said in relation to this very proposition. I will go to the Library and

•get it

The Chairman. I have not seen any reason, nor heard any stated,
why we shall not proceed to inform the Senate of every fact that is rele-
vant to the merits and justice of this claim, whether or not these facts
were within vesuih of Mexico, or whether they were actually acted upon
by the arbitrators at the time. It is a matter for the Senate to deter-
mine or for its Committee on Foreign Relations to report upon. Wedo
not know what is newly discovered evidence, as you call it, in this case,
until we understand the whole situation. Now I do not understand
that the fact, whatever it is, that he is about to disclose was brought
to the attention of the arbitrators at all ; anything Mr. Garth said about
this claim or about the condition of the mine. I do not understand
that it was brought to the attention of the arbitrators.

Senator Brown. It was within the reach of parties and they might
have brought it to their attention.

The Chairman. Suppose they did or did not. If we know that the
parties representing this claim are dishonestly perpetrating a fraud
upon the Government of Mexico and the Government of the United
States also, if the Government of Mexico failed to get the evidence that
was within her reach, it is no reason why we should not act upon it I
do not think the Government of the United States is called upon to
pay money to men who obtain it upon fraud and perjury and upon a
claim that is not valid. It seems to nie this committee can not discharge
its duty to the Senate and the general committee without laying the
whole thing before them and letting them see how much Mexico knew
and everything of that sort.

Senator Brown. The records of the original trial would show.

The Chairman. The record is here, of course, and available to the
committee to ascertain whether this evidence that we are bringing out
is new evidence or not. We can not decide that question in advance.

Mr. Staples. The suggestion we desire to make to the committee is
the very great injustice the mining company is subjected to by an in-
quiry of this kind. Most of the witnesses whose testimony was given
before the triai fifteen years ago are dead, and those who are not dead
are absolutely inaccessible, and it is a mere ex parte statement on the
part of a witness to give the declaration of parties who are inacces-
sible.

The Chairman. Mr. Garth is not dead, but is now under subpcena.

Mr. Staples. And in reply to the suggestions of the chairman as to
the allegations of fraud and perjury upon which this claim was based
and judgment rendered, when this matter was investigated by Mr.
Evarts, then Secretary of State under Mr. Hayes, the report that he
made simply went to a charge of exaggeration of damages.

Mr. LiNEP. What was that!

Mr. Staples. I say that he reported that the question in relation to
the La Abra Mining Company was simply a question of exaggeration
of damages.

Mr. Shellabarger. Yes, and the Secretary of State reiterates that
in a late communication to Congress.

The Chairman. Well, the gentleman who was then Secretary of



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THE LA ABBA SILVER MINING COMPANY. 19

State is now a member of this committee, and his vote and voice is just
worth exactly as much as ours and no more.

Mr. Staples. We do not say it is worth as much ; but this charge
of fraud and perjury has been investigated to protect the honor of the
United States in this matter, and the party charged with its investiga-
tion has decided the fact, so far as the administration can decide it,
that the claim was a valid claim, and that the question to be considered,
if investigated at all, was simply one of exaggeration of damages.

Mr. Foster. A position which Mexico has always denied.

Senator Dolph. Mr. Chairman, we have spent now two mornings and
made very little progress. I think that in order to get along with this
testimony, if there are to be objections to the testimony, we will have
to establish a rule that counsel shall be heard on each side ; that we
will then confer with each other and let the chairman announce the
decision, and go on.

The Chairman. That will be the rule of this committee unless there
is objection.

Mr. Staples. That would be a very proper rule.

Mr. Foster. I do not propose to weary you, gentlemen, and do not
propose to occupy as much time as my friends on the other side.

The Chairman. I will submit it to the committee whether Mr. Foster
be heard.

Senator Brown. I think he should be heard.

The Chairman. Very well.

Mr. Foster. I do not know what rule the committee will adopt in
regard to hearing testimony ; whether you are going to adhere to the
strict rules of courts of justice or not, or whether you are going to
follow the indications pointed out by the Supreme Court when.tbis very
case was before it, in which it was stated that it was not proper in such
a trial as this that the strict rules of municipal tribunals should be ob-
served^ but whether that be so or not, I suggest that this question is
strictly within the lines or rules of practice of the courts.

We submit a letter-book here and letters of the treasurer of the com-
pany and letters relating to these matters. I want to throw light upon
this newly discovered testimony by a newly discovered witness. The
president of the company says, he has sworn, that they have made dili-
gent eftbrts to obtain Julius A. de Loguel and not able to find him and
produce him. We have been able — the first opportunity Mexico has
ever had — to find this superintendent, and he is before you to-day. I
think it is strictly within the lines of practice of the courts to hear him
on a question of this kind, and I apprehend you are not going to limit
anything of this kind, but follow the indication of the Supreme Court.

Senator Dolph. I suppose, under the rule already adopted by the
committee, any party can offer such testimony as they choose, and the
other party can object and it will be decided at once.

Mr. Shellaharger. I want to understand the rule the committee
has adopted. Does it mean you will decide at once and conclusively
the question of admissibility of evidence, or only you should postpone
it for final decision when you come to make up your report?

The Chairman. I understand Senator Dolph's suggestion, in which
I concur, and I suppose the Senator from Georgia does too, to be that
after an objection is stated and argument is heard upon it t^e commit-
tee will come to its decision about it; and I suggest also to the com-
mittee that argument ought to be limited to five minutes on a side upon
questions of this kind, unless for reasons that are obvious we should



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20 * THE LA ABBA SILVER MNING " COMPANY.

decide to enlarge it ; bat as a rale it onght to be five miantes. We
will never get through if we keep on like this.

Senator Bbown. Of coarse, when an important question comes op,
we can extend it.

The Ghaibman. Certainly. Five min'utes as a rule, and to be ex-
tended at our discretion.

Senator Dolph. We will simply determine whether we will or will
not hear the testimony, not as to the effect of it.

The CHAraMAN. Now you can proceed Mr. Foster. I believe the
majority of the committee have determined it is a question that can be
answered.

By Mr. Foster:

Q. Please narrate the interviews had between yon and Mr. Garth
before you went, under employment of the company, to the mines.

The Ohaibman. In respect to whatt

Mr. Foster. In respect to the business of the mining company. Tell,
in a short way, how your came in contact with Mr. Garth.

The Chairman. State in your own way.

The Witness. I was introduced to Mr. Garth by a mutual friend, he
being at the time in want of a superintendent to replace General Bar-
tholow, who desired to leave, as I understood, on account of ill health.
I met Mr. Garth. He made all due inquiries. I told him my record as
I have told you, and I told him I had no previous experience as a miner,
had never been in a mine, and doubted my own ability to do it, but he
said that there would be a gentleman at the head of the store, Mr. Hardy,
who would relieve me of all that; that he had miners of experience on
the ground, a competent corps of workmen, under a competent head, to
put up the machinery. It was simply honesty and intelligence and in-
dustry and control that he wanted at that moment. Mr. Hearn coming in
then, or possibly another day, but Mr. Hearn went with me to the board
of directors, or some of them, but it was objected when he stated to
them just what I have stated to you now. I think that Mr. Knuckles
was the gentleman who remarked upon my unfitness for the place, he
thought, because I was not a practical miner. But after discussion it
was determined to leave it to Mr. Hearn. Mr. Hearn returned to the
office and he and Mr. Garth determined to employ me, and they did so,
fixing my compensation and term of service. Under that engagement
I left New York early in March, 1866, with letters of introduction to
General Bartholow and a letter of instruction at length from Mr. Hearn
as to what he wanted me to do and what he expect^.

By Mr. Foster :
* Q. Please state more fully your interviews with Mr. Garth before
leaving, as to the character of the mine and condition of things — the
value of the property. — A. In one of the interviews at the office— I had
several with him — I noticed on the mantel-piece a piece of silver ore, a
piece some 8 or 10 inches in length and proportionately high. He
pointed to it and said it was taken out — ^I think he said the La Loz
mine.

Q. One of the mines of the company! — A. Yes; he told me in
reference to it, I think, that he had personally brought it home and
that he thought it was worth some tl,300 a ton. I told him he knew I
was not skilled. I told him I would go to a Mend, who was only a
square removed, a practical metallurgist, and one of the first chemists
of the country at that day, and have him make an assay if he would
give me a small sample. He did it; I took it around and it turned oat



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THE LA ABRA SILVER MINING COMPANY. 21

over $I,300^-one thoasand odd dollars in silver and $300 in gold. I saw
the assay made two or three times to confirm one or the other, and the
variation was not more than two or three dollars in the trials. I re-
tamed and told Mr. Garth.

This confirmed what he had said to me. I then, having some time to
spare, went to this office continually, and told this gentleman my need
of experience and knowledge, and asked his advice, and he said he
would instruct me ; and under his guidance I went to work and learned
to assay.

Q. What further did Mr. Garth state in regard to the value of the
mine at that time f — A. I know he had a most exalted opinion of these
mines; was firmly convinced of their being the deposit of immense

wealth. He told me he had it from he mentioned certain records.

He told me the records of Durango showed the fifth paid into the royal
treasury as proof of the immense wealth and product of them in years
gone by.

Q. What did he say as to his expectations in regard to the mines t —
A. Well, he expected immense results from them, of course.

Q. What did he say as to the present condition of the mines as he
understood, and the work there in progress f

By the Chairman :
Q. The then present condition of the mines t — A. He told me that
Gten. Bartholow was there ; had everything working ; that there was
an amount of ore out; that the mill was on the ground; that the work-
men were patting it up.

By Mr. Foster :

Q. When did he expect the mill to be in operation? — A. That sum-
mer some time: but his great desire wa« to get the mill up. That was
the burden of his instructions verbally, and I think in writing, to me,
to have the mill up and an abundance of ore out in order that no de-
tentions might occur. I recollect his remark that many a company has
been ruined because of insufficiency of ore to work after the mill was up.

Q. What did he say as to the financial condition of the company, the
money in the treasury, etc.t — A. He told me — he was very explicit from
the first — enjoined great economy, and not to draw upon him ; that the
company had about, a« I think, from seven to eight thousand dollars in
hand, disposable at that moment, but he told me the debts were paid. I
asked him this question : <' Have you any debtf " and he told me there
was no indebtedness; the supplies on hand, everything, had been su])-
plied, but that I must get up the mill as soon as possible and look to the
mill to give me returns.

Q. And not to the company t — A. Sir f

Q. What did he say as to the ability of the company to meet your de-
mands, or whether you must look to the results of the mill f — A. He told
me, of course, I must depend upon the mill ; he expected that ; that he
knew great wealth was there and I must look to the mills to buy all that
was needed and send them returns, which he looked for.

Q. What did he say as to the ability of the company to pay drafts f
Yon say he cautioned you not to draw ? — A. He cautioned me not to
draw; yes. After I got back he told me about the inability of the com-
pany to

Q. Well, I am only inquiring what occurred before you went out. —
A. Before I went out, I don't know that he said anything, except that
he had this money ; that he did not want to be drawn upon, and that I



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22 . THE LA ABRA SILVER MINING COMPANY..

mast look to the mill to give me the necessary means to carry on the
work, and have the mill pay operatives and everything else.

Q. Was be expecting mure tiian that — more than simply paying cur-
rent expenses f— A. Of coarse he expected bullion in New York.

Q. To any large qnantit^ f^A. Mr. Garth's estimation of the mines
was excessive. He seemed to regard it as the deposit of immense wealth ;
that it had yielded he was satisfied, and wonld do it again. His idea
was that the mines had been destroyed with the Spanish expulsion by
people going in unrestrained and tearing down the pillars that would be
left by old Spanish law, to keep the walls apart, to pick out the silver;
and this being done the walls had tumbled in in many places. The
mine was full of debris, and they were working under great expense,
and the work had been to get that out

Q. Now, yon went to the mine after this ; what time did you reach the
mine f — A. I left New York the first of March ; I must have reached the
mines in the month of April, I think.

Q. What year t— A. 1866.

The committee adjourned until 10.30 o'clock a. m., Thursday, Septem-
ber 27, 1888.



Senate of the United States,

Committee on Foreign Relations,

Washingtanj D. C, September 21, 1888.

The subcommittee met pursuant to adjournment. Present, Senators
Morgan (chairman), Dolph, and Brown ; 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 P. Lines, rep-
resenting the Government of Mexico.

The Chairman. Mr. Foster, will you proceed with your witness!

Mr. Foster. Before I call Mr. De Lagnel 1 would like to make a
statement and a request to the committee. There is present this morn-
ing Mr. Tuttle, a gentleman in active business in New York City, who
is called here by the Sergeant-at-Arms to appear this morning, antici-
pating, 1 suppose, that you would have been through with Mr. De
Lagnel. The only object in his coming is I desire to ask him to identify
certain letters of Exall, and, so far as I am concerned, I do not think
I will occupy more than fifteen minutes in hearing him. It is simply a
matter of convenience for him having been call^ by the committee,
and, being engaged in active business in New York, you can appre-
ciate his situation. I will call him if the committee will allow, and the
other witness can stand aside for that time.

The Chairman. Is there any objection to postponing the examinatiou
of Mr. De Lagnel until this witness is examined f

Senators Brown and Dolph. I see no objection.

TESTIMOnY OF WILLIAM P. TUTTLE.

William P. Tuttle, sworn and examined.
By Mr. Foster:

Q. Please state your name, age, residence, and occupation. — A. My
name is William P. Tnttle; age, forty five; residence, Madison, N. J.;
occupation, banker and broker. New York City.



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THE LA ABRA SILVER MINING COMPANV. 23

Q. How long have you been engaged in basiness in New York City! —
A. I have been aotively engaged for fifteen years.

Q. State whether or not yon have been acquainted with Charles H.
Exall. — A. I was acquainted with him.

Q. State the circumstances of your acquaintance, the character of it. —
A. I was a member of the firm of Ewing & Tuttle, brokers, and Mr.
Exalt became our book-keeper, in which position he remained during
parts of the years 1877 and 1878. I was only acquainted with him in
that relation.

Q. Are you familiar with his handwriting t — ^A. I am.

By Senator DoLPH:

Q. Have you seen him write f — A. Yes, sir.
By Mr. Foster:

Q. How have you established your familiarity with his hand writ-
ing! — ^A. Well, since I knew that you would call upon me I found a
journal of his in his handwriting which I examined, but I was familiar
with it before, but have refreshed my recollection, it being some years



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 6 of 156)