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Cornell University Library 
 JX 238.M5A33 1877 
 
 Claim of "La Abra Mining Co." vs. Mexico 
 
 3 1924 017 538 418 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017538418 
 
MEXICAN REPUBLIC, 
 
 Department of Foreign Affairs, 
 Bureau of America, 
 
 Mexico, September 7, 1877. 
 
 With the intention of making the appeal to the sentiments 
 of justice and equity of the United States Government, 
 announced by the Mexican Agent at the close of the proceed- 
 ings of the Mixed Claims Commission in regard to the claim 
 of Benjamin Weil, number 447, and to that of La Abra Min- 
 ing Company, number 489, both against Mexico, the Govern- 
 ment has had printed in two pamphlets some very important 
 documents bearing on these claims, and I forward you four 
 hundred copies of each one of said pamphlets. 
 
 Be pleased to have them distributed among the public 
 officials and other persons to whom, in your opinion, it might 
 be convenient to make known the reasons we have to make 
 the appeal above referred to, as also the true attitude of the 
 Mexican Government in the matter, which does not imply in 
 any way the purpose to begin and maintain a controversy in 
 order that the decisions of the Umpire on the aforesaid cases 
 should not be carried out, but simply to demonstrate the 
 fraudulent character of the claims to which they refer, hoping 
 that the United States Government, becoming convinced that 
 thegrounds of such claims are surely false, and that its principal 
 evidence consists in affidavits of perjured witnesses, will not 
 find just and equitable that the authors and abettors should 
 receive the award granted them erroneously, and which would 
 constitute a reward of their criminal demeanor, that ought, 
 on the contrary, to deserve a severe punishment. 
 
 But if, as I said to that Legation in my despatch of the 1st 
 of May (page 104 of the pamphlet, claim of Benjamin Weil), 
 the appeal of the Mexican Government to the sentiments of 
 justice and equity of that of the United States should by any 
 reason be inefficacious, said government will faithfully per- 
 form the duties imposed on it by the Convention of the 4th 
 of July, 1868, which it has not tried to elude, nor intends to 
 elude, by means of such appeal. 
 
 Before the day fixed for the payment of the second instal- 
 ment there will be in that capital the necessary funds to do 
 it, which instalments will continue to be paid every year with 
 the greatest exactness till the balance against Mexico is set- 
 tled according to the Convention. 
 
 In transmitting to the State Department, as requested, 
 copies of the pamphlets above referred to, you will enclose 
 copy of this communication and a translation of the same into 
 English, accompanying an English translation to each pam- 
 phlet distributed. 
 
 I renew to you my attentive consideration 
 
 (Signed.) VALLAETA. 
 
 C. Minister, of Mexico, 
 
 at Washington, D. C. 
 
CLAIM OF "Li ABSA MINING Co." VS: KXICO-Ni). 489 
 
CLAIM 
 
 a 
 
 WJ 
 
 N"- 489 
 
 Hie Umpire of the United States & Mexican Claims Commission, 
 
 MOTION FOR REHEARING 
 
 TRANSLATION BY J. CARLOS MEXIA 
 
 MEXICAN SRORETARY OF SAID OOMMISBION 
 
 MEXICO 
 
 GOVERNMENT PRINTING OFFICE 
 
"LA ABRA" MIIE CO. VS. MEXICO Ij 487. 
 
 AWARD OF THE UMPIRE. 
 
 With reference to the case of «La Abra Silver Mining Co. vs- 
 Mexico» n 9 489, the Umpire is fully satisfied and cannot doubt 
 that the Company is entitled to be considered a corporation, or 
 Company of citizens of the United States in accordance with the 
 terms of the Convention of July 4, 1868, having been duly char' 
 iered in conformity with the laws of the State of New York. 
 
 He is also of opinion that the enterprise upon, which the claim: 
 ants entered, of purchasing, denouncing and working certain 
 mines in the State of Durango, in Mexico, was a serious and hon- 
 est business transaction on their part, and that there was no- 
 thing rash, deceitful or fraudulent in it, but that it was engaged 
 in with the sole intention of carrying out legitimate mining ope- 
 rations. 
 
 There is no doubt that the Mexican Government was very de- 
 sirous of attracting foreigners to the Republic, and of inducing 
 them to bring their capital into it and raising up industrial esta- 
 blishments of all kinds. With this view it issued proclamations en- 
 
 i 
 
2 
 eouraging the immigration of foreigners and promising them cer- 
 tain advantages and full protection. It cannot be denied that the 
 claimants were justified in placing confidence in these promises. 
 They complain, however, that the local authorities of the Dis- 
 trict in which their mines and works connected with them were 
 situated, did not fulfil the engagements entered into by their 
 Government, but, on the contrary, behaved towards them in an 
 unfriendly and hostile manner. The ground of their claim is that 
 these hostilities were carried to such an extent, that they were finally 
 compelled to abandon their mines and works and to leave the Repu- 
 blic. 
 
 The evidence on the part of the claimants is, in the Umpire's 
 opinion, of great weight; the witnesses are for the most part high- 
 ly respectable and men of intelligence; and their testimony bears 
 the impress of truth. Notwithstanding what is stated to the con- 
 trary by the witnesses produced by the defence the Umpire is 
 constrained to believe that the local authorities at Tayoltita and 
 San Bimas, far from affording to the claimants that protection 
 and assistance which had been promised them by the Mexican 
 Government, and to which they were entitled by Treaty, not on- 
 ly showed themselves a spirit of bitter hostility to the company, 
 but encouraged their countrymen who were employed by the 
 claimants, in similar behaviour, and even frightened them into 
 refusing to work for their american employer,-?. The conduct of 
 these authorities was such and the incessant annoyance of, and in- 
 terference with the claimants was so vexatious and injustifia- 
 ble that the Umpire is not surprised that they considered it useless 
 to attempt to carry on their operations, and that for this reason, as 
 well as from the well grounded fear that their lives were in danger 
 they resolved to abandon the enterprise. These facts are not in 
 tho Umpire's opinion at all refuted or even weakened by the 
 evidence submitted by the defense; on the contrary, he believes 
 
8 
 that the local authorities were determined to drive the claimants 
 out of the country. 
 
 It appears that the superintendent of the mines took such 
 steps as he could to obtain protection from these authori- 
 ties, and, finding his efforts^in vain, he appealed, through a lawyer 
 of high character, to the highest authorities in the State, who declined 
 to interfere in the matter. To suppose that when so deter- 
 mined a spirit of hostility on the part of the local authorities, 
 one of whom was the Jefe Politico who wielded great power, 
 and so much indifference by the State Government were display- 
 ed towards the claimants, it would have been of any avail to 
 appeal to the Courts of Justice, would be puerile. In short, the 
 Umpire does not see what else, in presence of such opposition to 
 their efforts, the claimants could do but abandon the enterprise. 
 
 The Umpire is of opinion that the Mexican Government 
 which, with a spirit of liberality which does it honour, encouraged all 
 foreigners to bring their capital into the country, is bound to com- 
 pensate the claimants for the losses which they suffered through 
 the misconduct of the local authorities. What the amount of this 
 compensation should be, it is very difficult to decide. The Um- 
 pire is of opinion that the claimants should be reimbursed the 
 amount of their expenditures and also the value of the ores extract- 
 ed which they were forced to abandon, with interest upon both 
 these sums. He cannot consent to make any award on account of 
 prospective gains nor on account of the so-called value of the mines. 
 Mining IS PROVERBIALLY THE MOST UNCERTAIN OF 
 UNDERTAKINGS; MINES OF THE VERY BEST REPU- 
 TATION AND CHARACTER SUDDENLY COME TO AN 
 END EITHER FROM THE EXHAUSTION OF THE VEINS, 
 OR FROM FLOODING OR FROM SOME OF THE INMU- 
 MERABLE DIFFICULTIES WHICH CROSS THE MI- 
 NER'S PATH. A certain interest upon the money invested is 
 
4 
 a much surer compensation than prospective gains; the latter are 
 in fact the interest upon the sums invested; they may be greater 
 or less, or none at all, and there may even be great losses of capital. 
 To award both interest and prospective gains would be to award 
 the same thing twice over. The so called value of the mines must 
 depend upon the prospective gains. It may be great, small or noth- 
 ing, and may be but a mere snare to lead one on to utter ruin. It 
 is in the opinion of the Umpire equally inadmissible that the ^ 
 Mexican Government can be called upon to pay a value, the 
 amount of which, even approximately, it is impossible to decide. 
 A moderate interest on the amount invested in the business and 
 upon the amount of the ores reduced and of those extracted and 
 deposited at the reduction works is a further compensation which 
 in the opinion of the Umpire that Government ought to pay. 
 
 The evidence of George 0. Collins, with regard to the amount in- 
 vested is clear and straightforward. He states it from subscrip- 
 tions and sales of stock to be % 235,000 00 
 
 Lent and advanced 64,291 06 
 
 Due for rent, expenses, salaries, law expenses.... 42,500 00 
 
 $ 341,791 06 
 
 Any so-called «forced loans» and contributions must have 
 been paid out of this amount. To charge them, therefore, separa- 
 tely is to make the same charge twice over. The Umpire takes 
 occasion, however, here to observe that a forced contribution 
 e xacted upon a train of goods, the property of the Company, in 
 transit from a seaport or elsewere to the mines, is not in the 
 nature of a forced loan. The latter should be recovered by the 
 proper authorities, at the head quarters of the Company, and 
 should be in the same proportion as that imposed upon all the 
 
5 
 inhabitants of the country. The former is an arbitrary exaction 
 whichis frequently much more prejudicial than the actual money 
 loss, on account of the detention and abstraction of goods with- 
 out which the mining operations cannot proceed. 
 
 To the above mentioned amount of $ 341,791 06 
 
 Should be added 17,000 00 
 
 Which is shown to have been the amount derived from reduced 
 ores. 
 
 The Umpire is satisfied, from the respectable evidence produced, 
 that a large quantity of valuable ore had been extracted from 
 the mines and deposited at the Company's mill, and that it was 
 there when the Superintendent was compelled, by the conduct 
 of the local authorities, to abandon the mines and cease woiking 
 them. But the Umpire is of opinion that there is not sufficient 
 proof, nor indeed such proof as might have been produced, that the 
 number of tons stated by the various wituesses were actually 
 at the mill, or at the mines, at the time of the abandonment. 
 In so well regulated a business, as the Umpire believes that it 
 really was, he cannot doubt that books toould have been kept in 
 which the dayly extraction of ores would have been regularly noted 
 down, and that periodical reports would have been made to the Com- 
 pany at Neiv York. NEITHER BOOKS NOR REPORTS 
 HAVE BEEN PRODUCED, NOR HAS ANY REASON BEEN 
 GIVEN FOR THEIR NON-PRODUCTION. The idea formed 
 even by persons intelligent in the matter, of the quantity of a 
 mass of ore, must necessarily be vague and uncertain, and that of 
 its average value still more so. Still the Umpire is strongly of 
 opinion that the claimants are entitled to an award upon this por- 
 tion of the claim. He will put it at $100,000. It is possible that 
 it is much less than the real value of the ores; but in the absen- 
 ce of sufficient documentary proof and considering the fact that 
 the expenses of reduction are great and sometimes even much 
 
6 
 
 greater than is anticipated, he does not think that he would be 
 justified in making a higher award. Neither should interes 
 be allowed on this amount so soon as on the others; for the re- 
 duction of the ores would have taken time, say a year. It is not 
 shown that the Company had received any dividens before the period 
 of the forced abandonment of the mines, about March 20 th 1868. 
 Neither ought interest to be awarded before that date. 
 
 The Umpire, therefore, awards that there be paid by the 
 Mexican Government, on account of the abovementioned claim 
 the sum of three hundred and fifty eight thousand seven hundred 
 and ninety one Mexican Gold Dollars and six cents {% Zb^.l^l^) 
 with an annual interest of six per cent from March 20 th 1868 
 to the date of the final award, and further the sum of one hun- 
 dred thousand Mexican Gold Dollars ($ 100.000 T ° o °o-) with the sa- 
 me interest from March 20 th 1869 to the said date of the final 
 award. * 
 
 (Signed; 
 
 Edw. Thornton. 
 
 Washington, December 27 th 1875.» 
 
 * The interest amounted to the sum of $ 824.250„2G oents. up to the 81" of July 
 1876, which date was designated by the Umpire as that of the final award, and conse- 
 quently the whole sum awarded to the claimants was $ 683.041„32 oents. 
 
A. M. DOCK. NO. 489. 
 
 "LA ABRA" MINING COMPANY. 
 
 VS. MEXICO. 
 
 MOTION OP THE AGENT OF MEXICO FOB A BEHEABING, 
 
 The Government of Mexico has been condemned to pay the 
 enormous sum of $683,041 31 — capital and interest — to a com- 
 pany established in New York, because that company alleges 
 that it had to stop working some rich mines on account of the 
 hostilities of the Mexican authorities. 
 
 The foundation or grounds of such an important decision are 
 the following: 
 
 I. 
 
 RIGHT OF CLAIMANTS TO BE COMPENSATED. 
 
 A.— That claimant must be considered as an American Com- 
 pany according to the Convention of July 4 th 1868, because it 
 
8 
 was chartered in conformity with the laws of the State of New 
 York. 
 
 B. — That the enterprise of said company to purchase, de. 
 nounce and work certain mines in the State of Durango, Mexi- 
 co, was a formal and honest business transaction on their part, 
 and there was nothing rash, deceitful or fraudulent in it, but 
 that the company undertook it with the sole intention of car- 
 rying out legitimate mining operations. 
 
 C. — That there can be no doubt that the Mexican Govern- 
 ment was very desirous of attracting foreigners to the Republic 
 and of inducing them to bring their capitals and raising up in- 
 dustrial establishments ot all kinds, to which effect it issued 
 proclamations encouraging the immigration of foreigners, pro- 
 mising them certain advantages and full protection; and that it 
 cannot be denied that the claimants were justified in placing 
 confidence, in such promises. 
 
 D. — That claimants complain that the local authorities of the 
 District where those mines were situated, did not fulfil the 
 engagements entered into by their Government; but, on the con- 
 trary, they behaved towards them in a'very unfriendly and hos- 
 tile manner, the ground of this claim being that the hostilities 
 were carried to such an extent, that claimants were obliged to 
 abandon their mines and leave the Republic. 
 
 B. — That claimant's evidence is of great weight, the ma- 
 jority of their witnesses being men of respectability and intel> 
 ligence; and that their testimonies bear the impress of truth. 
 
 F. — That notwihstanding the affirmations of the witnesses of 
 the defense, we must believe that the authorities of Tayoltita 
 and San Dimas, far from affording claimants the protection and 
 assistance promised to them by the Mexican Government, and 
 to which they were entitled by Treaty, not only did show a spirit 
 of bitter hostility to the company, but encouraged some Me- 
 
9 
 xicans employed by claimants in similar behaviour and even 
 frightened them into refusing to work for the Americans who 
 had employed them. 
 
 G. — That the conduct of those authorities was such, and the 
 incessant annoyance of, and interference with the claimants was 
 so vexations and unjustifiable, that it is not surprising that they 
 should consider useless to attempt to carry on their operations 
 and that for this reason, as well as from the well founded fear 
 that their lives were in danger, they resolved to abandon their 
 enteprise. 
 
 H. — That these facts have not been refuted nor even weakened 
 by the defensive evidence and the Umpire does believe that the 
 local authorities were determined to drive the claimants out of 
 the country. 
 
 I. — That the superintendent of the mines took such steps as 
 he could to obtain protection from said authorities, and, finding 
 vain all his efforts, appealed through a lawyer of high character 
 to the highest authorities of the State, who declined to interfere 
 in the matter. 
 
 J. — That there being such a decided spirit of hostility on the 
 part of the local authorities, one of whom was the Jefe politico 
 who wielded great power, and so much indifference displayed 
 by the State Government, towards the claimants, it would be 
 puerile to suppose they could have found any remedy by ap- 
 plying to the Courts of justice; and that, in short, the Umpire 
 does not see what else could have been done than to abandon 
 the mines and entreprise. 
 
 K. — That the Mexican Government which, whit a spirit of 
 liberality which does it honour, encouraged foreigners to bring 
 their capitals into the country, is bound to compensate the 
 claimants for the losses which they suffered through the 
 misconduct of the local authorities. 
 
II. 
 
 AMOUNT OF THE COMPENSATION. 
 
 L. — That claimants must be reimbuzsed the amount of their 
 expenses and the value of the ores they had already extracted 
 and they were obliged to abandon; and interest on both these 
 sums. 
 
 L. his. — That "nothing can be granted to them in the shape of 
 prospective gains, nor for the so called value of the mines; as the 
 working of mines is proverbially one of the most uncertain of 
 undertakings, for even those of the very best reputation sud- 
 denly come to an end, either because the veins are exhausted, 
 or from flooding, or from some other of the innumerable difficulties 
 which cross the miners path. 
 
 That the pretended value of the mines must depend on the 
 magnitude of prospective gains, these being greater, smaller, 
 or none at all, and even change into a snare, leading to ruin. 
 
 M. — That a certain interest on the money invested is a safer 
 compensation than prospective gains, they beiDg really an 
 interest on the capital employed, that may be larger, or smaller, 
 or none whatever; as the capital itself is subject to great losses. 
 
 N. — That to grant, at the same time, both interest and pros- 
 pective gains, would be to grant the same thing twice. 
 
 N. bis. — That it is inadmisible that the Government of Mexi- 
 co should pay a sum, the real amount of which is impossible to 
 determine, even approximately. 
 
11 
 
 0. — That besides the interest on the capital invested in the 
 enterprise, the Government must also pay it on the value of 
 the ores reduced, and on those extracted and deposited for reduc- 
 tion. 
 
 P. — That the evidence of George C. Collins with regard to 
 the amount invested is straightforward, and, according to it, said 
 amount consisted in the following; 
 
 From subscriptions and sale of shares $ 235,000 00 
 
 ,, loans and advances „ 64,291 06 
 
 Due for rents, salaries and law expenses . . .„ 42,500 00 
 
 $ 341,791 06 
 
 Q. — That whatever forced loans and taxes the Company may 
 have paid must have been paid out of this amount, and to charge 
 them, therefore, separately would be to make the same charge 
 twice. 
 
 R. — That the contribution exacted upon a train of goods of the 
 company in transit from a seaport or some other place to the mines 
 cannot be considered in the nature of a forced loan. In order 
 to consider it so, it would have been necesary that it should 
 have been imposed by competent authorities at the head quar- 
 ters of the Company, and in the same proportion as that imposed 
 upon the rest of the inhabitants of the country. That contribution 
 must be considered as an arbitrary exaction that produced mere 
 injury than the actual loss of money, on account of the detention 
 of the goods, without which the companycould not continue wor k 
 ing the mines. 
 
 S. — That to said sum must be added $17,000, amount shown 
 of reduced ores. 
 
 T. — That the proof produced is satisfactory as to a large 
 amo unt of valuable ores had been extracted from the mines and 
 
12 
 
 deposited in the company's mill; and that it was there when the 
 superintendent was compelled, by the acts of the local authori- 
 ties, to abandon the mines and cease their work. 
 
 U. — That the proofs that the number of tons designated by 
 several witnesses were actually at the mill or mines at the time 
 of their abandonment, are unsufficient. 
 
 V. — That in such a well regulated negotiation as the Umpire 
 believes this to be, it cannot be doubted that books were kep^ 
 in which the daily extraction of ores were regularly annotated 
 and that notice of the same was periodically sent to the compa- 
 ny in New York; aud, nevertheless, neither the books nor such 
 notice have been presented, nor even an excuse for not present 
 ing them has been alleged. 
 
 W. — That the estimate made, even by intelligent persons 
 about the amount of ore contained in a large mass, must nece- 
 earily be vague and uncertain, and even more so as to the aver 
 age value of said ore. 
 
 X. — That still claimants are entitled to be compensated for 
 the value of their ores, which will be fixed in $ 100,000, though 
 it is possible that this sum be less than the true value; but in 
 default of documentary evidence and taking into consideration 
 that the reducing expenses are considerable, sometimes greater 
 than their estimate, it would not be justiable to grant a larger 
 sum. 
 
 Y. — That the interest granted on this amount should not be 
 computed from the same date of the others, becaucethe reduc 
 tion of the ores requires some time, say about one year. 
 
 Z. — That it has not been shown that the company received 
 any dividends prior to the time of the forced abandonment of the 
 mines, the 20 th of March 1868, and, therefore, no interest should 
 be granted before that date. 
 
13 
 The undersigned will now proceed to make his remarks in re- 
 gard to these grounds, with all due respect to the Umpire and 
 animated by the desire not to wound his susceptibility: still he 
 must, by way of introduction, request the Umpire to bear in mind 
 whilst perusing this motion, that the undersigned can only ac- 
 complish his object by using that ample liberty granted to the 
 defense in all Courts; and that in case he condescends to revise, 
 he should not consider the decision as his own work, but rather 
 as if written by an utter stranger; for thus only will be able to rec- 
 tify its grounds, in an independent and unbiassed manner, and 
 to render a sure judgment in an affair, that sooner or later must 
 receive great publicity and be the object of commentaries. 
 
 I. 
 
 A. 
 
 The company has been considered as a citizen of the United 
 States, because it was chartered according to the laws of the 
 State of New York. 
 
 Does this meet the intent of the convention of July 14 th 1868? 
 
 The undersigned sustains the negative, for the following rea- 
 sons: 
 
 1 st Because the law of the State of New York of February 
 17 th 1848, by virtue of which the company was chartered, could 
 only give it a legal capacity to sue and be sued before the Courts 
 
14 
 of the same State, but could not invest it with any rights in, or 
 in regard to a foreign country. 
 
 2<* — It is not even a well established fact whether the privi- 
 leges granted to a company by virtue of the law of one of the 
 States, can have effect in all the States of the American Union. 
 
 3 d — No nation is bound to recognize a company intending 
 to do bussiness in its own territory as invested with the citi- 
 zenship of another, by virtue of an authorization emanating 
 from a foreing State, and, even less, when such a State has not, 
 by itself, international powers. 
 
 The first of these reasons need no amplification. It is enough 
 to see the text of the law just quoted, to feel convinced that its 
 effects are restricted to the State of New York. 
 
 We put the case even stronger and say that it is not even 
 necesary to see said text, because it is a well known principle 
 of public law, that no State — especially when its sovereignty is 
 restricted by a federal compact — can extend its authorizations 
 beyond its own territory. 
 
 The second reason is based on the following decisions of the 
 Federal Courts of the United States: 
 
 «A controversy arose early, and was continued with great 
 earnestness and with varying fortunes through many years, 
 touching the capacity of corporations aggregate to sue and be sued 
 in the Courts of the United States. The question was, whether 
 it was necessary to ascertain who were the persons composing 
 these bodies and to show that each one of them, individually, 
 possessed the requisite character. It was so decided in the «Hope 
 Insurance Company vs. Boardmen,» and the «Bank of the Utti- 
 
15 
 ted States vs. Devan,» (5 Cranch 57, 61); and the decisions in 
 thes9 cases were followed — though, as we learn from a subsequent 
 case, with great reluctance — in the (cComercial Bank of Vicks- 
 burg vs. Slocum,)) (14 Peters 60.) The decision was that a corpo- 
 ration could not, in its corporate capactly, be a citizen, and could not, 
 therefore, litigate in the Courts of the United States, except in conse- 
 quence of the citizenship of the individual members composing it. Each 
 of the corporator must be a person capable of suing where the 
 corporation was plaintiff, and of being sued where it was de- 
 fendant, and, it appearing that some of them were citizens of 
 the same State with the plaintiff, it was held that the Circuit 
 Court had no jurisdiction.)) 
 
 «But in the case of Louisville, Cincinnati and Charleston 
 Railroad Co. vs. Lettson [2 Howard, 497,] the Supreme Court 
 saw fit to subject this doctrine to a severe and searching re-ex- 
 amination; and upon mature deliberation, declared its unanimous 
 dissent from the narrow and inconvenient rule laid in the ante- 
 cedent cases, and holding)), that a corporation created by, and 
 doing business in a particular State, is to be deemed, to all intents and 
 purposes as a person, although an artificial person, capable of being 
 treated as a citizen, of that State as well as a natural person,*) 
 and that, as such, it may, in strict conformity with the language 
 of the section of the Judiciary Act, sue and be sued by a citi- 
 zen of another State; without regard to the citizenship of the per- 
 sons of whom it is composed. It matters not, therefore, in a suit 
 againts a corporation, if some of the corporators are citizens of 
 the same State with the plaintiff provided he is a citizen of an- 
 other State than that in which the corporation is established, and 
 where the suit must be prosecuted. 
 
 «The doctrine of this case is firmly established. It was fully 
 discussed, re-examined and affirmed in«Marshall vs. the Balti- 
 more and Ohio R. R.» (16 Howard, 314) and applied in the 
 
16 
 «Lafayette Insurance Co. vs. French)) (18 Howard; 404) in the 
 ((Covington Drawbridge Co. vs. Sheperd,» (20 Howard, 225) and 
 in the «Ohio and Mississippi R. R. Co. vs. Wheeler» (I Black 
 226). In the last two cases the chief Justice, in pronouncing the 
 judgment of the Court, reviewed the antecedent cases, and 
 reaserted the rule laid down in Lettson's case, as he did also the 
 decision of the Court in the prior case, of the «Bank of Augusta 
 vs. Earl.» (13 Peters, 512) in which it ivas held that a corporate 
 body can have no existence beyond the limits of the State or 
 Sovereignty which invests it with its faculties and powers. It must 
 dwell in the place of its creation. i> 
 
 It is, therefore, plain that there has been several decisions 
 declaring that a corporation cannot be considered in the enjoy- 
 ment of the priviledges of citizenship of the United States unless 
 all its members are entitled to it and within the limits of the 
 sovereignty which invested it with its faculties. 
 
 But the most essential point is, whether the simple fact of a 
 company being organized according to the law of one of the 
 United States makes it is binding on all the nations of the world 
 to consider it as a citizen of the U. S. within their own territory 
 even when no compact exists on this subjet? 
 
 International law recognizes no other persons than the re- 
 presentatives of the nations and their citezens or sujects, indi- 
 vidually considered. 
 
 Nobody is ever considered as a citizen or subject of a nation, 
 simply because he is connected in interest or otherwise with 
 persons who are such; it is necesary that he individually should 
 bear that character, and hence his rights to the protection of 
 alien Sovereignties. 
 
 We can assign for this, among other reasons, that it is more 
 difficult to recognize an individual by the relations he bears 
 
17 
 
 with a private corporation, than by is direct relations with the 
 country he belongs to; and if on account of this nationality he 
 is to enjoy certain rights in foreign countries the means of prov- 
 ing it, should be easy and unquestionable. 
 
 Now, a nation cannot be compelled to ascertain what requi- 
 sites are established in any fraction of every other country 
 for the organization of private corporations, and whether, in a 
 given case, said corporations have fully complied with such re- 
 quisites. It can, therefore, only be called upon to recognize as 
 citizens or subjects of a State, those who are such according to 
 its fundamental law, or its general laws, unless some other 
 course is explicitly stipulated by a treaty. 
 
 And as between Mexico and the United State there has been 
 no special stiputalation making it bindinng to recognize as ci- 
 tizens, private corporations organized according to the local laws, 
 the Government of Mexico cannot be required to recognize and 
 treat a corporation, as a citizen of the United States, simply 
 because this corporation was organized according to a law of 
 the State of New York. 
 
 It cannot be considered as a citizen of the United States so 
 far as the effects of the convention of July 4 th , 1868 are con- 
 cerned, even admitting that it had an unquestionable right to 
 be so considered in the municipal Courts of the United States; 
 because the convention when speaking of corporations and com- 
 panies could not have meant those who only enjoyed some of 
 the priviledges of citizenship within the United States; but refer- 
 red those only who enjoyed all of them in conformity with interna- 
 tional law, or with the treaties celebrated with Mexico; and accord; 
 ing to neither one of these causes can said company be consi- 
 dered as a citizen of the United States. 
 
 The constitution of the United States has laid down the rule 
 that the Federal Congress alone can legislate in matters of cit- 
 
18 
 iasetiship, and it is, therefore, illegal to consider the claiming com- 
 pany as invested with it, on the sole ground of a law of the 
 State of New York. 
 
 In Mexico, and in all countries of the world, said law can pro- 
 duce no effect whatever: and in order that this company might 
 be considered as an American citizen there, it onght to have 
 been organized according to the laws of Mexico, and only then 
 could any of its collective rights be enforced to sue and be sued. 
 
 Without this essential requisite the company has no existence 
 either for the Government of Mexico, or this Commission; and 
 the individuals who constitute or did constitute it can only be 
 considered as private individuals; it being, therefore, a duty 
 incumbent on them to state and prove their nationality, according 
 to the order ot the Commission of January 21 st 1870. x 
 
 In the present case, therefore, as in the cases of Jennings, 
 Laughland and Co. no. 374, Rudolph Brach no. 462, Hayward 
 and Mc Groarty no. 414, and in all others of companies orga- 
 nized in Mexico, no other claims can be set forth than those 
 belonging to such members of the company as are citizens of 
 the U. S.; and, evidently there were less reasons to recognize as 
 a citizen of the U. S. in regard to Mexico, one company, simply 
 because it was organized and established in New York, than 
 
 \ The Umpire, dismissing the claim no. 99C of the Sau Mareial Mining Co., said: 
 uThore is no proof whatever that the persons who constituted the Company and who 
 are the olaimants were citizens of the United <?lates.» 
 
19 
 another composed mostly of American citizens, and organized 
 and established in Mexico. 
 
 Before closing this matter, we must remark that not one of 
 the individuals who appear as directors or stock-holders of 
 this company, has obeyed said order of January 21 st 1870, the 
 terms of which are absolute and without any exception, and 
 which fulfilment is very easy indeed, as the commission has 
 repeatedly declared. 
 
 There is certainly more reason to consider as a Mexican citi- 
 zen an individual whose name appears on the registry of the 
 national guard, — an institution to which only Mexican citizens 
 can belong, — than to consider as American citizens every share- 
 holder of a company, in which any person can be such; and, 
 still, sundry Mexican claims have been dismissed for want of 
 proof of citizenship, notwithstanding that it appeared on re- 
 cord that the parties interested were inscribed in said registry. 
 
 Finally, what proof is there that all and every one of reci- 
 pients of the indemnification granted in this case, are American 
 citizens? None whatever. 
 
 How must we reconcile that this circunstance should have 
 been overlooked in the present case, when in several others 
 against Mexico, in which small awards were granted, it was 
 made a proviso that those who were to receive such awards 
 should prove their American citizenship? 
 
 In deciding the case no. 232 of Hermann F. WuhT, it was said: 
 «An award can only be made on condition that the recipient of 
 the award shall be a citizen of the United States,» and in the 
 case of Robert M. Couch, no. 234: «The Umpire presumes 
 however that care will be taken not to pay awards to persons 
 who are not entitled to receive them.» 
 
 We have cited these decisions only because they consign the 
 necesity that the recipients of awards, should show that they 
 
20 
 really are entitled to the citizenship they claim, but as to their 
 additional form, containging provisos to be fulfilled in the fu- 
 ture, they certainly constitute an inregularity in a Tribunal call- 
 ed to decide whether or not the party interested in a claim has 
 shown to be entitled to have said claim adjudicated. 
 
 Ihe least that can be said of that conditional form, used only 
 in a few cases, is that it constitutes an irritating privilege. 
 
 In so many cases dismissed for want of proof of citizenship, 
 why was not an opportunity given to claimants to ammend this 
 deficiency, especially when, in some, of them there were good 
 reasons to believe that it was only the result of mere careless- 
 ness? 
 
 Since according to international law this company had a le- 
 gal existence only in the State of New York, or in the States of 
 the American Union, at best, it cannot be considered as a citi- 
 zen of the United States in regard to Mexico and before this 
 Commission; and since the parties interested in the case have 
 not proved their citizenship individually, it must be disallowed 
 in toto. 
 
B 
 
 NATURE OF THE ENTERPRISE UNDERTAKEN BY THE COMPANY 
 IN MEXICO. 
 
 The business of this company organized in New York in No- 
 vember 1865, to buy, denounce and work certain mines in the 
 State of Durango, Mexico, is considered to be «serious and ho- 
 nest,)) and it is declared that nothing in it was rash, deceitful 
 or fraudulent, but that in was undertaken with the sole intent 
 of carrying into effect legitimate mining speculations. 
 
 In the first place, whatever might have been this company's 
 purpose in organizing itself in New York, the fact is that it 
 never denounced or bought any mines at all in Durango. The 
 denounce of some mines and the purchase of others was indivi- 
 dually made by Thomas J. Bartholow and D. Grarth, who after- 
 wards sold their sights to the company, beyond the limits of the 
 Mexican Republic: in New York. See papers nos. 10, 11 and 14. 
 It has not even been alleged that the company did ever make 
 known in the District where the mines were situated their title to 
 the ownership of such mines, by presenting it to some functionnay 
 invested with public faith. In that District, therefore, and in all 
 Mexico, the company was not the legal owner of those mined, 
 and they continued to belong to the persons who had denounced 
 and purchased them, whatever might have been their transac- 
 tions with the company, celebrated afterwards in the city of 
 New York. 
 Whether the business was a serious and honest one in regard 
 
22 
 to Bartholow and Garth, it is, at least, a questionable point, if 
 we recall all the circumstances of the case; but we will return 
 to these afterwards. It will now suffice to investigate whether 
 on the part of the company there was anything rash, or any 
 want of prudence to undertake the speculation in the mines 
 sold by Bartholow and Garth, or an excessive confidence placed 
 in the intelligence and rectitude of these individuals.. 
 
 We must always keep in mind, the condition of that part of 
 the country where such a speculation was to be undertaken. 
 
 In regard to this point the undersigned will only cite some 
 of the many decisions of this Commission, when the matter was 
 at stake. 
 
 In the decision of the «Arco Mining Co» no. 937, for damages 
 suffered in 1865, we read: The Umpire does not doubt that the 
 Company was subject to great losses, but they were due to the in" 
 fortunate state of loar which prevailed.* 
 
 In the case of «D. 0. Shattuck et all,» no. 600: «The Umpire 
 is not surprised that the claimants deem expedient, considering 
 the state of war which existed in the country, to abandon their 
 farm. » 
 
 In the case of Aaron Brooks, no. 898, the first Umpire of the 
 Commission, refering to the time of the French intervention in 
 Mexico, expressed himself in these words: mli was an ill time to 
 begin cotton planting.)) 
 
 How then could an enterprise undertaken at that time in the 
 State of Durango, invaded as it was by the enemies of Mexico, 
 be considered as prudent and discreet? 
 
 Could it be less dangerous to begin cotton planting than to 
 undertake a mining speculation under the same circunstances? 
 
 We find the answer in the decision, of this very case: ((Mi- 
 ning,)) it is there said, «is proverbially the most uncertain of all 
 undertaking. . . .innumerable difficulties cross the miner's path,» 
 
23 
 
 This being so, how could it be said that there was nothing 
 imprudent or rash in undertaking an uncertain mining specul- 
 ation, at a place, the scene then of war, which of itself brings 
 innumerable difficulties to all kinds of enterprises? 
 
 But worse even: Geo: C. Collins the President of the Com- 
 pany declared: (.(Before organising the Company, Thomas Bar- 
 tholow and David T. Garth in their own behalf .and in the 
 behalf of other parties, afterwards members of it, went to Me- 
 xico, to examine and buy the mines; but the Company never 
 sent out a .Commissioner. These individuals did not give false 
 information in regard to the mines, &c.» 
 
 That means that the company relied entirely on the inform- 
 ation of Bartholow and Garth, and on their intelligence and 
 veracity. Is there any reason to take these individuals as infa- 
 lible, as it is necesary they should be, if there is nothing indis- 
 creet in undertaking a doubtful speculation on their simple 
 information? 
 
 Had the company sent out a scientific Commission to examine 
 the mines thoroughly and extend afterwards a minute report of 
 the result of their examination, describing all the circunstance3 
 of the mines, their present condition, and the difficulties that 
 necessarily had to be overcome to make them productive: if in 
 view of such a report, and in consequence of its being favorable, 
 the company had undertaken the speculation, and if such a 
 report had been properly presented to this Commission with a 
 view of impressing on its mind the bright prospect of the 
 enterprise, then, and only then, could the opinion be expressed 
 with some shadow of reason that it had been undertaken not 
 without rashness, as has been said — because such a thing can 
 never be afirmed of mining operations, even when they might 
 have constituted a good business, previously — but apparently, 
 under favorable conditions. 
 
24 
 «Mines of the best reputation and character, says the decision 
 in this very case, suddenly come to an end, either from the 
 exhaustion of the veins or from flooding, &c.» 
 
 If this is true in regard to all mines, what must we say of 
 these, when Juan Castillo del Vallo sold then to Bartholowand 
 Garth, «on account of the insecurity of those deserted places 
 distant from the superior authorities of the State, a cause which 
 had produced some time before, the death of the vendor's 
 brother and the abandonment of their work.» — See Castillo's 
 second affidavit, paper no. 47. 
 
 But of all the notions we have proposed to analyze in this 
 section, the least correct is that asserting that the working of 
 the mines in Mexico by a company established in New York 
 was a legitimate business, that is a business authorized by law. 
 It cannot be supposed that there was a pretension to judge 
 of its legitimacy in view of a law of the State of New York; it 
 would be preposterous to pretend that the legislative power of 
 that State could reach Mexico, so that its laws would be 
 efficacious and obligatory there. 
 
 It certainly could never occur to anybody that because a 
 company had been organized according to a law of the State of 
 New York to purchase lands on the Mexican frontier, the 
 purchase, if made, was legitimate, even though forbidden, as it 
 is, by the laws of Mexico. 
 
 No law of the State of New York, nor even of the Congress 
 of the United States, could render an act legitimate in Mexico, 
 when said act is not so according to the Mexican law. 
 
 Such a law could only produce the effect of rendering obli- 
 gatory in the State of New York the contracts celebrated there, 
 whatever might bn their object in view beyond the limits of 
 the State. Suppose for instance that Bartholow should attempt 
 to deny in New York the personality of the company in regard 
 
25 
 to the contract he made with them, then the company could en- 
 force the State law; but, if this same company in order to prove 
 in Mexico the legitimacy of the mines should plead the State 
 law before any Mexican Court, why, it would deserve to be pun- 
 ished for its disrespect to the national severeignty. 
 
 That the granting to foreigners of the rigt to acquire real es- 
 tate is the sole and exclusive attribute of the sovereignty of a 
 country, is a point that needs no demonstration. In some States 
 of this country the acquisition of such property by foreigners 
 is not legitimate. Parhaps it is not legitimate in New York, and 
 if so, could it be legitimate throughout the Republic of Mexico 
 ly virtue of a law of said State? 
 
 Now, can any law of Mexico allowing a company established 
 abroad to acquire mines in said country be cited? Certainly not, 
 because in all the provisions granting to foreigners the permis- 
 sion to acquire real estate, it has always been made a proviso 
 that they should reside within the national territory, so much 
 so, that by the very fact of being absent two years, they for- 
 feit the right to preserve the property acquired; this however, 
 is not escheated, as perhaps is the case in some of the States of 
 the American Union in regard to real estate of foreigners who 
 die; but it is sold, and its product is delivered over to the owners, 
 who lose all rights to be considered as such afterwards. 
 
 Article 1 st of the law of Feb. 1 st , 1856, reads: «A11 foreigners 
 established and residing in the Rrpublic, may acquire and pos- 
 sessreal state, both in the cities and the country, including 
 mines of all kinds, of metals and coal, be it by purchase, adjudi- 
 cation &c. 
 
 The same provision is contained in articles 1 st and 2 d of the 
 law of March 14 th , 1842. Article 8 th of this law, which has not 
 been abrogated, says: aShould the foreigner, owner of real esta- 
 te, be absent with his family from the Republic for over two 
 
 4 
 
26 
 years, without obtaining permission from the (government, or 
 should the property be transmitted by inheritance or otherwise 
 to a nonresident of the Republic, said foreigner shall be com- 
 pelled to sell it within two years, counted from the day of the 
 absence, or of the transfer of property, as the case may be. 
 Should he not comply, the property will be officialy sold, with 
 all the formalities of law, and of the proceeds of the sale, one 
 tenth will be applied to the denouncer, and the remaining nine 
 tenths shall be placed in safe deposit, subject to the call of the 
 owner. The same proceeding will be followed whenever it shall be 
 proved that the owner of the estate resides abroad, and that the 
 person claiming to be the owner, is only such in trust of the 
 absentee.)) 
 
 It follows from what has been said in this section, that this 
 company did not acquire in Mexico the ownership of the mines 
 for the speculation of which it was formed, but only Bar- 
 tholow and Garth individually acquired it; nor could it acquire 
 legitimately, since it was residing abroad, and morever, that it 
 has not proved the favorable prospect of its enterprize, which 
 can never be called safe under any circumstances, much less 
 under the peculiar ones of the country, where the enterprize 
 was to be established. 
 
 o. 
 
 OFFERS OF PROTECTION MADE BY THE MEXICAN GOVERNMENT TO FOREIGN- 
 ERS WHO WOULD ESTABLISH INDUSTRIES OF ANY KIND IN THE 
 
 COUNTRY. 
 
 Parties interested in this claim have said so much about pro- 
 clamations inviting foreigners to immigrate to Mexico, that 
 
27 
 though they present none of those proclamations, and do not 
 even cite their dates with any precision, people have come to 
 believe not only in their simple existence, but that the Govern- 
 ment assumed to grant special protection and immunities to all 
 industry undertaken with foreing capital. 
 
 And still, though the Mexican Government very sincerely 
 desired to see laborious foreigners starting useful industries in 
 the country, not a single document can be shown or cited emanating 
 from that Government, in which, any promises were ever made 
 to foreigners residing abroad, different from those made to resi- 
 dent foreigners. 
 
 As to immumities, they have only occasionally been offered 
 to immigrants dedicated to agriculture. 
 
 The undersigned entertains some doubts as to the utility to 
 be derived by his country fronTgiving guarantees to all foreign 
 capitals sent there from abroad, with a view of establishing in- 
 dustries with more or less grades of intelligence and discreet- 
 ness; but should it be useful, it might, perhaps, be charged to 
 the Mexican Government, that they did not comprehend their 
 true interests, but never, that they had not fulfilled their pro- 
 mises, as they have never made promises to protect foreigners resid- 
 ing abroad. 
 
 Bartholow and Exall, therefore, and all the other foreigners 
 who managed the interests of the company, might claim for 
 themselves that protection offered to foreigners residing in the 
 country; but the company itself, established beyond the limits of 
 the Mexican territory could claim nothing, absolutely nothing 
 from Mexico, much less on the ground of promises, that have 
 never been made by the Mexican Government. 
 
28 
 
 D 
 
 ALLEGED CAUSE OF THE CLAIM. 
 
 It is generally said, that the authorities of the District where 
 the mines of the company were situatod, did not fulfil the en- 
 gagements contracted by their Government, but acted in hostil- 
 ity towards the company. 
 
 When a burden of paying over three millions of dollars, is 
 pretended to be imposed on a Nation, if it is material at all to 
 show that justice, equity, and the principles of public law so- 
 demand it, the charges brought forth against the authorities, 
 whose responsibility is to be enforced, ought to be made with 
 all due precision. 
 
 What were those hostilities so vaguely mentioned? 
 
 It sems that reference is here made to the complaint of the 
 company. «The complaint,)) it is said, athat the local authori- 
 ties, &c.» 
 
 Let us see then what were the complaints made in the memo- 
 rial of the claim. 
 
 «These — the autorities — always maintained an intense and 
 constant prejudice against the Americans, participating in it not 
 only the civil and military authorities, but also the populace of 
 Mexico, directing their ill— vill especially against those who were 
 dedicated in working the mines, and consequently, against the 
 company they represented.)) 
 
 «This prejudice was still axasperated by the belief that the 
 United States intended to annex the States of Durango, Sinaloa 
 and others, and it was commonly said and repeated by every 
 
29 
 body, that this company had been established and was working 
 to obtain that object. The company's property and the lives of 
 its employees, were threatened by the authorities and the peo- 
 ple. The superintendent of the company was arrested with- 
 out cause, and without having committed any crime or fault; 
 and without submtting him to trial, nor allowing him to make 
 his defence, he was kept in prison and fined. And when said sup- 
 erintendent applied to the civil and military authorities of Du* 
 rango and Sinaloa for protection, his endeavors were rejected 
 with asperity.» 
 
 aSome acts of violence were also committed against the effects 
 and property of the company and against its employees, counting 
 on the support and stimulated by the acts of the authorities; 
 and the employees of the company were thereby so much ^alarm- 
 ed, that it became impossible to keep them at their work. The 
 authorities frequently seized the mule trains of the company, 
 loaded with provisions, and appropriated to their private benefit 
 said animals and provisions. They likewise despoiled the com- 
 pany of a large amount of ores extracted from the mines, and 
 to that effect, they threatened the employees who resisted such 
 a spoliation. Matters came finally to such a straight, that one 
 of the company's employees, in charge of the mule trains was 
 publicly assasinated by the liberal troops, and the animals and 
 load captured, and this act was the object of the praise and eu- 
 logy of the Mexican Officers. The authorities of San Dimas 
 entertained the manifest purpose of driving the company and all 
 the Americans from the place, and to take their property.)) 
 
 «The memorialist adds: that one of the determining motives 
 of said persecution, was to compel the company to leave the 
 country, and to allow the Mexicans to acquire the valuable pro- 
 perty of the company. And in consequence of these persecu- 
 tions, annoyance, outrages and insecurity, it became impossible 
 
30 
 for the company to work the mines, and no other course was left 
 to it, but to abandon said mines, as heretofore explained » 
 
 The causes therefore alleged by claimants were the following: 
 
 1 st Prejudice or ill-will of the authorities against Americans 
 in general, and against the company in particular. 
 
 2 d Threats against the company's property, and against the 
 lives of the employees. 
 
 3 d False imprisonment of the superintendent. 
 
 4 th Harsh rejection of the application for relief for the super- 
 intendent, by the superior authorities of Durango and Sinaloa, 
 when he occurred to them for protection. 
 
 5 lh Acts of violence against the company's property and its 
 employees, supported and stimulated by the authorities. 
 
 6 th Frequent seizure by the authorities of the mule-trains 
 of the company, loaded with provisions. 
 
 7 th Spoliation of the company's ores in large amounts. 
 
 8 th The assasination of an employee of the company by the 
 liberal troops — Their name is not mentioned, nor any detail 
 given. 
 
 9 th Manifest design of the authorities to expel the company 
 from the country. 
 
 It is seen that not one of these causes was specified in the 
 memorial with that precision necessary in a claim. 
 
 Neither this Commission nor any other municipal Court can 
 pass judgment on mere intentions or acts of the will, but they 
 can only do it, when facts are stated. If the persons invested 
 with public authority in the District of San Dimas/actuated by 
 fears, more or less founded that the agents of the company 
 were conspiring against the integrity of the Mexican territory, 
 did not sympatize with them, this circunstance cannot cons- 
 titute of itself a good ground for ;i trial, so long as that want of 
 sympathy did not pass into nets. 
 
31 
 
 To fine a nation because its citizens harbored some fear 
 that some individuals of another country, having already gra- 
 bled from it one half of its territory, and entertaining, as no 
 body can deny ambibitious aspirations to increase its own to 
 the detriment of its neighbors, would be the greatest injustice 
 
 It is certainly to be desired that between Mexicans and Amer- 
 icans the greatest harmony should exist; but whilst said aspir- 
 ations are not onlv maintained but are openly shown, it cannot 
 be expected that the threatened shall love and sympatize with 
 the threatners, and among the masses of the people, at least, 
 who have no means of discriminating between such aspirations 
 and the prevailing spirit of the thinking men of this country, 
 but have only had a chance to come in contact with the adven- 
 turers who have left it for the Mexican States of the frontier 
 and the Pacific coast there to promote annexation, either by fil- 
 ibusterism or under cover of immigration, or of mining specul- 
 ation, the ill-will they profess to all Americans, whom they 
 see undertaking more or less deceitful schemes cannot be even 
 matter of censure. 
 
 The charges of threats on the part of the authorities, acts of 
 violence directed or stimulated by them, seizure of trains, 
 assasination of one of the company's employees, and the pur- 
 pose of expelling its agents from the country, made in a vague 
 manner, without any precision as to dates and without stating 
 minutely the facts, are as deficient, as the general imputations 
 of hostilities, and of false imprisonment of the superintendent 
 of the company, neglecting to give his name or any other data 
 that could enable us to determine the event and cannot be 
 esteemed a sufficient ground on which to base a claim. 
 
 The American Commissioner of whom nothing could be said 
 with less foundation than that he carried his exigencies too far 
 when parties interested in claims against Mexico were involved 
 
32 
 in delivering his opinion in the case of the «Arco Mining Com 
 pany,» no. 937 and alluding to the requirements to be fulfilled 
 in presenting claims before this Commission, said: 
 
 «The least claimant should have done was to have stated in 
 the memorial what taxes and forced loans were levied, on whom 
 and at what date, and what quantity and description of property 
 and the value thereof. This information we were entitled to have 
 in the printed statement of the case.y> 
 
 Had he acted in this case consistently with his theory, he 
 would not have taken the claim of the Abra Company into 
 consideration, because it is still more vague and indefinite than 
 the Arco claim, in whic hat least it was stated that a body 
 of Mexican troops camped near the mines and carried from them 
 powder, implements, &c. This is certainly more definite than 
 the seizures of trains with provisions, without stating when 
 and where they were made, and yet the Commissioner deemed 
 that inculpation to be an ((indefinite charge,^ and refused to take 
 it into consideration. 
 
 But the absolute want of precision is not the greatest defect 
 in this case; it has still a greater one, to which no attention 
 whatever has been paid, vis: the time when it was originally 
 initiated. 
 
 The undersigned does not propose to examine this point 
 under its legal aspect, but simply on the ground of common 
 sense. Leaving aside that the claim was not presented within 
 the term specified by the Convention, and that when it was 
 presented, it did not even appear in the vague shape we now 
 find it in the memorial, but in that of a simple notice given in 
 a letter dated March 18 th , 1870, the undersigned calls the atten> 
 tion of all impartial readers of this argument, to the singular 
 fact of a company — an American company at that who compelled 
 to abandon a brilliant speculation when there were millions in 
 
83 
 it — should abstain absolutely during two years from taking any 
 step towards getting the indemnification to which it now pretends 
 to be entitled. 
 
 How did this Company abandon the speculation? 
 
 George C. Collins, its President ever since October 23 d , 1866, 
 has testified that «he had no knowledge of the circunstances 
 causing the abandonment,)) and that after it took place «nobody 
 has ever given any account of the mines to the company,)) 
 whose interests were in charge of Charles Bxall. 
 
 Here we have a company established in New York, investing 
 hundreds of thousands of dollars in an enterprize, in charge of 
 a superintendent: that this superintendent abandons it without 
 giving any account whatever, that two years are allowed to 
 elapse, and only at the end of them, it occurs to the company to 
 enquire into the circunstances that had caused the abandonment, 
 in order to lay all the responsability on the Mexican Government. 
 
 Is this the proper course for sensible persons, business men, 
 and American speculators to follow? 
 
 The undersigned entertains no fear of being accused of select 
 ing a partial judge, to his part, when he points to the Amer- 
 ican Commissioner to decide this question of common sense. 
 
 In the case of «James Ford vs. Mexico» no. 851 the question 
 at issue was the seizure by Mexican troops of merchandize 
 amounting to $ 105,000; said Commissioner decided it in the 
 following manner: 
 
 «Thus Ford was robbed of property of the value of$ 105,000.)) 
 
 nHe never complained of it to the authorities of his own coun= 
 try, or of Mexico, but patiently sat down under a loss of that mag~ 
 nitude until the 30 th of May 1870, when he telegraphed to a 
 Mr. Giddings in this city to file his claim, &c.» 
 
 On the strong presumption, not to say full conviction, that 
 such carelesness suggested of untruthfulness as to the alleged 
 
 6 
 
34 
 cause of the claim, the Commissioner could not help rejecting i* 
 with disdain. 
 
 What then can we say of a company managed by New York 
 merchants, who having lost, not a hundred thousand, but mil- 
 lions of dollars, as ihey pretend, heard with perfect impassibil- 
 ity of such an enormous loss, without even procuring to know 
 the cause of the disaster? 
 
 It is said that the speculation was abandoned on March the 
 20 th 1868, and the first written report that the company ever 
 received of the cause of the abandonment — this is at least the 
 oldest date presented — was the affidavit of Charles H. Exall, 
 produced in New York, December 20 th , 1869, one year and ten 
 months after the abandonment had occurred. 
 
 It is said in this affidavit that it was determined upon by 
 reason of the annoyances caused by the citizens, and by the 
 civil and military authorities; these are mentioned in a way 
 less vague than in the memorial, and the imperial trcops are 
 likewise designated as authors of the injuries; but not a word 
 is said about the formalities and manner in which the aban- 
 donment was effected. 
 
 This same Exall in another affidavit in behalf of the company, 
 June 11 th 1874, says that his departure from the place of the 
 mines, was sudden and in secret, for fear of losing his life, be- 
 cause the day before Macario Olvera, the Prefect, told him that, 
 it would be better for him to abandon the mines, as he, the Pre- 
 fect, was unable to defend the company against public sen- 
 timent, and that the Mexican residents of the District were 
 determined not to remain any longer out of work &c. 
 
 Let us suppose for a moment that all this was true; what 
 would any man Jof common sense have done in Exall's place? 
 What should any honest man in charge of interests of such ma- 
 gnitude, have done? 
 
35 
 
 Nobody evidently who considers himself worthy of this title 
 would hesitate, to answer that above all, Exall should have 
 consigned in a formal document the state in which those inter- 
 ests were left, and the cause that had determined him to aban- 
 don them; and supposing he was unable to find one single hon- 
 est man in the place he was about to leave, willing to authorize 
 with his signature such a document, as soon as he reached some 
 other place where his life was safe, his first care should have been 
 to produce such a document. 
 
 Exall has not said where did he go to, after leaving the mines; 
 but the witness Antonio Pena, a resident of Mazatlan; said that 
 he lent Exall there, $250 to pay his passage to the United 
 States, adding that he had not been reimbursed of that amount. 
 
 This proves two things: 1 st , that the last superintendent to 
 the mines, after their abandonment, went to Mazatlan: 2 d > that 
 he then had no funds, and 3 d > that the funds of the company 
 were also exhausted. 
 
 Now, what could have prevented Exall in Mazatlan to enter 
 a protest or to produce such a documeut as we have been refer- 
 ring to? 
 
 All this is very improbable, and is rejected by common sense. 
 
 Let any honest man put himself in Exall's place, and compare 
 the course of action he would have followed, supposing true 
 the inculpations made against the authorities of Mexico with that 
 followed by Exall, who can by no means be considered an idiot, 
 and the forcible conclusion can be no other than that there are 
 •no signs of truthfulness in the tardy story of the causes of the 
 abandonment. 
 
 When a person has a ground for complaint against some sub- 
 ordinate authority of a foreign country where his own maintains 
 a representative, allowing that for want of confidence in the high- 
 er authorities of the country he should not apply to them for 
 
36 
 redress — a course that ought never to be approved — nothing 
 more natural and proper than to present his complaint to the re- 
 presentative of his own country. 
 
 If the speculation had actually failed in consequence of the 
 hostilities of the local authorities when in itself it presented a 
 good prospect, Exall would not likely have abandoned it with- 
 out first soliciting through the nearest Consul and the Minis- 
 ter of his own country, such protection as was necesary to count- 
 eract those hostilities. 
 
 And if the representatives of the United States did not ins. 
 pire him with more confidence than the Superior Authorities of 
 Mexico, what pretext can he invoke for not having rendered a 
 justified account of the abandonment of the nimes to the Com- 
 pany, who had placed their interests under his charge? And if 
 the Company did not compel him to fulfil this duty, or, if he 
 did render the account soon after the occurrence, and it has not 
 been presented to this Commission because of its being adverse 
 to the interest of the company, then a person must either be en- 
 tirely bent on seeing such pretensions succeed, or opposed to 
 common sense, in order to admit as the determinating cause of 
 the abandonment, acts of hostility now for the first time brought 
 to light"after the lapse of so long a period, and to suppose that 
 the speculation would'have been a perfect success had said alle- 
 ged acts not intervened. 
 
87 
 
 NATURE OF CLAIMANT'S EVIDENCE. 
 
 The admission of this evidence on the opinion formed of the 
 respectability and intelligence of the majority of the persons 
 whose testimonies constitute it, and of the truth believed to be 
 found in them, is the result of a purely personal appreciation, 
 that the undersigned can hardly expect to see modified on ac- 
 count of this observations. 
 
 The witnesses considered as respectable, are unworthy of 
 any faith in the undersigned's opinion, on account of the not- 
 orious falsehoods found in their testimonies, their manifest par- 
 tiality in favor of the company, and of the means employed by 
 some of them to further the claim. 
 
 In the undersigned's judgment those witnesses cannot deserve 
 credit «who do not tell the truth, all the truth and only the 
 truth,» according to the form used by the English law in taking 
 testimonies, and witnesses are to be judged according to the 
 well known rule in law: bonum ex Integra causa; malum exquo- 
 cumque defectu. 
 
 The undersigned therefore cannot consider as a respectable 
 witness John Cole, who filed before this commission a claim 
 false in most of its parts at least, nor can he find any signs of 
 truthfulness in a testimony in which the sole item of impro- 
 vements in the mines, are pushed to ever half a million of dollars, 
 and in which it is said that all the employees were ejected, 
 when the only one alleged to have been ejected, was Exall. 
 Neither can be consider as a respectable witness Alfred 
 
38 
 Green, the pretended liberator of Mexico, who tried to defraud 
 that nation by presenting a fraudulent claim. 
 
 Nor can he admit Exall the superintendent who abandoned 
 the interests placed under his care, and never gave an account 
 of them, as such. 
 
 As to John C. Brissel, the facts that his knowledge is derived 
 from mere hearsay, and that he, being an American, should 
 have resided at the very place from whence, it is alleged, the 
 company was expelled on account of hatred to the Americans and 
 ?hat during the same month of March 1868, in which the pre- 
 tended expulsion took place, are enough to discard his test- 
 imony. 
 
 Neither was William H. Smith an eye-witness of the causes 
 that determined the abandonment of the mines, and he too, an 
 American, residedjin the District of San Dimas working at some 
 mines, and yet was not expelled. 
 
 John C. Cryder, who calls himself the second Superinten- 
 dent of the Guadalupe mines, does not pretend to have been 
 expelled on occount of hatred to the Americans. He was not an 
 eye-witness. 
 
 Juan Castillo del Valle, the one who sold the mines, has given 
 depositions in favor of the company and for the defense; they 
 differ as to the amount of the p-roducts of the mines, but not as 
 to the causes of their abandonment as stated by Exall. 
 
 Nobody will ever consider Matias Avalos, who has given 
 conflicting testimonies on both sides, and who says that he can 
 neither read nor write, as a respectable and intelligence witness. 
 
 William Clark, John Cole's partner, pretends to have paid in 
 behalf of the Company a loan of $ 600, for which no voucher has 
 ever been filed. He must indeed be considered very respectable 
 if his simple word is to be credited. 
 
 Francis Dana, an ex-soldier in the servioe of Mexico, a wit- 
 
39 
 ness in many a claim against that country and the interpreter 
 of the individual who forged the proofs of this claim, limits his 
 exertions to recomending the merits of said proofs, in the pro- 
 duction of which he took a part. 
 
 Charles Boutier, another claimant against Mexico is a witness 
 by hear-say as to the principal part of the claim. 
 
 James or Santiago Granger, who has given his testimony in 
 the claim, fro and con, and who being in charge of the com- 
 pany's property, sold a part of it, is far from deserving the apel- 
 lation of a respectable witness. 
 
 As to Jose Maria Loaiza, of whose deposition Carlos. F. Ga- 
 lan was the translator, the undersigned has the following reason 
 not to respect him. 
 
 He filed before this commission a complaint against the Uni- 
 ted States, of which Galan was counsel, through the agency of 
 Alouzo A. Adams — the same individual who went to Durango 
 and Sinaloa to forge proofs in this claim — pretending that he 
 should be indemnified in a large amount because a young 
 woman, whom he tried to pass before this commission as his 
 wife, was hung in California by a mob, from which, though, he 
 well knew how to make his own escape. 
 
 The undersigned received from his Government proofs as to 
 the falsehood of the complaint, where upon he discarded it, 
 notwithstanding that Adams gave him some proofs to sus- 
 tain it. 
 
 It appears that George C. Collins, the President of the Com- 
 pany, is one of the witnesses considered most respectable, since' 
 with the sole foundation of his simple testimony the amount of 
 the company's capital, and the amount of the loans made by 
 witness, and of the outstanding debts, have been considered as 
 proved. 
 
 But though the witness declared he had no knowledge of the 
 
40 
 causes of the abandonment of the mines, still he empowered- 
 those who have been pulling the wires in this claim, to charge 
 it to the Mexican Government. Such a course is certainly un- 
 worthy of a respectable person. 
 
 If he believed that he would assume no responsibility by 
 Baying he had no knowledge of the causes of the abandonment, 
 he simply imitated Pontius Pilate's example of washing his 
 hands amongst the innocents. 
 
 Collins, moreover, is one of the most interested in the claim, 
 because, should it fail, how would he ever be reimbursed of 
 the sums he invested in the unlucky mining scheme? He there- 
 fore, did not speak the truth when saying he had no interest 
 in the claim. 
 
 Francisco Gamboa, one of the witnesses through whom Car- 
 los F. Galan knew confidontialy of the threats made by the 
 Mexican authorities, only speaks of a contract for the transport- 
 ation of provisions entered into between himself and the com- 
 pany, and which contract could not be carried into effect on 
 account of the abandonment of the mines; he does not express 
 any cause whatever for it. 
 
 Isaac Sisson, U. S. Consul at Mazatlan, whose course in 
 claims against Mexico cannot but be censured by those who 
 have had a chance to know of it, as the Umpire, certifies, that 
 being once in a store, Adams went in and read in a loud voice 
 Antonio Pena's testimony, stating the advances of money that 
 he had made to the company, and that an old Mexican who 
 heard the reading and that the document was to be sent on to 
 "Washington, snatched it from his hands, and tore it to pieces, 
 and immediatly escaped, and that this old man's name could 
 never be ascertained though both Adams and the consul did 
 their best t» find it out. 
 
 Notwithstating the formal style in which this statement is 
 
41 
 
 certified to, with a view of showing the pains taken by the Mex- 
 icans to prevent any testimonies being presented against their 
 country, it can hardly be believed that in a place like Mazatlan 
 it should be impossible to ascertain the name of the author of 
 such a mischief; but let us admit it to be true; it can only prove 
 Adam's indiscreetness in going about boasting of his success as to 
 the steps he had taken in favor ot the company, and the disgust 
 that falsehoods are apt to inspire when published in the. pres- 
 ence of people who can detect them. Perhaps in Mazatlan, Pe- 
 na's assertion, that he had supplied money to the company in 
 amounts greater than the whole stock he actually managed in 
 his mercantile establishment, was considered simply scandalous, 
 as undoubtedly when other testimonies in which still groser 
 falsehoods are stamped to sustain this bogus claim, come to be 
 published, they will cause surprise and indignation, not in Ma- 
 zatlan and Durango .alone, but all over the Republic of Mexico. 
 
 It was the good luck of claimants, that Adams did not read 
 out loud or publish in Mazatlan,* — other testimonies more im- 
 portant still than Pena's; and it has been one of the principal 
 disadvantages at which Mexico has stood before this Commis- 
 sion, that only the memorials have been known and served 
 there to prepare the defensive evidence, particularly in cases 
 like the present, where it seems a special study has been male 
 not to precise any data. 
 
 And since we have mentioned the alleged dissatisfaction of 
 the Mexicans, at the testimonies adverse to their country, it 
 may be opportune to remark that those Mexicans who condes- 
 cended to sign testimonies of this kind, must have had some 
 special reason to do so, as, unless we suppose them animated by 
 the highest sentiment of love of justice, capable of overpower- 
 ing their patriotism or the interest felt in the commonweal 
 of their country, we must admit that such testimonies were not 
 
42 
 desinterested, but that the so-called General Adams knew well 
 how to employ such means as are efficacious with people de- 
 prived of the most natural sentiments of the human heart. 
 
 We must, therefore, either exalt those witness to heroism, or 
 else humble them unto dust: erect an altar to their abnegation 
 and that prompted them to sacrifice the interests, if not the 
 honor, of their country, or look on them with that supreme in- 
 difference well deserved by those who sell their country for 
 miserable personal interests. 
 
 But the witnesses Galan, Pena, Gamboa, Loaiza, Avalos and 
 the lawyer Chavarria are very far from appearing surrounded 
 with the aureola of heroic virtues, and the undersigned cannot 
 conceive under what title can they deserve any respect. 
 
 Following our judgment of the witnesses by the order of 
 their testimonies, on file, we stumble with that of Nicolas Ally, 
 who prompted by his conscience, thought it his duty to reveal 
 to Adams that a Dr. Rapp had tried to buy him into defeating 
 this claim. According to this conscientous witness, Rapp had 
 fallen out with Adams on account of political questions, and had 
 spoked in a manner scurrilous to the company and favorable to 
 the defense of Mexico. Of course the matter originated with 
 Rapp, without any provocation on the part of Adams; but let 
 this be as it may, the fact is that Rapp, not satisfied with insult- 
 ing the peaceful Adams, proposed to destroy his honest efforts 
 and invited Alley to help him in the undertaking, in which there 
 was plenty of money — ((millions in it, as colonel Sellers would 
 say — because the Mexican authorities were determined to fight 
 and defeat the claim, and to pay liberally if this was accom- 
 plished. But this is not all; Rapp pretended that Alley should 
 declare that Adams had tried to buy him over, to give his tes- 
 timony in favor of the claim, and this was repugnant to Alley, 
 who had always considered Adam's course in the matter as very 
 
43 
 honorable. Rapp enjoined secrecy on Alley who gave him no 
 answer, but went that very day to Adams an^ advised him of 
 Rapp's scheme. 
 
 The undersigned would consider as an insult to the Umpire 
 if he were to place Ally among the witnesses considered as res- 
 pectable. 
 
 The man who debases himself to such an extreme, if not of 
 forging a slander, but of propagating such tales, deserves to be 
 despised by all honest people . 
 
 If those tales prove anything at all it is that Adam's conduct 
 needed some vindication. 
 
 Whoever may read what Adams forged in self defense can- 
 not help receiving an impression entirely adverse to this in- 
 vidual. 
 
 Pedro Echeguren, a Spaniard who had for many years resided 
 in Mazatlan, where he made a fortune, speaks in favorable terms 
 of the Company, of the little or no protection given to foreigners 
 in the States of Sinaloa and Durango, referring exclusively to 
 exactions and forced loans, and complaining of the amount of 
 money his house had had to pay under this title in many years, 
 though, he never, of course, alludes to his gains, without which 
 he evidently would not have continued so long the business; but 
 in order to form an opinion of this individual, it is enough to 
 read the words of another deposition he gave in the'claim of Ben- 
 jamin H. Wyman, n 9 911 — paper n 9 17. 
 
 «That he kuows, and it was notorious that all the authorities 
 respected the persons and properties of foreigners, and particul- 
 arly of the Americans, and he, being a foreigner, had never suf- 
 fered in his property and interests other annoyances than those 
 that are an inevitable consequence of political disturbances and 
 hazards of war, and no injuries whatsoever from international 
 acts.» 
 
44 
 By this phrase it seems that he meant injuries which might 
 give rise to international claims. 
 
 P Can it now be said that when he tried to sustain this claim 
 with his testimony, referring to loans and exactiens, and difficul- 
 ties caused by the war, he did not declare falsely in the matter? 
 But if all this, notwithstanding, Echeguren is to be held as 
 a respectable witness, his testimony must not be mistaken for 
 that of others in which, the alleged causes for the abandonment 
 of the nimes are specified, since on this point, he simply says: 
 «that he did not think it prudent nor safe for the Company to 
 intend to undertake again their mining operations in Tayoltita, 
 nor to go into any expense there, after 1868, when they aban- 
 doned their work on account of the circumstances. » To what cir- 
 cumstances does he refer to? May it not be to the circumstances 
 of the speculation itself, to the quality of the mines, to the 
 amount of the expenditure, &c, &c? 
 
 The next witness whose respectability we must examine, is 
 the Mexican Marcos Mora, Ex-Prefect of th« District of San 
 Dimas. This man, moved, as it seems, by the remorse of a scrup- 
 ulous but sluggish conscience, declares that the authorities of 
 that District expressed themselves adversely to the Abra Com- 
 pany, and decided to expel them, ((although it cannot be said that 
 they acted the same way in regard to other companies,* and that he 
 never heard that the employees worked for the annexation of 
 Mexican territory to the United Slates, » which proves, either 
 that he was deaf, or that Exall and all the rest, who, with or 
 without reason declared that this was a charge generally made 
 against them, lied. 
 
 But the most curious thing is that this same witness says in 
 this very same deposition that the Governor of the State of Du- 
 rango, Senor Ortiz de Zarate, applied to him for information in 
 regard to the Company; that he gave it in. terms very unfayor.- 
 
45 
 able to the Company, stating that ait was composed of Americans 
 wb» like all foreigners, were trying to ruin Mexico,)) and that 
 it was precisely on account of this information that said Govern- 
 or denied the protection he was asked for. 
 
 A villain that in this manner acknowledges himself as the 
 principal cause of this claim, and who contradicts himself with 
 so little delicacy, can only deserve the most profound and utter 
 contempt. 
 
 Let us next see what opinion can we form of the lawyer Je- 
 sus Chavarria, another Mexican who pretends to make us believe 
 that he constituted himself in the accusser or denouncer of 
 the authorities of his own country, simply for his love of justice, 
 without any personal interest in the claim of the company who 
 is his client, and paid or owe, Mm fees for Ms services. 
 
 This great apostle of truth says that the company employed 
 him to sollicit the protection of the Government of the State of 
 Durango in order to put a stop to the robberies and outrages 
 it was a victim to, in Tayoltita; and though he repeatedly asked 
 for said protection, it was without any result, as the Governor 
 answered that he did not wish to meddle in private matters. 
 
 Bxall, paraphrasing freely this answer, related that Ortiz de 
 Z&rate had said to Chavarria that he was determined to drive 
 all the Americans from that part of Mexico. Perhaps Mexico 
 may be thankful that Chavarria did not carry so far Ms love of 
 truth as to say the whole truth in relating this answer, but he left 
 Exall to do it, rendering the omission palpable: which of the two 
 said an wntruth? 
 
 But the one thing in which the justified Chavarria found no 
 difficulty as win estimating the value of the mines of the com- 
 pany in five millions of dollars, and he did not hesitate either in 
 testfiying as to all the hostilities against the company, as if he 
 had been an eye-iwtness to them. 
 
46 
 
 These circunstances show that if Chavarria's respectability 
 is more than doubtful his want of intelligence as a lawy^ is. 
 unquestionable. 
 
 The least that could be expected of him is that he should 
 have known the fundamental law of his own country, and the 
 manner it has established to enforce the rights it guaran- 
 tees. 
 
 This instrument in its 8 th article, declares inviolable the right 
 of petition respectfully exercised hy writing, and that to every 
 petition there shall be a corresponding resolution, which shall 
 be communicated to the party interested. 
 
 This firstrate lawyer ought then to have started«by present- 
 ing in writing his application for protection to the Governor. If 
 he did so, but the resolution was not communicated to him in 
 writing, he ought to have resorted to the corresponding remedy 
 which he would have found in article 101 of the constitution? 
 and in^the writ called «amparo.y> If the District judge paid no 
 attention to his complaint, he should have applied to the circuit 
 court, and if even there it was disregarded, he should have 
 appealed to the Supreme Court of the nation. It would have 
 been absolutely impossible that of all these efforts he should 
 have failed to get some documentary evidence to present. 
 
 Without some document of the kind no court can believe 
 upon his word a lawyer pretending to have done all he could 
 and ought to have done in the in interest of his client, nor will 
 common sense recognize him as an intelligent lawyer. 
 
 After Chavarria, comes Charles B. Dahlgren who to show us 
 his respectability, begins by telling us that he is the son of the 
 late Admiral Dahlgren, and a consul of the United States in 
 Durango. 
 
 All this, though, can be of little service to the company, be- 
 cause deponent refers to the state of the mines and property 
 
47 
 after the abandonment, and he speaks of mere hear-say as to 
 its causes. 
 
 Deponent says that in the enterprize of which he is a super- 
 intendent,- the only American one that has escaped the fury of 
 the Mexican authorities, he availed himself of the opportunity, 
 by purchasing a part of the property at mere nominal prices 
 from private individuals, in the acquisition of which he was 
 sustained by the Judge of the I st Instance of San Dimas accord- 
 *ng to a contract. 
 
 Here, then, we have the son of an Admiral and Consul taking 
 advantage of robberies, but sustaining the claim, to which said 
 robberies serve as a cover. If a person who acts in this manner 
 is a reputable witness, the undersigned must then candidly 
 confess that he does not understand the meaning of the word. 
 
 In the rebutting evidence, besides the President of the com- 
 pany and the superintendent Bxall, we have as witnesses Ralph 
 Martin, Thomas Bartholow, the initiator of the enterprize and 
 the principal party in the claim, Sumner Slaw Ely as of counsel 
 for claimant, Alonzo Adams, Atto. of the claim, and to cap the 
 climax, the celebrated Carlos F. Galan. 
 
 There is no necessity for us to examine whether all those 
 notoriously interested in the claim, are entitled to be considered 
 as reputable men, and it would suffice to say something in regard 
 to the first name; but the undersigned will not spare a special 
 mention to Galan, although he has already spoken in general 
 of the Mexican witnesses. 
 
 Rapp Martin says that he began to reside in San Dimas the 
 very same year that Exall went away from there, and this 
 shows that if there was actually any animosity against him, it 
 was not as an American, but for personal reasons. 
 
 He says that Adams was recommended to him by a friend 
 in New York, when said Adams undertook his trip to Durango 
 
48 
 in order to procure evidence in this claim; and he endeavors to 
 praise the recommendation; trying to give weight to Adam's 
 proofs, running down those who attack them as the result of 
 fraud and intimidation, going so far in this respect as to say 
 magisterially that one of the witnesses of the defense does not 
 know the meaning of the word ((extrajudicial.)) 
 
 He says he had in charge some mines near San Dimas, but 
 does not say that he ever was hostilized. Was it perhaps be- 
 cause he gave a share in them to authorities, or did he slander 
 them when saying that this was the only way to obtain protec- 
 tion? 
 
 If this, notwithstanding, he must be considered as a reputable 
 witness, he will not at least be considered as infallible, and his 
 appreciations in regard to his guest the well recommended 
 Adams, will not be enough to invest Adams with respectability, 
 not even to convince us that he behaved well and honestly in 
 procuring proofs, which is the tendency of deponent's testi- 
 mony. 
 
 Carlos F. Galan, is a native of Spain, as he says; but he went 
 to Mexico when fourteen years old and remained there up to 
 1872, having been a member of the Assembly, Judge of the l !t 
 Instance, Governor &c. 
 
 ((When in 1870 and 1871 there was an excitement in Mexico 
 on account of the claims filed before this Commission, he got 
 posted in many thing relating to said claims, was consulted in 
 several cases, and examined some witnesses. » These words of his, 
 are corroborated in many claims in which he appears in part- 
 nership with the U. S. Consul for the preparation of proofs. 
 
 He says that the Governor of the State of Sinaloa General 
 Domingo Rubi, his secretary Don Jos<§ D. Martinez, the Judge 
 of the l et Instance of Mazatlnn, J. Aldrete, and the District at- 
 torney Gaona, used all their efforts to defeat the claims against 
 
49 
 Mexico; that said judge destroyed a testimony he had received 
 and which was favorable to the claimant Geo. Briggs; that 
 Gaona retained in his power some depositions in the same case, 
 until it was too late to file them — as if there had been any lim- 
 itation as to time for filing evidence in this Commission for Ame- 
 can claimants; — that Martinez declared that he would punish 
 any one that should give testimony in favor of «the gringos;* 
 that Trinidad Gamboa said to witness that Rubi had threatened 
 him with having him pressed into military service if he did not 
 recant a certain deposition; that Rubi said to witness himself 
 that he would do all in his power to defeat the claims, as the 
 great object was to snatch from Mexico another 'portion of its 
 terrytory; that he, Galan, wrote the depositions of Trinidad 
 and Francisco Gamboa and Jose" Maria Loaiza in the consulate 
 of the U. S., and that Adams had no intervention in them — was 
 there any necesity for him to interfere when Galan was there? — 
 and that Adams gave no money at all to the witnesses who 
 testified for him, but only paid their travelling and other ex- 
 penses; according to law, — * there is no Mexican law granting 
 such expenses.-—- 
 
 Deponent knows that Corona and his officers and soldiers le- 
 vied forced loans, not only because he heard it from the officers, 
 but also from those who suffered the injuries. 
 
 With this foundation, he affirms that sometimes provisions 
 were taken, &c. 
 
 In view of this abstract of deponent's testimony shall we 
 need say a word as to his respectability and desinterestednesa 
 in denouncing and slandering the authorities of his once adopt- 
 ive country, where he received his education and was honored 
 with distinguished posts in civil office? 
 
50 
 
 F 
 
 FAVORABLE ESTIMATE OF CLAIMANTS PROOFS. DISREGARD TO THE 
 DEFENSIVE EVIDENCE. 
 
 The words ((notwithstanding what is stated to the contrary 
 by the witnesses produced by the defense, the Umpire. is cons- 
 trained to believe, &c.» clearly reveal that the proofs in behalf 
 of Mexico have not due consideration; but as I will take up this 
 point in section H it is advisable now to limit our observations 
 to what has been thought that claimant's proofs present as oer- 
 tain, viz: 
 
 That the authorities of Tayoltita and San Dimas, far from 
 giving caimants that protection and assistance, offered to them 
 by the Mexican Government, and to which they were entitled 
 by treaty, did not only show themselves aminated by a spirit 
 of bitter hostility against the company, but stimulated the mexi- 
 cans employed by the company to follow a similar course, and 
 even intimidated them into refusing to work for the Americana, 
 who had employed them. 
 
 We must refer in the first place to what has already been 
 said, that it is not true that the Mexican Government ever made 
 such special offers of protection and assistance to foreigners em- 
 ployed in mining speculations, but only to agricultural colonists, 
 and much less to corporations residing abroad. 
 
 As to the allusion in regard to the treaty between Mexico 
 and the United States, we must remark that the only protec- 
 
51 
 tion offered id that instrument to American citizens in Mexico, 
 refers only to those already established there, and not to those 
 who live out of the country, 
 
 The stipulation relating to this point, is article 14 th of the 
 treaty of 1831, which reads: 
 
 «Both contracting parties promise and oblige themselves to 
 give special protection to the persons and properties of the cit- 
 izens of each that may he found in their respective territories, sub- 
 ject to their respective jurisdictions, whatever may be their occup- 
 ations, and whether they reside in the country or ore transients 
 &c, dec. 
 
 As this company has never been in Mexico, neither as resid- 
 ent or transient, since it is permanently established in New York 
 a right introduced only for foreigners residing in Mexico and 
 subject to its jurisdiction, cannot be invoked in its favor. 
 
 Has this Company resided in Mexico, subject to its jurisdic- 
 tion? 
 
 Could the mexican Government extend its jurisdiction to New 
 York, in order that it might reach this Company residing there? 
 
 Certainly not, and there are no proofs whatever that the au- 
 thorities of Mexico were advised of the legal existence of this Com- 
 pany in the United States, by the presentation of their charter 
 duly legalized. 
 
 It has also been shown that this Company could not have 
 any legal existence because the law does not authorize its acts 
 there. 
 
 Therefore though in the common language it might be said 
 that an American Company was the owner of the Abra mines, 
 such Company had no standing before the Mexican law, nor 
 could it have enforced any right in such a capacity. 
 
 It was only personally that either Exall or some other indivi- 
 dual in charge of the interests of the Company might have claimed 
 
52 
 the protection of the authorities, as if said property was their 
 own, and so far as their said interests were concerned, it 
 was immaterial whether they belonged to a Company residing 
 abroad. 
 
 But as to this Commission it is indeed very material to deter- 
 mine who is the real claimant, and not to overlook the fact wheth- 
 er the company had any legal personality in Mexico, and could 
 exact any protection there. 
 
 As to the other individuals who might have asked for protec- 
 tion, Bartholow, Laguel and Exall, the first and the last named 
 said they had no interest in the claim, which is tantamount to 
 saying that they did not prefer it for their personal injuries nor 
 in their own behalf. As to Laguel, why, not even as a witness 
 does he appear in the claim. 
 
 Still, let us suppose, that although Bartholow and Bxall were 
 the only individuals who had any right to the protection of the 
 authorities so far as Mexico was concerned; as to this Commis- 
 sion, a company organized and established in New Yor might 
 have right to claim for injuries caused to those individuals with- 
 out its being an impediment for them to be admitted as witnes- 
 ses of their own wrongs; and let us assume as a basis for the 
 examination, of these wrongs, the testimonies of said witnesses; 
 notwithstanding that they were produced at a time when they 
 could never serve as a foundation to investigate the facts. 
 
 Thomas H. Bartholow, the founder, a shareholder and the 
 first superintendent of the business, in his deposition of June 
 22, IS 74 said on this very topic: 
 
 «The local authorities went two or three times to the mines 
 and ordered the men employed to quit their work, under the 
 pretext that we did not employ all the men who needed em- 
 ployment and that we did not work the mines as it pleased 
 them.» 
 
53 
 Who were the persons who committed. such high-handed pro- 
 ceedings under cover of being authorities? When were these 
 outrages committed? Who witnessed them? Bartholow does 
 not say a word in regard to this, and if we examine all the tes- 
 timonies one by one, we will not find in them any of these es- 
 sential points. 
 
 Will such a vague testimony and of a person notoriously in- 
 terested at that, be sufficient to receive as true the facts he 
 states? 
 
 Exall, the third and last superintendent of the concern, in 
 his testimony of June 11 th 1874, says: 
 
 aSoto and the Prefect Marcos Mora — we must not forget the 
 latter's testimony in favor of the company — incited the work- 
 men to muting, telling them falsely that it had gone there to 
 annex Durango and Sinaloa to the United States, and ordered 
 those who were at work to quit. Aquiline- Calderon tried once 
 to work in the Cristo mine, and he had to leave the service of 
 the company by force of arms, and trough the orders of Soto 
 and Mora.» 
 
 As Exall is the sole witeness who relates these facts, we are 
 eft to understand that part of the decision referring thereto, is 
 based on his simple assertion. 
 
 And still, there is no testimony in the whole file that deser- 
 ves less credit than Exall's, because in all the attempts imput- 
 ed to the local authorities of Tayoltita and San Dimas, Ave al- 
 ways find him playing the part individually of a victim; becau- 
 se he had some resentment with some of those authorities, if 
 not with all; because as the superintendent of the mines, it was 
 his duty to give an account of the interests he had under his 
 care to the company, and he did not fulfil this duty; because he 
 has been charged by the witnesses of the defense of having 
 squandered money belonging to the company in gambling, be- 
 
54 
 cause he has 1 a manifest interest in sustaining this claim; and 
 finally, because his testimony is insterspersed with the grosest 
 falsehoods, such as the assertions that all the trains and mules 
 of the company captured by the imperialists were not worth 
 over $1500: that the pile of iepetate out of the mines, was placed 
 there after the abandonment of said mines, by the company: 
 that some twenty tons of ore produced about $17,000 worth 
 of silver, and that the ores produced on an average $675 per 
 ton, and notwithstanding, which he charges a million of dollars 
 for about one thousand tons of all kinds of ore. 
 
 The sole circunstance that this charge was not consigned in 
 the memorial and could not therefore have been a matter for 
 rebuttal, would be enough in any Court to disallow it. 
 
 Can there be anything'more iniquitous than to condemn a par- 
 ty on a fact, the imputation of which was not brought in time 
 to his notice, or more unjust than to accept as proved such a 
 faot, by the simple affirmation of the pretended victim of the 
 wrong? 
 
 The undersigned defies any person, even the most prejudiced 
 in favor of these claimants, to designate which are the satisfac- 
 tory proofs presented in time that the local authorities of Tayo- 
 tlita and San Dimas intimidated the inhabitants into desisting 
 from the further prosecution of the works of the mines, mention- 
 nig the dates and circunstances of such intimidation. 
 
 Or. 
 
 IMPORTANCE OF THE ACTS OF THE LOCAL AUTHORITIES IN REGARD 
 TO THE COMPANY. 
 
 What the incessant and vexations' annoyanoes of the employ- 
 yees of the companv by the authorities of Tayotlita and Sa,n 
 Dimas consist in? 
 
55 
 
 What constitutes their unjustifiable intervention in the bus- 
 iness of the company? 
 
 The only fact that can be considered as proved, is that from 
 the 3 d to the 21 th of June, the Judge Guadalupe Soto and the 
 Prefect Marcos Mora — the same individual whose testimony 
 this company has filed in evidence — addressed some commun- 
 nications to the manager of the La Abra smelting works about 
 the wages of the workmen, calling his attention to the necessity 
 - . of coming to some arrangement with them, and requesting that 
 they should be allowed to pick up some ores, whilst the works 
 of the mines were paralyzed. 
 
 In order to pronounce as unjustifiable this intervention, it 
 would be necesary to weigh all the circunstances that produced 
 it, and see whether the common interest of the locality and 
 the necessity of preserving public tranquillity and of preventing 
 greater evils, could not, at least, be an excuse for it. 
 
 But since, without -bearing in mind such circunstances, it is 
 pretended that even though the superintendent of the mines 
 paid his laborers in goods and at the prices he choosed to fix on 
 them, and even though the laborers seemed to be inclined to 
 commit excesses, thereby endangering public tranquility and the 
 interests of the whole community, the local authorities should 
 have refrained from making any suggestion whatever to the sup- 
 erintendent, said communications can only prove that once in 
 June 1867, the local authorities tried to interfere in the bus- 
 iness, but not that they incessantly annoyed those in charge 
 of it. 
 
 And is Mexico to be condemned to pay such an enormous 
 fine on account of this momentary intervention, the immediate 
 results of which have not been demonstrated? 
 
 How can we help being surprised that an American company 
 who just at the beginning of 1868 had extrated from 20 tons of 
 
56 
 ore, not less than $ 17,000, should abandon the mines yielding 
 such products, just because nine months previous and when 
 their works were paralyzed its permission was requested to 
 allow some laborers out of work to search amongst its worth- 
 less ores something that might cover their wants? 
 
 It was also said that claimants' lives were in danger: «For 
 this reason, as well as for the well grounded fear that their lives 
 were in danger, they resolved to abandon the enterprise.)) 
 
 It can easily be understood that this observation does not 
 refer to all the bondholders or managers of the business, who 
 are the claimants in this case, and whose lives certainly, were 
 not in danger at the mines; but it refers to the persons employed 
 there, by the company. 
 
 But, who were those persons? Who were the individuals who 
 abandoned the mines? 
 
 Nobody else but Exall. At least, his is the only name we find 
 on the files. 
 
 But what proof is there thatExall's life was in danger? Sole- 
 ly and exclusively Bxall's own word. There is not a single 
 person in his company at the time of the abandonmont to tes- 
 tify that the danger really existed. 
 
 Not even James Granger, who in his first affidavit produced 
 before Consul Sisson of Mazatlan on the 20 th of May 1870, said 
 that he was the second superintendent of the mines and that 
 he kept a memorandum of the names of the persons employed 
 in them, has told us a single word about their lives ever having 
 been in danger. 
 
 And if anybody's life besides Bxall's should have been in 
 danger, it would certainly have been his lieutenant's. But we 
 notice that, either by Exall's orders, as Granger pretends, or 
 without it, as Bxall and the President of the company say, the 
 fact is that Granger did not only remain at the mines, but dis- 
 
57 
 posed of the property, and is now, as it appears, one of the ac- 
 tual possessors of said mines. 
 
 Unless, therefore, that we give to Exall's word full probatory 
 force, we cannot take it for granted that his life, and much less 
 the lives of the other employees of the company, whose names 
 are not given, were in danger at the -time of the abandonment 
 of the mines. 
 
 H 
 
 THE DEFENSIVE EVIEENCE CONSIDERED AS FAVORABLE TO THE CLAIM. 
 
 As immediately after saying that the facts on which this 
 claim is founded have not been refuted nor even weakened by 
 the defensive evidence, it is added: «on the contrary he — the 
 Umpire — believes that the local authorities were determined to 
 drive the claimants out of the country,)) we must necessarily 
 infer that said evidence is considered as corroborative of such 
 a belief. 
 
 And still that evidence only shows: 
 
 l Bt That there was no ill-will against the Americans in the 
 neighborhood of the mines; in corroboration of which the Amer- 
 ican companies working, whithout suffering any hostility, the 
 mines of «La Candelaria» and «Bolanos,» are cited. 
 
 2 d That the mines we are speaking of, were productive only 
 when worked with economy, its ores being smelted at a very 
 reduced cost. 
 
58 
 8 d That the Agents of the company destroyed the old mill, in- 
 troduced some expensive machinary, kept numerous employees, 
 and, in short, that they intended to carry the speculation on 
 such an expensive plan, and at such a cost beyond the yield of 
 the mines; and. 
 
 4* That for this reason, and for no other, — much less on account 
 of hostilities on the part of the authorities, — -they determined to 
 abandon the business as soon as they realized that it did not cor- 
 respond to their expectations. 
 
 True it is that some of the witnesses say that the laborers 
 were note willing to receive their wages in goods; but in order 
 that this statement should be received as corroborating the 
 claim, it would be necesary to establish as a rule that the Mex- 
 icans were bound to work for the Americans receiving their 
 wages in the shape they chose to fix. 
 
 On the contrary, the defensive evidence far from sustaining 
 the claim, based on the abandonment of the nimes on account of 
 the persecution declared by the authorities, — being in accord with 
 claimant's proofs simply on the fact of the abandonment, — show 
 as its true cause bad management, as to the scale on which the 
 enterprise was carried, and the want of funds to continue it. 
 
 Leaving aside therefore all that part of the defensive evidence 
 referring to the criminal means employed to obtain proofs in 
 behalf of the claim — strong presumptions of which exist even 
 outside of said proofs, — it is left for common sense to decide 
 between these two explanations of the abandonment. 
 
 1 st A business, with a fair prospect of reaping immense pro- 
 ducts, and having at its disposal sufficient funds to overcome 
 ■eny difficulty, is abandoned on account of the persecution de- 
 clared by one or two persons invested with local authority. 
 
 2 d The business fails because the products are less than the 
 disbursements necessary to obtain them. 
 
59 
 
 Is this last extreme, by chance, anything unusual, surprising 
 or improbable? 
 
 Is the first reasonable, and, above all, is it in keeping with 
 the energy of American speculators, whose perseverance in 
 lucrative undertakings is proverbial all over the world? 
 
 I 
 
 DENIAL OF PROTECTION BY THE LOCAL AND THE SUPERIOR 
 STATE AUTHORITIES 
 
 Let us overlook the denial of protection from the local author- 
 ities, from whom appeal was taken — it is said — to the superior 
 officers of the State, and examine what proofs are there that such 
 an appeal was ever made. 
 
 The expression ((superior Authorities)) used in plural, seems 
 to involve some equivocation, since it has not been alleged that 
 application was ever made to any other officer but to Governor 
 of the State of Durango, 
 
 We have already spoken of Chavarria's testimony, showing 
 the want of intelligence, if not of character, of this witness and 
 actor in the matter. 
 
 We next find Marcos Mora's affidavit in which he says that 
 in July 1867, he saw Chavarria in Tayoltita, and in that same 
 month or the ensuing, he went with him to the La Abra mines 
 and smelting works, where they remained two days together, 
 examining the mines; that in October, Chavarria told witness 
 that the company had employed him to present a complaint to 
 
60 
 Governor Ortiz de Zarate, for the injuries and persecution they 
 had suffered at San Dimas, in order to get the protection of said 
 Governor; that in consequence of this complaint, Sr. Ortiz de 
 Zarate called Mora and questioned him in regard to the behav- 
 iour of the company, and Mora said to him that it was composed 
 of Americans, who, like all foreigners, were trying to ruin Mexico, 
 and the Governor denied his protection; that said Governor had 
 appointed deponent as Prefect of San Dimas on March 1 st 1867, 
 and that he accepted deponent's resignation in July of said year. 
 
 It must be remembered that this is the very same Marcos 
 Mora who in June and July 1867, addressed to the manager of 
 the La Abra mill the official notes we have spoken of, in 
 regard to the wages of the workmen, requesting that they 
 Bhould be allowed to pick out some ores. We must remember, 
 likewise, that in the same month of July, or in the ensuing 
 August, Mora and Chavarria visited the mill, and that it 
 was in July too that, as he says, he sent in his resigna, 
 Hon. If we read Chavarria's testimony, we will find that 
 there is no truth in Mora's resignation, but that he was 
 tried on account af his bad behaviour as Prefect of San Dimas, 
 and Chavarria, the company's lawyer, was his counsel. What 
 credit can we give to the testimonies of the persecutor of the 
 company and of its defender, both declaring in its favor? 
 
 Let the Umpire compose the two testimonies, and then decide 
 whether they deserve any attention. 
 
 The other witness who testifies about Sr. Ortiz de Zarate 
 having denied his protection, is Exall, who in his affidavit of 
 May 1874, says: 
 
 «I personally solicited the protection; Jesus Chavarria, the 
 most distinguished lawyer in Vie State of Durango, also sollicited 
 it in the name of the company. It was denied in both cases. 
 Chavarria told me that Zarate was determined to drive all the 
 
61 
 American Companies from that part of the country. In 1867, — I 
 believe it was in July, — I applied to Governor Z&iate, trying to 
 get not more than a letter directed to the Prefect and'District 
 Judge of San Dimas, requesting them not to trouble me in ray 
 work. I then received from said Governor the answer that the 
 company ought to abandon the enterprise, as popular sentiment 
 was opposed to the proclamations of President Juarez.v 
 
 Senor Ortiz de Zarate could never have referred to proclam. 
 ations which have never existed; but leaving apart this allusion 
 made by Exall, trying to induce belief in their existence, it will 
 be noticed that he pretends to have made his complaint in July 
 1867, the very month precisely in which Mora addressed him the 
 communications above referred to, and the same in which Mora was 
 dismissed and tried, a proceeding that could certaiuly have been 
 more efficacious than to adress a simple letter of recomendation; 
 as it would have been more proper for a distinguished lawyer, like 
 Chavarria, to accuse Mora than to stand for him as of counsel. 
 
 But let us suppose that Mora's dismissal from office had noth- 
 ing to do with Bxall's complaint, and that said complaint, and 
 Chavarria's were actually presented during the month of Oct- 
 ober. 
 
 Should they be satisfied with a simple verbal denial of the 
 Governor? 
 
 "Was the Governor the highest irresponsible authority of the 
 Mexican Republic? 
 
 Certainly not. They could have complained of the negligence 
 of that officer to the President of the Republic, and only in case 
 that he should refuse to interfere, could it be said that all the 
 administrative resources had been exhausted. In October 1867 the 
 Constitutional Government had been reinstated at the capital 
 of Mexico and nothing could have been easier than to apply to it. 
 
 Recapitulation. As the only proofs of the denial of protection 
 
62 
 on the part of the Governor of Durango we have the simple as- 
 sertions of Chavarria and Exall, without any documentary evidence' 
 Against" that, we have the data furnished by these same in- 
 dividuals of the dismissal and trial of Mora on account of his 
 bad behaviour as Prefect of San Dimas, and we have too the 
 testimony of this wretch, upholding his defender Chavarria in 
 parts, and contradicting him in others, and conflicting with him- 
 self in regard to his inculpations against the agents of the com- 
 pany, since he denies ever having heard any inculpation against 
 them, and still says that he informed Governor Ortiz de Zarate 
 that those agents were trying to ruin Mexico. 
 
 With such testimonies, can we accept as true that the protec- 
 tion of the Governor of Durango was asked for and denied? 
 
 CLAIMANTS DID NOT USE THE JUDICIAL RESOUBCES. — A REMEDY THAT WAS 
 
 NOT EMPLOYED. 
 
 The undersigned has heard with great surprise of the theory 
 that vheu the political authority of a place shows some animad 
 version to a foreigner and the Governor of the State is indif- 
 ferent to the oomplain made on this account, the foreigner is, 
 thereby, excused from using any judicial remedy to defend his 
 rights, and the country is to be held responsible for the injuries 
 that he may resent. 
 
63 
 This theory implies that the judiciary of a country under a 
 constitutional regime, is subordinate to the political or adminis- 
 trative power, so that against the acts of the latter, the course 
 of justice is inefficacious. 
 
 Without entering into this general question of public law, it 
 will be enough to say that the fundamental law of the United 
 States of Mexico has" placed under the protection of the federal 
 judiciary all the individual guarantees, prescribing that «all com- 
 plaints on account of laws or acts of any authority that violate 
 or curtail these guarantees,)) shall be brought before the judicia- 
 ry — Article 101 of the Constitution. — 
 
 See the law regulating this article, issued Nov: 30 th 1867, in 
 force in 1868. 
 
 In Mexico therefore, there is no authority, no matter however 
 so high, against whose acts it may not be possible to appeal for 
 the protection of the federal judiciary, the Courts of justice being 
 organized on a basis of absolute independence from all State 
 authorities and tribunals. 
 
 The Judges who constitute those Courts are appointed by 
 the President of the Republic, through the nomination of the 
 Supreme Court, and they cannot be removed from office wit- 
 hout first being tried and found derelict m the fulfilment of their 
 duties. 
 
 The protection of the federal judiciary, thus organized, has 
 been and is efficacious, even against the acts of the President, 
 which more than once have remained without effect through 
 the instrumentality of the judiciary. 
 
 At the beginning of 1868 the federal Courts had been reesta- 
 blished all over the country, and nothing could have been easier 
 to the Agent of the Company than to file his complaint against 
 the authorities of San Dimas and Tayoltita with the District 
 Judge of Durango. 
 
64 
 Why should wo believe that this legal remedy would have 
 been useless? 
 
 la the case no. 374 of ((Jennings Langhland & Co.» the charge 
 was brought against Mexico not simply of ill-will of the local 
 authorities against claimants or their Attorney, but of an unjust 
 and illegal sentence, as it was alleged, passed on claimants by 
 the Judge of the 1 st Instance of Minatitlan. 
 
 In the decision of this case it was said: «The Umpire does 
 not feel himself called upon to decide whether the abovemen- 
 tioned sentence was iust or not. If the claimants considered that 
 it was not so, they failed in their duty in not appealing to a higher 
 Court against the conduct of and inferior judge, with a view to hh 
 punishment and to the recovery of the damages; but they appear 
 to have taken no steps whatever either themselves or through 
 their Agent to avail themselves of the resources open to them. ...» 
 
 «The Umpire does not conceive that any Government can thus 
 be made responsible for the misconduct of an inferior judicial of' 
 fleer when no attempt whatever has been made to obtain justice 
 from a higher Court, y> 
 
 The parties interested in the claim, not satisfied with this 
 decision, attempted to prove that at the time there was no sup- 
 erior Court to appeal to. 
 
 Their petition for a rehearing was, nevertheless, disallowed, 
 amongst other reasons for the following: 
 
 «The Umpire has been given to understand that there existed 
 at the time a Court of appeal at the city of Veracruz, but if this 
 
 was not tho case he cannot doubt that as the circunstances 
 
 of the revolution had prevented the claimant, through his Agent 
 from presenting his appeal before that Court, he would have 
 
65 
 been permitted to do so upon the reestablishment of the author- 
 ity of President Juarez in Jalapa and from the moment of the 
 renewed sitting of a legal Court. » 
 
 Is there any substantial difference between this case and that 
 of the claiming company? 
 
 None whatever. Because if there was a judicial decree against 
 the Attorney of Jennings Laughland & Co., ordering him to 
 deliver some property he had under his charge, there was also, 
 as it is pretended, a judicial order against the agent of this 
 company for him to vacate the mines. If in that case it was the 
 Attorney's duty to appeal from the judicial decree which was 
 notified to him, Exall in this case should have answered that 
 he would not submit to the decree, and if the Judge insisted, 
 then he should have appealed from the Judge's determination 
 to the Superior Court of the State. 
 
 If at the time said Court did not exist, he should have waited 
 until it was reestablished, when the war should be over. 
 
 And if instead of litigating before the State Courts he prefer- 
 red to apply for protection to the federal Courts against the 
 local authorities, he also had this resource at his disposal at the 
 termination of the war, and was as much in duty bound to em- 
 ploy it, as the Attorney of Jennings Laughland & Co. was 
 bound to follow the appeal. 
 
 What difference could it make, that the Judge of Tayoltita 
 in the District of San Dimas should have the support of the 
 Prefect, even granting that he had great power, in order to 
 prevent the Superior Court of Durango from ammending the out- 
 rages of that Judge, and from inflicting on him the condign pun- 
 ishment. 
 
 To take for granted that the influence of the Prefect of San 
 Dimas, and even that of the Governor of Durango, would have 
 prevented the superior Court of that State from administering 
 
66 
 justice, is certainly worse than to admit that a Judge appointed 
 by a Governor should not have sufficient independence to de- 
 cide against said Governor a case submitted to his decision. 
 
 And still, when in the case of Kennedy and King, no. 340 it 
 was alleged that the reason Avhy the right to a property seized 
 by general Garza, then Governor of Tamaulipas, was not 
 enforced, was because the Judge who had to decide the case, 
 had been appointed by Garza, and did not inspire any confidence 
 to the allegators, the Umpire said: 
 
 «The reason given by Mr. Chase for not acquiescing in the 
 proposal of General Garza, cannot be mantained by one Government 
 against another. » 
 
 In one of the last decisions of the Umpire — that given in the 
 case of Alfred Howell vs. Mexico, no, 970 — we read: «The vague 
 assertions of the witnesses that the General's — Lozada — in- 
 fluence was supreme in the District of Tepic cannot possibly be 
 taken as proof that he dictated the action of the judges and tribunals 
 of the land.y 
 
 How can it then be said, that because the Prefect of San Di- 
 mas showed some ill-will to the manager of the enterprise, there 
 was no independent tribunal in the State of Durango who could 
 do justice to him, or that in the whole Republic of Mexico 
 there was no power, capable of protecting him in his individual 
 guarantees? 
 
 The special protection that the Mexican Government is bound 
 to dispense to the Americans residents or transients in Mexico, con- 
 sist in giving them free scope to employ the same legal remedies 
 that the Mexican citizens may employ in defending their rights, 
 —Article 14 th of the treaty of 1831. 
 
 If the same tribunals that are open to the Mexicans are 
 likewise open to the Americans in Mexico, how can it be main- 
 
6? 
 tained that the want of confidence in the result of their efforts 
 excuses them from applying to said Courts? 
 
 What other guarantee^ could Mexico grant them than the 
 same that are granted to the natives? 
 
 Do claimants pretend that for the Americans special Courts 
 should be established, composed of such persons as would 
 inspire them with full confidence, and who should be exempt 
 from the possibility of submitting themselves to the influence 
 of the local authorities? 
 
 The undersigned has failed to find among the allegations of 
 the company any statement to the effect that when they 
 abandoned the mines, there were no Superior Court of Justice, 
 and no District Judge in Durango. These authorities certainly 
 existed at the time, as constitutional order had been reestablished 
 all over the country from about tho end of 1867. 
 
 Senor Ortiz de Zarate was not then the Governor of the 
 State, because he had only been provisionally in charge of the 
 Government, and the Constitutional Governor was elected in 
 October or November, 1867. 
 
 Therefore, if we leave aside the want of confidence that all the 
 public functionaries of Mexico may inspire generally to the 
 citizens of the U. S., there is no reason whatever to justify the 
 course followed by the agent of the company in not applying to 
 the Courts of justice in quest of protection, before he should have 
 abandoned the business under his care. 
 
 To consider, then, as puerile Ihe lequirement that the parties 
 in this case should have exhausted all the judicial remedies 
 before initiating any diplomatic claim, is tantamount to consi' 
 der as unfounded the pretension of Mexico that the Amer- 
 icans should submit to the Courts of the country, good or bad as 
 they may be: to belittle a solemn compact entered into between 
 Mexico and the United States, and to create a special jurisprud- 
 
68 
 ence only for this cage, deviating even from that applied to 
 other American claims against Mexico. 
 
 We can cite among others that of Alfred Green, no. 776, 
 who, like Exall, complained of false imprisonment in San Dimas, 
 and hostility from the local authorities. It was said in the 
 decision: cdf the judge illegally imprisoned the claimant, it was 
 certainly in his power to appeal to a higher Court, and to sue 
 Judge Perez for false imprisonment. It is shown that he was at 
 Durango shortly after his imprisonment and that he had a lawyer 
 there. Nothing could have been more easy for him than to seek 
 his remedy through the Courts. But it does not appear that he 
 took any steps in that direction. » 
 
 Having already shown that the agent of the company could 
 and should have employed judicial remedies, both before the 
 Superior Court of Durango and the federal judiciary, before 
 abandonning the interests placed under his charge, we can still 
 indicate another remedy, very easy indeed, that he might have 
 employed after having exhausted the others, viz; ask for protec- 
 tion to the Government of Mexico, through the representative 
 of the U. S. there. 
 
 We have remarked that any man placed in Exall's circums- 
 ces, however negligent in the fulfilment of his duties he might 
 be, would never have abandoned those interests without form- 
 ing an inventory, and that at arriving at the nearest place where 
 his life was not in danger — admitting that it actually was at 
 the mines — his first act should have been to make a detailed 
 statement of the ocurrence, either in the form of a protest 
 before the U. S. Consul, or in the shape of any other document, 
 founding his intention to abandon the business, and throwing 
 the responsibility on the Mexican Government.* 
 
 * In the decision of oase 994, «W. L. Laird vs. Mexioon we read: «Nor is it to be be 
 ievedthat the claimant on hie arrival to Matamoros should not have laid his complaint 
 
69 
 
 Before carrying through such an intention he should have 
 done two things, viz: 1 st He should have consulted with the 
 managers of the company, and 2 d He should have made a state- 
 ment of the facts to the Representative of his Government, 
 in order that he might have applied for the protection needed by 
 the company, or in case of being unable to obtain it, that said 
 Representative might have authorized the abandonment of the 
 mines, giving due notice in either case, and stating his reasons 
 to said Government. 
 
 Is there any exaggeration in pretending that this course should 
 have been followed? 
 
 Is there any thing impracticable or very hard to accomplish 
 in it? Nothing that we can think of. 
 
 "What we do find exaggerated, not to say preposterous, is the 
 pretension that we should believe that the manager of such a 
 large property should have abandoned it without being author- 
 ized to do so by its owners, and that a foreigner— and especial- 
 ly an American — entitled to the protection of his Government, 
 should not apply for it before abandonning an enterprise in 
 which there were millions in prospect, and in which, hundreds 
 of thousands of dollars had been spent. 
 
 In all the papers of the file the idea is repeated that the Pre- 
 sident of Mexico was very favorably disposed towards foreign- 
 ers. If the subaltern authorities did not second that sentiment, 
 what could have been more natural than to complain to the Pre- 
 sident of Mexico? 
 
 before the U. S. Consul at that port. Why, then, should we believe that Exall should 
 not hare laid his complaint before the U. S; Consul at Mazatlan? 
 
70 
 
 K. 
 
 OBLIGATION IMPOSED ON THE MEXICAN GOVERNMENT ON ACCOUNT 
 OF ITS LIBERALITY WITH FOREIGNERS. 
 
 The Mexican Government must decline the honor conferred 
 on it as to its liberality towards foreigners, because its motive 
 is incorrect. 
 
 As we have already remarked, it has been so repeatedly said 
 in this claim that the Government issued proclamations from 
 1856 to 1864, inviting foreigners to invest their capitals in Mexi- 
 co, in any kind of industrial pursuits, that a belief has been formed 
 that such proclamations really did exist, when they only do in the 
 minds of the forgers of this claim. 
 
 The undersigned, therefore, prays the Umpire to rectify this 
 error in which he has been induced by claimants, and not to 
 take fictitious offers as a ground for his final decision. 
 
 The Government of Mexico has never made any offers to for- 
 eigners residing abroad, and its treaty engagements are reduced 
 to give to foreigners residing within the national territory, and their 
 properties the same protection as to the native citizens and their 
 properties, but- without granting any special privilege to for- 
 eigners. 
 
 It is only to foreigners who should establish in Mexico agricul- 
 tural colonies, that certain advantages have some times been 
 offered. See law of March 13 th 1861. 
 
 The principles of international law and the treaties between 
 Mexico and the United States, certainly do not bind the Govern- 
 ment of the former to secure to the citizens of the latter residing 
 
within its territory, that the subordinate authorities will never 
 annoy them, but simply that they will enjoy the same resources 
 as the native citisens against all arbitrary acts to their persons 
 and properties. 
 
 How can those principles and treaties bind the Mexican 
 Government to guarantee to the American citizens the impec- 
 cability, of all and every one of the persons constituted in public 
 authority and that they will understand their duties always and 
 under any circumstances without making any mistake? 
 
 We have already cited two of the Umpire's decisions that 
 answer this question, and among several others in that direc- 
 tion, we will quote the case no. 135, William J. Blumhardt vs. 
 Mexico.)) 
 
 The decision reads: 
 
 «The Umpire is of opinion that the Mexican Government can- 
 not be held responsible for the losses occasioned by the illegal 
 acts of an inferior judicial authority, when the complainant has 
 taken no steps by judicial means to have punishment inflicted 
 upon the offender and to obtain damages from him. The Um- 
 pire does not believe that the Government of the United States, 
 or of any nation in the world, would admit such a responsibility 
 under the circunstances which appear from the evidence produced 
 on the part even of the claimant, showing that Judge Al- 
 varez was the person to blame and that it was against him that 
 proceedings should have been taken. » 
 
 So it is admitted that no Government can be held responsible 
 for the errors or illegal acts of its inferior judicial authorities, 
 until all the resources created by law have been exhausted in 
 vain for the punishment of the culpable and the indemnification 
 of the damages; and why is this? Because no Government can 
 be made responsible that all and every one of the persons invest' 
 ed with public authority will always act with rectitude. 
 
72 
 
 If Governments could find persons to place in office exempt 
 from all passions and human weaknesses, and if instead of sel- 
 lecting such persons, they should appoint men, who, for the 
 very reason of being men, are always subject to commit errors, 
 then only could they be held responsible for the faults commit- 
 ted by their subordinate officers. 
 
 And if we admit that neither international law nor existing 
 treaties can hold Mexico responsible for the acts of the inferior 
 judicial authorities, when the judicial resources have not been 
 exhausted, what reason of difference can there be in regard to 
 the inferior political officers, when equal resources can be em- 
 ployed against their arbitrary acts and errors? 
 
 Is it, by chance, more binding on the Mexican Government 
 to employ in its executive administration beings superior to 
 human frailties, than to employ beings of this kind in its judi- 
 ciary? 
 
 It should be enough, therefore, that no such special engage- 
 ment has ever been made, to revoke the decision founded on it. 
 
 On the other hand, who can say that it has been satisfactor- 
 ily shown that the company lost all the capital invested in the 
 mines, solely on account of the annoyances caused to their agents 
 by the local autorities of San Dimas and Tayoltita? 
 
 Let us overlook the very suspicious character of the proofs 
 of such annoyances, and see what did they consist io, and what 
 could have been their result. 
 
 In order that the ill-will of the local authorities to the com- 
 pany or its agents might constitute a motive for inculpation, it 
 would have been necesary to determine the facts showing its 
 existence. 
 
 It was alleged that these facts were: 
 
 l Bt Exall's imprisonment ordered by Judge Nicanor Perez, for 
 alleged contempt to said Judge. 
 
73 
 
 2n d Intimidation that if the laborers were not paid one third of 
 their wages in money, or some other arrangement made with 
 them, the company should vacate the mines and allow the labor- 
 ers to work them. 
 
 3 td Suggestions to the laborers not to work for the company, 
 and intimidation to those who were disposed to work. 
 
 4 th Threats to Exall. 
 
 As to the first fact, if we do not pay exclusive attention to 
 Exall's word, but we take also into account the defensive evid- 
 ence, it will be found that the alleged imprisonment had a cause, 
 and lasted only a short time, — -two or there days. 
 
 This fact, therefore, cannot be judged in a different manner in 
 this case from what a similar fact was disposed of in case no. 
 776 of Alfred Green, in the decision of which, we read: 
 
 «With reference to the imprisonment at San Dimas of which 
 the claimant complains, the first inference must always be that 
 the sentence of a judge or Court must be a just one. The strong- 
 est proof must be produced to justify a contrary belief, In this in- 
 stance the claimant represents that he was imprisoned because 
 he refused to pay $34 on the ground that the exaction was il> 
 legal. Witnesses testify that the act of the judge Camilo Perez 
 was illegal, but they do not give the grounds of this opinion- No 
 proceedings of the Court are produced and the exact reason of 
 the imprisonment is not shown » 
 
 «If the judge illegally imprisoned the claimant, it was certain- 
 ly in his power to appeal to a higher Court, and to sue judge 
 
 10 
 
74 
 Perez for false imprisonment. But it does not appear that he 
 took any steps in that direction.)) 
 
 The claim was dismissed. For the same reason the fact men- 
 tioned in the first place as a ground for the present claim, must 
 be disregarded. Exall's imprisonment, lasting two or three days 
 and originating out of a purely personal cause, could not have 
 produced the ruin of the business. 
 
 As to the second fact: admitting that the agent of the com- 
 pany really was intimated into vacating the mines, this occurred 
 in June or July 1867, and their alleged abandonment did not 
 take place until March 1868. It was not, therefore, the im- 
 mediate result of the intimation. 
 
 After this, the Prefect Mora, the one who made the intim- 
 ation, was removed from office, and, if we are to believe his word, 
 he visited afterwards the mines with the company's lawyer, and 
 found them in a flourishing condition. 
 
 Guadalupe Soto, the other individual who, in his capacity of 
 an authority, transmitted said order to the manager of the «La 
 Abra Mill,» was on such good terms afterwards with Exall, that 
 in February 1868, they entered into an agreement, by which 
 Soto was allowed to occupy the hacienda of Guadalupe belonging 
 to the company for six months, without paying any rent. 
 
 Moreo verj at the beginning of 1868 Exall — as he says — reduced 
 some twenty tons of ore, and got from this operation the 
 handsome sum of $17,000, and this proves that the intimations 
 of Mora and Soto did not prevent him from continuing his works, 
 nor were they the cause of the abandonment of the mines; and 
 we are left to believe either that Exall made some new arrange- 
 ments with the laborers, or else that Mora's succesor in office 
 did not carry through the intimation made by him. 
 
75 
 
 As to the suggestions made by the local authorities to the 
 laborers not to work for the company, the proof is reduced exclu- 
 sively to the assertions of Exall and Chavarria, who was not 
 an eye-witness, and could only speak from the information he 
 received from Exall. 
 
 In contradiction with this we have Exall's own statement 
 that at the beginning of 1868, he benefitted some ore, which he 
 certainly could not have done without the help of the workmen. 
 
 Exall is likewise the only witness who says there were threats 
 of death if the business was not abandoned. 
 
 In this particular, therefore, this case is identical to the dismis- 
 sed case of the «Siempreviva Mining Co» no. 98, in the decision 
 of which we read: 
 
 «The claimants further charge that Mr. Leya was forced by 
 threats to fly from the mines of which he was in charge. The 
 fears inspired by threats which induced Mr. Leya to abandon 
 his post, are not in the Umpire's opinion sufficient ground for 
 making the Mexican Government responsible for losses arising 
 from his flight, if it really caused any such losses. But the 
 proof that any such threats were made by Mexican officers or 
 authorities is of the weakest kind. It is only Leya himself who 
 speaks of threats daily uttered against him individually by the 
 officers and soldiers cf the forces of the Republic, without even 
 testifying that they were made to him directly and pessonally 
 Other witnesses make no mention whatever of these threats. One 
 witness, Adolfo Laguel, speaks of them as being made generally 
 against the company as well as its agents on account of their 
 being foreigners.)) 
 
76 
 
 II. 
 
 AMOUNT OP THE AWARD. 
 
 Considering as well founded the responsibility of the Mexi- 
 can Government on account of the alleged hostile acts of the 
 local authorities of San Dimas and Tayotlita against the com- 
 pany, and likewise, that these acts were the exclusive cause of 
 the abandonment of the mines, and overlooking entirely the ab- 
 solute want of all formality in which it was made, the Umpire 
 proceeds to determine the amount of the compensation. 
 
 The first basis fixed with this view, is that the company is 
 entitled to be reimbursed in the amount of their expenditures 
 and of the value of the ores extracted from the mines, with in- 
 terest on both sums. 
 
 In order to establish such a basis it is necessary to suppose 
 that the speculation of itself could never have been subject to any 
 loss, and that without the annoyances caused, as is believed, by 
 the local authorities, it would, at least, have saved the whole 
 amount of the expenses, obtaining moreover a net profit of six 
 per cent per annmum, besides the products of the ores extracted. 
 
77 
 
 BIS- 
 
 PROSPECTIVE GAINS. — VALUE OF THE MINES, 
 
 «Mining speculations)) — saya the decision — «are proverbially 
 the most uncertain of all undertakings. Mines of the very best 
 reputation and character suddenly come to an end, either from 
 the exhaustion of the veins, or from flooding, or from some of 
 the innumerable difficulties which cross the miner's path.» 
 
 This being an unquestionable truth, what positive data have 
 we to set down that the mines of this company would have pro- 
 duced any gains whatever, even insignificant, up to the day of 
 their abandonment, and that, had they not been abandoned, they 
 should have continued their products? 
 
 The decision consigns the very reverse, declaring that it had 
 not been shown that the company received any dividends be- 
 fore the time of the abandonment of the mines, and establishing 
 the basis that it could not have count on sure gains in the fu- 
 ture. 
 
 Let us, then, suppose that on the last day of 1867, this com- 
 pany should have decided to strike a balance of its business. 
 
 Let us also suppose that on that day its expenditure amount- 
 ed to $341,791 06, a sum fixed by the President of the com- 
 pany on September 29 th 1870, all expenses told, including sa- 
 laries of the employees, office rent, fees of attorneys and judi- 
 cial costs. 
 
 Let us suppose too, that the stock in ores is to be estimated, 
 as it has been in $117,000 [including the product of the 20 tons 
 that Exall says, rendered 117,000 at the beginning of 1868]. 
 
78 
 The account or liquidation should have been: 
 
 Expenditures $ 341,791 06 
 
 Products 117,000 00 
 
 Difference. . . $ 224,791 06 
 
 It was, therefore, necessary that the mines and the improve- 
 ments made in them should have been worth $ 224,791 06, in 
 order that there should be no loss to the company. 
 
 Bat to suppose that they were actually worth that much, 
 would be tantamount to take for granted that the mines would 
 be productive in the future, and, for good reason, this was not 
 done in the decision. 
 
 If on the 20 th of March 1868, the mines would have become 
 exhausted for any of the innumerable causes given in the deci- 
 sion what would they have been woth afterwards? Nothing at 
 all, and even the machinery would have been worth much less 
 than it costed. 
 
 Now, if the value of the mines could not form an item in the 
 liquidation of the business at the time of their abandonment, 
 there were undoubtedly losses in lieu of gains. 
 
 It is on this ground that interest is granted as safer thanpros- 
 pective gains. 
 
79 
 
 M 
 
 WHY INTEREST IS GRANTED. 
 
 Whilst acknowledging that a mining speculation is one of the 
 most uncertain of all undertakings, producing at times great pro- 
 fits, at others none whatever, and even causing the ruin of the 
 speculators; it is taken as a standpoint, that claimants were not 
 only free from losses, but that they would have obtained, at least, 
 regular profits. 
 
 1ST 
 
 And yet, as if to secure moderate utility in the shape of in- 
 terest seemed to be too little, it was thought advisable to give a 
 reason for the denial of prospective gains, by saying that to 
 grant them, would have been to grant twice the same thing. 
 
 This seems to corroborate the idea that interest is granted un- 
 der the impression that the capital would necessarily have pro- 
 duced profits or gain, as if this company was placed beyond all 
 the difficulties that ordinarily cross the miner's path, and fre- 
 quently cause their ruin. 
 
80 
 
 N 
 
 BIS; 
 
 THAT THE GOVERNMENT OF MEXICO IS NOT CONDEMNED TO PAT 
 THE VALUE OF THE MINES. 
 
 The company paid a certain sum as purchase money for the 
 mines it was going to work, it sent out some machinery, and 
 undertook certain works, which the witnesses for the defense 
 esteemed disproportionate to the circunstances of the mines. 
 
 The Government of Mexico is charged with the amount of 
 the purchase money, the cost of the machinery and of the' 
 works, as it is compelled to pay all that is said to have been ex- 
 pended; and yet, it is added that it has not been condemned to- 
 pay for the value of the mines, because it cannot be estimated, 
 even aproximately; alluding to the capital represented by the 
 enterprise on account of its possible products. 
 
 Even admitting that it was just and equitable that the Mexi- 
 can Treasury should reimburse this company of all its positive 
 losses, it is a well known principle that prospective gains are 
 never included in this class of compensations, even when specu 
 lations of known and undoubtful products were involved. 
 
 But in that case what certainly ought to have been shown are 
 the actual and positive losses, the true amount of the capital 
 invested, and that it was really spent in the object to which it 
 is supposed to be destined. 
 
 Because if the expenses were of no use nor the speculation, or 
 Were made without any intelligence and discretion, how could 
 it be just to condemn defendant to reimburse them? 
 
81 
 
 o. 
 
 Interest on the products op the mines. 
 
 The Mexican Commissioner, after showing with numerous 
 reasons the want of foundation in this claim, concluded by saying 
 that claimants asked much, to obtain something; but that abso- 
 lutely nothing ought to be given to them. 
 
 But the American Commissioner without going to the trouble 
 of stating the reasons for his opinion, proposed to give claimants 
 only the amount of the expenses they had disbursed in the spe- 
 culation — and which he did not take the pain either to deter- 
 mine, — with interest, at six per cent, in lieu of prospective 
 gains. 
 
 Consequently, the disagreement of opinions between the two 
 Commissioners, consisted in whether claimaints should receive 
 nothing, or be reimbursed of all the expenses they incurred. 
 
 Both Commissioners agreed that nothing else should be given 
 to claimants than said expenses and interest thereon. 
 
 The point, therefore, submitted to the Umpire's decision was 
 simply whether claimants were entitled to be reimbursed of the 
 expenses they had incurred in their speculation in Mexioo, 
 with interest thereon, and no more. 
 
 There is not a single word in the American Commissioner's 
 
 opinion in regard to the actual products of the mines, but on 
 
 the contrary, it very clearly determined that only the capital 
 
 invested should be reimbursed, granting interest for all kind of 
 
 profits. 
 
 It is, therefore, unquestionable that the assignment of a cer- 
 
 11 
 
82 
 tain amount for the products of the mines is the exclusive work 
 of the Umpire, and it constitutes a point, foreign to the question 
 submitted to his decision; we have, therefore, three different 
 opinions of the three members of the Commission, viz: the opi- 
 nion of the Mexican Commissioner declaring that nothing should 
 be given to claimants; that of the American Commissioner in the 
 direction that they should have the amonnt they spent in the 
 speculation, with interest; and, finally, the Umpire's opinion, 
 granting the amount of those expenses with interest, 'plus the 
 products of the speculation, also with interest. 
 
 As this Commission is formed by a board, it is only the con- 
 curring vote or opinion of a majority of its members that can 
 prevail in it; in other words, the Umpire or third Commissioner, 
 as we may say, can only decide the points on which the other 
 two have disagreed. 
 
 This has been the view and practice of all international Com- 
 missions, and it has been the view and practice that have shaped 
 the proceedings of this Commission; for instance: 
 
 In the case of Bernard Turpin against Mexico no. 90, there 
 were two points to be decided; the Commissioners agreed on 
 one of them, and the Umpire said. 
 
 «With regard to the second claim it appears that the Commis- 
 sioners have agreed; the Umpire is not, therefore, called upon to 
 my anything about it.y> 
 
 In the decision of the case of Bartolo Hicks, no. 487, wo 
 read: 
 
 «Thecase involves a variety of claims most of which the Com- 
 missioners have agreed to dismiss. There remain but two upon 
 which they differ, and with regard to these the Umpire is of ike 
 same opinion that the Commissioner of the United States. » 
 
 It is, therefore, seen that the Umpire believed that he was 
 only called upon to decide such points in which the Commis- 
 
83 
 sioners were unable to agree, and on these, he was decided by 
 the opinion of one of the Commissioners. 
 
 Sometimes he did not enterely adopt one of the disagreeing 
 opinionsj'but even then his opinion never went beyond that 
 , one from which he deviated, but was restricted to its limits, 
 whence it always resulted that there were two agreeing votes up 
 to a certain point, and the decision of this Court by the vote of 
 a majority of its members, covered that point. 
 
 So in the case of Augustes Belknap no. 185, the Mexican 
 Commissioner was of opinion that the whole claim ought to be 
 dismissed; the American Commissioner, that claimant ought to 
 receive an award of $25,000 or more; and the Umpire granted 
 $20,000, there being in consequence two opinions in accord cover- 
 ing this last sum. 
 
 The rule of not deciding any point, foreign to those contained 
 in the dissenting opinions, nor to exceed their limits, has been 
 universally followed by the Umpire, so much as that this case is 
 the only one that can be cited in which he has deviated from it. 
 
 We cannot doubt the fact that the Umpire has granted to 
 these claimants in his decision more than the Commissioner of the 
 United States if we only compare the words of the two decisions, 
 nor can we question the practice to the contrary so universally 
 followed, and the grounds on which this practice is based. 
 
84 
 
 PROOF AS TO THE CAPITAL INVESTED IN THE SPECULATION. 
 
 The simple affidavit of the president of the company, Mr. Geor- 
 ge C. Collins has been considered as a clear'and straightforward 
 proof of the expenses disbursed by this company in its mining 
 operations. 
 
 And yet, who are the parties interested in this claim? 
 
 Evidently those who advanced the funds to meet the expen- 
 ses of the enterprise, inasmuch as whatever might have been the 
 true cause of their loss, their only hope of beiDg reimbursed was 
 through the award they expected to get from the Umpire; in other 
 words: the bond holders and creditors, apart from those who con- 
 cocted and have promoted the claim, by all manner of means, 
 fair or foul, and who whould carry a large portion-if not the lar- 
 gest-of the award that might be granted. 
 
 Of the latter we are acquainted with those who appear on the 
 files, viz: Summer Ely, Alonzo Adams, Robert Rose, Frederick 
 Stanton, W. W. Boyce and Thomas H. Nelson, formerly Minis- 
 ter of the United States to Mexico. Other person^, very likely, 
 whose names do not appear on the files, will also have a share 
 in the award. 
 
 But those interested in it in an ostensible manner are undoubt- 
 edly, the bond holders and creditors, since without the award 
 they could have no expectation of ever being reimbursed of what 
 they lost in «the most uncertain of all speculations.)) 
 No complete list has ever been presented to this Commission 
 
86 
 of the bond holders, expressing their separate shares, as it ought 
 to have been done, to dispel — if for no other reason— the well 
 founded doubt that has puzzled the Commission in other cases, 
 as to whether the recipients of the awards were citizens of the 
 United States, or not. 
 
 With this view, it ought to have been shown, at least, that 
 no others but citizens of the United States could acquire shares 
 in the speculation. 
 
 The names of twenty eight persons have been mentioned as 
 bond-holders, but, if we are to judge by their names, the only thing 
 we can say positively, is that not one of them is of Spanish origin, 
 it appearing that almost all are of English extraction. If those 
 who they belong to have this nationality, or any other of En- 
 glish descent, is a matter utterly impossible to be guessed at. 
 
 Of these twenty eight names only three are mentioned with 
 the designation of their shares, viz: 
 
 George C. Collins 50 
 
 Thomas Bartholow 160 
 
 Dabney C. Garth 250 
 
 460 
 
 There are only three persons, therefore, who are entitled to 
 claim before this Commission, and if they, at least, would have 
 fulfilled the order of the Commission of January 21 9t , 1870, and 
 presented the titles to their respective shares, the most that 
 could have been granted to them would have been the value of 
 those shares, say $46,000, with interest-if it so pleasod-from 
 the day on which they might have received their dividens, — ad- 
 mitting the possibility of designating that day. — 
 
 Instead of doing this it seems that the persons entitled to re- 
 ceive an award have been entirely overlooked, and there has 
 
86 
 been an intention to designate it by figures taken from the affid- 
 avit of one of the few persons notoriously interested in obtaining the 
 award 
 
 Collins, owner of fifty shares worth $ 6,000, and the com- 
 pany's creditor to the amount of $21,145.17, which he says to 
 have been lent to it, and for his salaries as president — time and 
 amount not specified — is the witness on whose affidavit the Umpire 
 relies. 
 
 Is there any Court in the world where any weight would 
 have been attached to such a proof as this? 
 
 The very least that a Court would have required from a 
 company to prove its expenses, would have been to present its 
 books, kept in due form. 
 
 "Whatever degree of confidence the president of such a 
 company might have inspired personally to the judges forming 
 the Court, and supposing he had no personal interest in the 
 claim, as the decision must appear as given on grounds of 
 justice even for the adverse party, that personal confidence could 
 never have sufficed, and he ought to have been compelled to 
 present documents, sufficient in themselves to convince any 
 body that might see them. 
 
 In order to judge whether in giving a decision the guaranties 
 of the defendant have been respected, we must put ourselves in 
 the defendant's position. Who could ever be satisfied of being 
 condemned, on the sole foundation of the testimony of his 
 plaintiff, or of the president of a company, pretending to be his 
 creditor? 
 
 Are we all obliged to believe, perchance, in the infallibility of 
 the presidents of speculating companies? 
 
 In the memorial of this claim it is said that the company had 
 
87 
 invested in its undertaking the amount of f 303,000, when the 
 stock capital with which it was organized only amounted to 
 $ 300,000. 
 
 This expenditure, and nothing else, is what ought to have been 
 proved by documentary evidence. 
 
 But instead of documents, the only proof we receive is the 
 simple assertion of the president of the company, according to 
 which, the subscriptions and sale of shares produced the sum 
 of$ 235,000. 
 
 Now, if this be true, either the shares of the company were 
 not all sold, or they were sold for less than their face value, 
 and either extremity, contradicts the assertion made by Summer 
 Ely, the "lawyer of this company, who, in his affidavit, said that 
 the expectation of success was so great, that all the shares 
 were taken by the founders and their friends, and three of these 
 only sold theirs, because they were in needy circunstances. 
 Had it been so, all the shares would have produced to the 
 company their face value. 
 
 Still we see by the president's testimony that they produced 
 $ 65,000, less than their whole value. 
 
 This deficit was, according to said testimony, almostall covered 
 by loans to the company, there remaining only a difference of 
 $ 708,94. 
 
 Mr. Collins also says that up to date of his testimony — Sep- 
 tember 28, 1870 — the company was owing for office rent, salaries 
 of its employees, fees of counsel and attorneys, judicial costs 
 &c, the sum of $ 42,500, and as it was said in the memorial 
 that all the expenses disbursed in the purchase of the mines 
 and works, amounted to $ 303,000, we necessarily infer that 
 the difference of $ 38,791 06 between this amount, and the 
 total of ingress and debts of the company, correspond to expenses 
 made after the abandonment of the mines 
 
88 
 And what are the «other expenses,)) salaries of the employees, 
 
 » 
 
 Counsel and attorney 's fees and judicial costs, that, it is pretended, 
 Mexico must pay? 
 
 How much is due to each creditor of the company and 
 what for? 
 
 Has not Mexico a right to know it? 
 
 Has she not a right to object to each creditor's account? 
 
 How much is due to Ely and to Adams for their good services 
 to the company, and their ability in changing a bad speculation 
 into a productive one, at the expense of the meagre Mexican 
 Treasury? 
 
 What can be more severe than to say to a defendant: «pay 
 whatever plaintiff pretends to have spent, it matters little what 
 for: compensate even those who have forged and concocted the 
 claim against you? .... 
 
 The Umpire in cases submitted to his decision, had never 
 granted to any claimant before not even the sum of one hundred 
 dollars that the American Commissioner was wont to allow 
 for cost of printing, probably because the Convention, far from 
 authorizing it, makes claimants contribute to defray the expenses 
 of this Commission, deducting up to five per cent of the awards 
 they might obtain. 
 
 But in the present case, by admitting the charge of $42,500, 
 in which are included lawyer's and attorney's fees, and the 
 judicial expenses, without any specification whatever, the ex- 
 penses incurred in the preparation of the claim are surely com- 
 pensated. 
 
 Mexico, at least, has every right to believe it so, because she 
 does not know to what dates, attorneys witnesses, or judicial 
 proceedings, do these expenses charged to her account, cor- 
 respond. 
 
 Perhaps counsellor Chavarrin's fees for the verbal petition he 
 
89 
 made to Governor Ortiz de Zarate, or, more likely, for the testi- 
 mony he gave in the matter in behalf of this claim, are included. 
 
 Perhaps Consul Sisson's fees for his certificate in regard to 
 the destruction of a testimony, — which nevertheless was pres- 
 ented — in favor of the claim, by an unknown Mexican, and 
 for the depositions he furnished Adams with, are also charged. 
 
 May be the travelling expenses of said Adams to go to Du- 
 rango and Sinaloa to make proofs in behalf of this claim, and 
 the amount he paid to his witnesses, «not for the purpose of 
 suborning them, but, simply as a compensation for the loss of 
 their time,» as it is pretended, are likewise included. 
 
 May be Galan and Dana's fees as translators only of the tes- 
 timonies in favor of the company are charged. 
 
 Perhaps, finally, that other expenses are charged of which 
 no traces can be found on the files. 
 
 Because not all those persons who lend their names to sust- 
 ain a claim, still more uncertain than the speculation which gave 
 rise to it, consent to do it only for the contingent interest of a 
 percentage they may get. 
 
 We read in Bartholow's deposition: 
 
 ((Assessments have been made by the company from time to 
 time since the celebration of the treaty of July 4 th 1868 pro rata 
 against the individual stockholders, for money with which to 
 prosecute this claim for damages against the Mexican Govern- 
 ment.)) 
 
 And in the memorial we find this very significative idea: 
 
 «That in addition to the expenditures in said mines, as afore- 
 said, said company have expended % 30,000, in conducting their 
 business otherwise than in expenditures of said mines. 
 
 Unfortunately, corruption has gained so much ground now a 
 days, that even persons in good social standing do not seem to 
 be afraid of losing their character by associating their names to a 
 
 12 
 
speculation of this stamp, in which the interests, not of private 
 individuals, but of a whole nation are attacked. 
 
 It seems that the belief is generally accepted that to get from 
 1he public treasury something to which we have no right, is not 
 indecorous nor contrary to the principles of morality, still less 
 when the defrauded treasury is not that of our own country, 
 nor is there any investigations in the future to be dreaded, 
 unless in times like the present when everything is being in 
 vestigated. 
 
 Even admitting the justice that Mexico 6hould compensate 
 claimants for the expenses incurred in their mining speculation, 
 it would not be just to make her pay the expenditures incur- 
 red in conducting otherwise the businnes of the company, 
 
 Q 
 
 FOROED LOANS NOT COMPENSATED TWICE TO THE COMPANY. 
 
 Accepting the basis that this company had spent in its 
 mining speculation and owed up to May 1870 the sum of 
 $ 341,791.06, simple because its President has said so, it is pre- 
 
91 
 sumed that in this amount all loans and taxes paid by the 
 company in Mexico are included. 
 
 Recourse must be had to obtain this result to a conjecture, 
 as Mr. Collins did not see fit to specify the expenses and pay- 
 ments made by the company. 
 
 When the machinery and all the necessary provissions were 
 sent out, Mazatlan, the landing place, was occupied by the 
 French. Some duties must necesarily have been paid' to them, 
 and now Mexico is condemned to reimburse amounts paid to its 
 foreign foe! 
 
 She is also condemned to reimburse to the company all the 
 amounts paid to the legitimate authorities by way of taxes, 
 and forced loans, for which no American claimant has yet obt- 
 ained any compensation. 
 
 There can certainly be no justice in condemning Mexico to 
 pay the same thing twice; first by compensating the company 
 to the fall amount of its expenditures in the enterprise, and 
 then to reimburse also the amount of taxes and loans, when it 
 is not even known. 
 
 But why is she condemned once to this reimbursement? 
 
 However prosperous we might supposse the epeculation to be, 
 the amount paid by the company to the enemm of Mexico and the 
 amount it lost by robberies, ought to be charged to losses. Why 
 should the Mexican Treasury be compelled to compensate them? 
 
92 
 
 JR 
 
 TAX ON A TRAIN OP WAGGONS IN TRANSIT. 
 
 Although when Mexico is condemned to reimburse all amounts 
 paid for loans and taxes, no discrimination is made between those 
 imposed by the legitimate and the illegitimate authorities, it was 
 thought advisable to make a special mention of an exaction of 
 which Wm. Clark speaks in the following manner: aOnce, when 
 Laguel was superintendent, I was in charge of a large quantity 
 of provisions of the company, that was to be carried to the 
 mines of Tayoltita; but one Colonel Donato Gruerra of the repu- 
 blican army of Mexico, in command at the time of that District, 
 exacted a contribution of $ 600 on the provisions, and I had to 
 pay it before they were permitted to continue their way.» 
 
 Admitting the fact to be true as stated, we have that a large 
 cargo from Mazatlan, aport occupied at the time by the ennemies of 
 Mexico, on its way to the mines, was taxed in the sum of $ 600, 
 by au officer of the army. 
 
 In the case of J. Jaroslowski no. 896, claimant asked for 
 compensation not of a simple tax he had paid, but for the 
 alleged confiscation by the republican troops of a load proceeding 
 from Matamoros in 1865, and we read in the decision: 
 
 «But even if it be true (hat the goods of the claimant were 
 seized by Mexicau troops, the Umpire consider that the Mexican 
 authorities had by the general laws of the war and the Mexican 
 law of August 16, 1863, the right to confiscate them.y> 
 
 In other cases too, and recently in the cases of «Schelenning 
 & Pentenreider» no. 864, the same declaration was repeated. 
 
 ((The claim» — it is said — «arises out of the seizure of mer- 
 
93 
 ohandize by troops belonging to the forces under the command 
 of General Cortina. The goods were dispatched by the claimants 
 in June 1865 from Matamoros to Piedras Negras. But Mala* 
 moros was at the time occupied by the imperialist forces, and all 
 intercourse with it was prohibited by the Mexican Government. 
 The forces of that Government were, therefore, justified in seizing 
 and confiscating articles coming from that part, unless their 
 owners or carriers were furnished with a special license, which 
 does not appear to have been the case in this instance.* 
 
 Neither in this case has the existence of a special permit been 
 proven; or even alleged, and it is only by overlooking all the 
 circumstances of the fact, that anything can be made of it to 
 exaggerate the vexations to which this company was said to be 
 a victim, since no attention whatever is paid to consider whether 
 its intercourse with the ennemy was legal or illegal, before 
 condemning the pretended exaction. 
 
 Were we to take into account the time at which this company 
 undertook in Mexico a speculation, «the most uncertain of all 
 speculations,)) instead of accumalating charges against Mexico, we 
 might turn them all against claimants for their notorious teme- 
 rity, and for the trade they held with the ennemy of that 
 country. 
 
 It almost seems that this company had vinculated its specul- 
 ation with the state of war, since as soon as it ceased, and pre- 
 cisely when the company might expect to receive some 
 protection, which it was not even entitled to before, for trading 
 with the ennemy, they desisted entirely of all efforts. 
 
 Is it just, is it equitable that the Mexican people, who suffer- 
 ed so many direct wrongs by that war, should now have to pay 
 even the imprudence of those foreign speculators who went to 
 establish «the most uncertain of speculations,)) in the very midst 
 of combatting forces? 
 
94 
 
 s 
 
 PRODUCT ((SHOWN)) OF THE ORE REDUCED BY THE COMPANY, 
 
 To the amount designated by the president of this company 
 as the sum total of its ingress, it has been seen fit to add the 
 product of the ores benefitted at the mines, of which he had not 
 said a word. 
 
 And still, however badly organized this company might have 
 been, its president should to have known what were the products 
 of the mines. 
 
 Why, then ? is it taken for shown that the ores did produce 
 $17,000? 
 
 There is no other data on record about this point than Exall's 
 simple word for it: see his afidavit of June 11 th , 1874- 
 
 Does Exall enjoy, like Collins, the privilege of being believed 
 under his simple word? 
 
 What guaranties of veracity do we find in the testimony of 
 this agent of the company, who was so negligent in the fulfil- 
 ment of his duty? 
 
 True it is that some of the witnesses for the defense speak of 
 the ores reduced by the company, but let us see in what terms: 
 
 Aquilino Calderon says: «Don Juan and Don Carlos Elde dis- 
 posed of the silver extracted by the company from the best ores 
 produced.* 
 
 Refugio Fonseca adds: «The silver extracted by the company 
 was taken to Durango and Mazatlan. Carlos Mudo— Exall says 
 that this was the name he was known by — paid with it a cre- 
 dit contracted in gambling.)) 
 
95 
 
 But Exall cornea afterwards, saying that he extracted $17,000 
 from twenty tans of ore, and that it is false that the silver ex- 
 tracted was carried to Durango, to pay with it a gambling debt; 
 and this is enough to accept as proven such a product, and to 
 consider the charge of its misapplication as destroyed. 
 
 And still, few things can be more improbable than that twenty 
 tons of ore should have produced % 17,000, and that immediately 
 after having obtained this fabulous result from the speculation, 
 it should have been abandoned /f^^by American specul- 
 ators. 
 
 T 
 
 PROOF AS TO THE ABANDONMENT OF A LARGE AMOUNT OF 
 VALUABLE ORES, 
 
 The proofs we find on file in this particular, are these: 
 
 Exall says: «At the time of the abandonment we had extracted 
 and carried to the mill from 650 to 750 tons of ore, having an 
 existence at hand of 250 tons more. These ores would have 
 produced to the company over one million of dollars. » 
 
 So this honest and discreet superintendent pretends that as 
 twenty tons of ore had produced $ 17,000, i. e. at the rate of 
 $ 850 per ton, one thousand tons could yield at the rate of a 
 thousand dollars a ton. 
 
 Alfred Green says: «When the company abandoned the mines, 
 I believe there were over a thousand tons of ore, that in my 
 estimation would have yielded at least half a million of dollars». 
 
96 
 Geo: C. Collins: «As to the amount of ore extracted from the 
 mines, I only know what I have heard from others.)) What a 
 fine president of a company! 
 
 James Granger, testifying in behalf of the company: «I be- 
 lieve that the amount of ores extracted, was a little over a 
 thousand tons, or about seven thousand loads.)) 
 
 John Cole: «I am posted in the fact that the company had 
 extracted and abandoned from a thousand to a thousand five 
 hundred, tons of ore, that would have produced from a hundred to 
 a thousand dollars of pure silver a' ton, and some even up to two 
 thousand dollars.)) 
 
 He therefore knew of more existence on hand than the 
 superintendent himself. 
 
 Francisco Gamboa: «The piles of ore that I saw, might 
 contain from six to eight thousand loads, and yield from three 
 to eight mareos for load, or more.» 
 
 This witness says he was damaged by the abandonment of 
 the enterprize, because he had made arrangements with Exall 
 for the transportation of the ore from the mines to the mill, at 
 so much a load. 
 
 Loaiza says that at the time of the abandonment, there 
 were from a thousand to a thousand five hundred tons of ore 
 extracted. 
 
 Chavarria believes, ((judging by what he heard from persons 
 well posted.» — Who were they?— «That the value of the ore was 
 about $2.000,000.» He avers not being an expert in the matter. 
 We are not surprised, since he has given so little sign of being 
 expert in his own profession! 
 
 Marcos Mora, the authority hostile to the company — if any was 
 so — says that the company had about ;six thousand tons 
 of ore! 
 
 Charles Dahlgren, the Admiral's son, saw the ore of the com- 
 
97 
 pany in 1870, and testifies, without giving any reason for it, 
 that not one half of the amount remained then, and there were 
 some signs that what was there, had been thrwon away as of no 
 use. Still the ore covered about a fourth of an acre of land. 
 
 He cannot fix the value of the ore he saw, but believes that 
 even what was thrown away might have yielded something . Still, no- 
 body availed himself of it. How rich must those people have 
 been when they did not take the ores, having them at their 
 disposal! 
 
 The Admiral's son estimates the value of the rejected ores, 
 of which nobody availed himself — in «no less than one hundred 
 thousand dollars.)) 
 
 Thomas Bartholow says that when he ceased to be superin- 
 tendent, there were only about two hundred tons of ore at the 
 mill. His estimate in regard to its probable yield, is based upon 
 the information he received from the person who sold the mines. 
 
 In behalf of the defense, we have the following testimonies: 
 
 Patricio Camacho: «The company, at a great expense, extract- 
 ed many loads of ore, that could not yield enough to cover -the ex- 
 penses. » 
 
 «The sixty loads that Guadalupe Soto took and benefitted, 
 with Granger's permmission, did not meet the expenses.)) 
 
 Bartolo Rodriguez, Ramon Aguirre, Aquilino Calderon, and 
 Refagio Fonseca, testify in the same direction. 
 
 James Granger, testifying in behalf of Mexico, says: The ores 
 are yet — 1872 — to be found at the mill, and they are worthless 
 The speculation could not produce a cent. 
 
 13 
 
Andres Serrano: «The mines have not produced any product- 
 ive ores. Those abandoned by the Americans, are pure tepetate. 
 
 Petronilo Santos, Leandro Martinez and Pioquinto Nufiez: 
 «The minerals extracted are nothing else but tepetate. » 
 
 N. A. Sloan: «At the time I was a clerk of the company, I 
 learnt from the superintendent that a little less than $6,000 of 
 silver had been extracted. I know there were some ores, but 
 not their amount. The ores exist at the mill, and may yield 
 about $5 por ton.y> 
 
 Ignacio Manjarrez: «The Company at a great cost, extracted 
 an immense amount of worthless ore. When the mines were 
 abandoned, Guadalupe Soto obtained permission to take and ben ■ 
 efit as much ore as he could, but he failed to get any thing out 
 of sixty tons he benefitted. Those mines might have been rich 
 previously; but they were not so in the hands of the company. 
 The company extracted over three thousand loads, which it di. 
 vided in three classes; but they were entirely worthless.)) 
 
 «Its first essays, yielded there or four ounces of silver per load. 
 
 <dt then benefitted sixty loads, that did not yield enough, even 
 to pay the laborers employed in picking the ores.r> 
 
 Martin Delgado: «I know, because it fs of public notoriety, 
 that the company piled up a large amount of minerals that con- 
 tains no silver.)) 
 
 Miguel Laveaga: «I know, and it is a notorious fact, that they 
 piled up a largo amount of tepetate, that contained no gold, nor 
 silver.)) 
 
 «A part of this stone was benefitted, and it did not cover the 
 tvages of the laborers employed in selecting it. Guadalupe Soto did 
 not obtain anything out of the amount he benefitted with Gran- 
 ger's permission.)) 
 
 Agapito Arnoldi: «It is possible that the company's mines 
 may produce from eighty to a hundred loads a month, not of 
 
99 
 good ores but of tepetate.y> It is a notorious fact that they wont pro- 
 duce anything eke.-a 
 
 Nepomuceno Maiojarrez: «The Company extracted about there 
 thousand load of stone. » 
 
 «In May 1866, Laguel came to take charge of the mines and 
 made a favorable report to the company; but as soon as he got 
 posted in the true state of matter, he ordered Bartolo Rodriguez 
 to separate the ores from the tepetate; and having obtained in 
 this manner sixty loads, they yielded very littlee silver.)) 
 
 So, claimant's witnesses and the witnesses in behalf of the 
 defense agree in this point, viz: that the company extracted a 
 large amount of ores, but they disagree in toto as to whether said 
 ores were or not of any value. 
 
 Why should we receive as reputable claimants witnesses and 
 their testimony as satisfactory, when we find so much exagger- 
 ation in the value they attribute to the ores? 
 
 Is it more likely that ores of such an extraordinary fineness 
 should have been abandoned than that an irnproductive specul- 
 ation should have been given up? 
 
 XT. 
 
 INSUFFICIENCY OF THE EVIDENCE AS TO THE AMOUNT 
 OF ORES ABANDONED. 
 
 Aa we have already remarked, it seems that it has been taken 
 for granted that twenty tons of ore produced $17,000 to Exall, 
 
100 
 simply because he says so, as there is certainly no other proof on 
 the subject; but perhaps his word is not taken as to the number 
 of tons of ore existing at the mill, and of those extracted from 
 the mines at the time of their abandomnet, considering that he fluc- 
 tuates betwen 650 and 750 tons, when designating the number 
 of those already transported to the mill; or perhaps because the 
 president of the company said that he knew nothing about it, 
 except what he saw in the testimonies prepared for the present 
 claim. 
 
 ^r 
 
 PROOF CONSIDERED AS VERY IMPORTANT, BUT FOR THE ABSCENCE OF 
 WHICH — NOT EXPLAINED — THE COMPANY IS EXCUSED. 
 
 Far from entertaining any doubts as to the business being 
 managed with all due regularity, a full conviction is expressed 
 that it was, on the ground, very likely, of data aliunde the re- 
 cord, as on the files, on the contrary, we find great signs of ir- 
 regularity. 
 
 It seems somewhat strange that a well regulated company 
 should not present the books where the entries were made of 
 the daily extraction of ores from the mines; but it does not seem 
 strange that the company should not present its books of money 
 ingress and egress; it seems strange that the reports that the 
 superintendent of the mines must have sent periodically to the 
 company about the number of tons of ore extracted should 
 
101 
 not have been presented; but the totala bscence of any scientific 
 report on the result of benefit of the ores, or of its product, or 
 the reports relating to the different phases of the business, its 
 decadence and causes, and the special reasons that "existed for 
 abandoning the mines, does not seem strange; and lastly, the ab- 
 solute want of record of proceedings of the board of bondholders, or 
 of the Managiny Board of the company, does not seem strange 
 either. 
 
 Instead of these documentary data, — the only ones that might 
 constitute a ground for a critical judgment on the true prospect of 
 the business and the real causes of its abandonment; — testimonies no- 
 toriously partial and procured ad hoc for, and given by persons 
 selected by claimants, are accepted as satisfactory evidence, and 
 it is only when certain data are needed not for the reimburse- 
 ment of sums actually expended, — because so far as these are 
 concerned, the simple affirmation of the president of the compa- 
 ny is considered enough — but to award a positive gain «in the 
 most uncertain of speculations)) that the books are missed. 
 
 And yet, when even the few required data, which, as it 
 is said, claimants could have produced are not to be found on file, 
 why should this wilful default be excused, when claimants 
 have not even taken, as it is added, the trouble of explainnig 
 its abscence? 
 
 ■w 
 
 It has been said that the superintendent of the mines esti 
 mated in about a thousand the number of tons of ore extracted 
 from the mines at the time of their abandonment, and he valued 
 
102 
 them, with notorious exaggeration, in the sum of one million of 
 dollars. 
 
 A larger number of tons but of less value are mentioned by- 
 other witnesses in behalf of claimants. 
 
 But, without denying to Exall and such witnesses their 
 knowledge in the matter, it is admitted, not that they told an 
 untruth to benefit the company, but that they might have made 
 a mistake in their estimates, because even in sight of a large 
 amount of ores the most intelligent persons may be deceived as 
 to its quantity and especially as to its average value. 
 
 With regard to the witnesses for the defense no merit whatever 
 is attached to their assertions on this point. 
 
 The assertion that the ores abandoned by Exall should be so 
 poor that its benefit should not pay, is rejected as an im 
 possibility. 
 
 X 
 
 VALUE OP THE ABANDONED OSES; MANNER IN WHICH 
 IT IS DETERMINED. 
 
 Notwithstanding the difficultty of determining the value of 
 the ore extracted from the Company's mines, their quantity and 
 quality not being known, it is declared in the decision, that it 
 ought to produce necessarily some profit, as if it was an impos- 
 sibility that anything else but valuable ores could be extracted 
 from mines that were once rich; and as if it was impossible that 
 
103 
 Bxall should have selected and benefitted for is own profit, the 
 best ores, as is stated by the witnesses for the defense. 
 
 And still, the very fact that Exall abandoned the mines as 
 soon as he benefitted the ores for the first time, employing a 
 new proceeding at a very high cost, — as he himself says — should 
 be considered as a proof of the improductiveness of the specul- 
 ation. 
 
 Were it true that at the beginning of 1868 twenty tons of ore 
 had really produced $17,000 to Exall, how can we believe that 
 on the 20 th of March of the same year, when the war in Mexico 
 was all over, the legitimate authorities had been reinstated, and when, 
 consequently, he might expect to obtain an efficacious protection by 
 applying for it, even to the supreme authority of the Republic, if it 
 ivas necessary, that he should have abandoned such a fabulously rich 
 enterprise? 
 
 When the amount of $ 100,000 is assigned as the value of the 
 ores extracted from the company's mines, the possibility is ad- 
 mitted that this amount might be less than the true value of the 
 ores; but there seem to be no doubts entertained that it could be more 
 than its true value. 
 
 The injury that this estimate might inflict on the company's 
 interests, is attributed to the absence of all documentary evid- 
 ence; but no reason tvhatever is given as to the greater injury that 
 such an estimate, if excessive, might cause to the defendant. 
 
 And yet, who is to blame for the absence of the data neces- 
 sary to form an estimate with some accuracy? 
 
104 
 
 Nobody else but claimants whose duty it was to present such 
 data, by showing their books and such other vouchers as would 
 conduce to the desired effect. 
 
 It was impossible for the Mexican Government to present 
 those documents. 
 
 How, then, can there be any justice in making the Mexican 
 Government resent the consequences of a neglect imputable to 
 the other party? 
 
 In all the Courts of the world when the plaintiff does not 
 prove satisfactorily what amount has he a right to perceive, 
 nothing is granted to him, and this Commission has recognized 
 in its decisions, the justice of such a practice. 
 
 In the decision of the case of Hale and Parker; no. 548, we 
 read: 
 
 aThe Umpire is unable to make an award, even if the evid- 
 ence justified his doing so, because it is not shotvn what tvere the 
 number of the cattle in questions 
 
 Even the American Commissioner has sometimes recognized 
 the justice of this practice. In deciding the case no. 614 of 
 Lambert Ireland, he said: 
 
 «If Mexican authorities appropriated or destroyed property, 
 the proof should show who the authorities were, when they 
 committed the acts complained of, what property they took or 
 destroyed and what its value was. Nothing of this sort is done 
 although a mining company is supposed to keep boohs, to possess 
 plenty of evidence of the wrongs and to be managed by inteligent 
 superintendents. The claim must now be rejected.)) 
 
 For the identical reason the claim of this company should have 
 been rejected in toto. 
 
 But since it has been granted the privilege of having its pre- 
 tensions attended to, when it has not even made an excuse for 
 not having presented any documentary evidence, all the advan- 
 
105 
 tages ought not be thrown on its side, disregarding entirely the 
 danger of imposing unjustly a burden, very heavy indeed, on 
 Mexico. 
 
 If, then, besides granting to the company instead of profits, 
 an interest of six per cent on all the capital its president says 
 was invested, not in the speculation alone, but also in house 
 rent in New York, lawyers and attorneys' fees, judicial expenses 
 &c, there is a determination to estimate by mere conjecture the 
 value of the ores extracted from the mines, notwithstanding 
 the admission that it is through the company's fault that the 
 necessary data are wanting; at least, the estimate of said value 
 ought to be reduced to its minimum. { 
 
 How many tons of ore are supposed to have been abandoned 
 outside of the mines? 
 
 Perhaps one thousand, the largest amount designated by the 
 superintendent. 
 
 Now, as the American ton contains six Mexican cargas [loads] 
 and two hundred pounds over, a thousand tons, would be 
 equivalent to 6,006 cargas, 200 pounds. 
 
 The value of the carga of ore, placed out of the mine, must be 
 six dollars, the lowest figure, in order that its reduction may 
 pay, as this operation costs from four to five dollars. 
 
 In a thousand tons of ore extracted from a mine there must 
 be a large portion, the reduction of which cannot pay, and we 
 have the best proof that there was such ore in the thousand tons, 
 in the fact, that even the most partial witenesses in behalf of the 
 claim, testified that in 1870 and 1872, there still existed a big 
 pile of the ore, which anybody could have taken; and only 
 Bxall could have entertained the queer notion that the tepetate 
 that existed out of the mines, had been placed there by the enemies 
 of the vompany. 
 
 It is possible, though not probable, that a portion of theaban 
 
108 
 «Joned ores should produce a little over two dollars, free of cost, 
 per carga; but as a larger portion would not produce anything at 
 all, the largest figure at which the whole concern can be esti- 
 mated at, is $12,012. 
 
 The undersigned has obtained the data on which this estimate 
 is based from Sr. Don Mariano Barcena, Professor of Mineral- 
 ogy, and Sr. Don. Jose* Maria Becerra, Expert in mines of the 
 State of Chihuahua, who knows well the mines of the District 
 of San Dimas in Durango, speaking of which he says that its 
 ores are what is called «rebeldes» — rebellious, — because their re- 
 duction, requires more expense and labor than the generality 
 of ores. Both these Gentlemen are now in Philadelphia* 
 
 * Under the heading of aRealty productive mines,» we read in the Minero Mexicano: 
 «The official data furnished by the Inspector of Mines of Nevada, give us the oppor. 
 tunity of valuing the considerable profits reaped by some of the companies of that mi- 
 neral District. We give here the estimates we have been able to form in view of those 
 data. 
 
 During the first three months of the present year the Belcher company extracted 
 39,292 tons of ore, producing in bulk $1,025,738; the cost of extraction amounted to 
 $779,714. 66, leaving a net profit of $249,023, 34. 
 
 The ((Consolidated Virginian extracted 64,462 tons: total product $8,362,876: expen- 
 diture, $1,582,696, leaving as net profit $6,680, 280. 
 
 The oOphir Co ,» extracted 8,130 tons, producing $326,075, 03: deducting $175,860 
 for expenses, a balance of $147,215, 03 remained as profit. 
 
 It follows from these data that mines] really productive are considered those yielding 
 as follows: 
 
 The mines of the Belcher company produced for every thousand tons of ore $6,840, 58- 
 
 The ((Consolidated Virginia minesn for every thousand tons $10,361, 28. 
 
 The Ophir mines for every thousand tons $18,107 63. 
 
 We have, then, that only one of these companies obtained a littlejover $100,000 for a 
 thousand tons of ore, whilst of the other two, one obtained $18,107, 63 and the other 
 $6,840, 58. Still, even the mines of the last named oompany are considered as really 
 productive, thus plaoing the mines of the Consolidated Virginia in the category of the 
 immensely rich mines. 
 
 The mines of the claiming company are placed by the decision in the same category, 
 since the produots of one tousand tone, or less, of its oree,\are estimatedat one hundred tkoue- 
 and dollars. 
 
tor 
 
 TIME THAT MIGHT BE REQUIRED FOR REDUCING THE 
 ABANDONED ORES. 
 
 One year may be enough to benefit as many as one thousand 
 tons of ore; but, had the company sufficient funds to cover the 
 necessary expenses? 
 
 If we are to believe in the memorial, when the mines were 
 abandoned, the company had not only exhausted all the capital 
 to which it could legally extend its engagements, but three 
 thousand dollars over. 
 
 When the Superintendent left Mexico he had to borrow mo- 
 ney to cover his travelling expenses, and according to the per- 
 son who lent him the money, he has not been reimbursed of 
 it yet. 
 
 It is, therefore, not only possible that the company might not 
 have been able to benefit the ores during a whole year, but it 
 might also happen that it should never have had sufficient funds 
 to that effect, in which case the ores would have been entirely 
 unproductive to the company. 
 
108 
 
 z 
 
 THE REASON WHY NO INTEREST IS ALLOWED BEFOBE THE ABANDONMENT 
 OF THE MINES TOOK PLACE. 
 
 According to the decision, ithas not been shown that the 
 company received any dividends before the 20 th of March, 1868. 
 
 President Collins says: «Said company has not made any 
 dividend, nor received any returns, nor been reimbursed for said 
 expenditures in whole or in part. And the silver ores which 
 said company had extracted from their mines, was their reliance 
 for getting back the moneys so expended and owing by them, 
 said company.)) 
 
 «As to the circumstances causing and attending said abandon- 
 ment, the situation and condition of said mines and property of 
 said company at the time, the quantity of silver ore which the 
 company had then extracted at the mines. . . . deponent has no 
 knowledge except what is derived from the statements of others 
 and the deposition of others made in this matter, which deponent 
 believes to be true.» 
 
 Therefore, the president of the company without having any 
 reliable documents as to the quantity and value of the ores 
 extracted from the mines, relied on such possible value to cover the 
 expenditures of, and the debts contracted by the company. 
 
 In speaking of the mines, the value of which he estimates in 
 not less than three millions of dollars, he adds: «Had said com- 
 pany been left in the quiet possession of said mines and pro- 
 perty, as deposed to by others in the matter, deponent, as already 
 
109 
 Btated, having no personal knowledge of the quantity and value 
 of those ores. . . .» 
 
 Mr. Collins, relying on what others said, believed that the pro- 
 duct of the ores extracted would suffice only to cover the 
 expenses of the company and its debts, and that not until 
 afterwards would they have commenced to perceive any profits. 
 
 This being the case, if, as it is presumed in the decision, the 
 ores could produce a hundred thousand dollars — admitting that 
 the necessary funds for its benefit could be counted on, — the com- 
 pany would not have been able to pay even its debts, if these 
 amounted to the sum fixed by Mr. Collins in his testimony of 
 September, 1870, and much less to pay any dividend out of the 
 profits. 
 
 Therefore, no interest should be granted from November 20 th 
 1868 on the value of the bonds, since the interest is awarded in 
 lieu of the dividens. 
 
 Admitting as a standpoint that up to March 20 th 1869 the 
 company would have received the sum of $ 100,000 as the first 
 product of its mines, even then it could not have paid its debts, 
 because if it did, why, it would have been left without any 
 funds to prosecute the works. 
 
 Therefore, at the very best and admitting that the speculation 
 was really a productive one it can only be supposed that it would 
 begin to yield profits for the bondholders from 1870, or after- 
 wards. 
 
 There is, then, no ground whatever to grant interest from the 
 day of the alleged abandonment of the mines, which took place 
 exactly at the beginning of the works, and when the company 
 had no funds left. 
 
CONCLUSION. 
 
 The undersigned, fearing that a resumS of his remarks on the 
 final decision of this case, would ODly increase the length of this 
 argument without any object, will confine himself now to request 
 the Umpire, with all due respect, that if he finds in them any 
 thing deserving his attention, not to decline, on any account, to 
 take them into consideration, thus affording additional proof that, 
 as a strict judge and an honest man, he is only guided in the 
 fulfilment of his high functions, by the inspirations of justice 
 and equity. 
 
 Should he finally confirm the decision, thus compelling the 
 Mexican people to take away from their meagre rents three 
 hundred thousand dollars annually for over two years out, in the 
 benefit of a foreign company, let it be after examining carefully 
 all the circumstances of the case; and with the most perfect con- 
 viction that his decision is entirely just and in strict conformity with 
 the principles of public lato, and that there is not any error to am- 
 end, committed in the first appreciation of said circumstances. 
 
 But should it appear that an error has been committed, why 
 should not be corrected? Is there any kind of considerations that 
 can prevent an honest man, a depositary of the confidence of 
 two nations, a judge whose only rule of action are equity, justice 
 and good faith, from rectifying an error? 
 
Hi 
 
 At some future time, if not to day, the attention of the World, 
 or at least of those who may study the decisions of this inter- 
 national Commission, will be called to the following facts: 
 
 A company organized in New York, without even the 
 knowledge of the Government of Mexico, sent its agents to that 
 country when in a state of war, to undertake the most uncertain 
 of speculations, a mining speculation; these agents bought some 
 mines, from its owner, whose principal reason for selling was 
 the want of security in the District where they were located, it 
 being a desert and at a great distance from the superior author- 
 ities; the capital of the company being partly exhausted by 
 robberies and exactions committed by the forces of the two 
 contending parties, between whom said agents carried on an illegal 
 trade, and partly in fitting out the speculation, when the ex- 
 penditures made were already in excess of the amount of the 
 capital, and at the very beginning of the works, when the war 
 was over, the speculation is abandoned; no complaint or protest 
 was then produced against the authorities of the country, charging 
 them with the responsibility of the abandonment; nearly two 
 years afterwards the testimonies of the employees of the com- 
 pany were for the first time procured, imputing the failure of 
 the speculation to said authorities; one person was sent out 
 to prepare some other testimonies, in that same direction, of 
 persons also addicted to the company; no document of any kind 
 was ever presented to prove the course taken to obtain the protection 
 of the superior authorities, nor the circumstances of the speculation, 
 its prospects of success, expenditures, products, &c, dsc. Neither 
 were certain proclamations and offers to foreigners inviting them 
 to send their capitals to that country, on the existence of which 
 the claim was founded, ever presented; sundry claims entirely 
 similar to this, were dismissed, even by the American Commis- 
 sioner; he, nevertheless proposed that this company should be 
 
112 
 indemnified only iu the amount it had actually spent in the spe- 
 culation, and interest thereon', the Umpire fixed said amount on 
 the sole ground of the testimony of the president of the company, 
 and granted moreover a considerable sum for the conjectural value 
 of the ores extracted from the mines; the Government of Mexico, 
 presenting some remarks about the foundation of the decision 
 requested the Umpire to reconsider the case, and, in view of said 
 remarks, and above all, talcing again conscientiously into consider- 
 ation the circumstances of the case, he revoked, modified or 
 confirmed his decision definitely. l 
 
 The public opinion will give its veredict. 
 
 Heavens grant that it may reflect all honor to the author of 
 the final decision! 
 
 [Signed.] 
 ELETTTETtlO AviLA. 
 
 Filed, September 19th. 187r3. 
 
 1 For the declaration of the Umpire in regard to this motion, see the pamphlet 
 containing the documents relating to Weil's claim. 
 
jB !R -Evi ^K-T ^A_ . 
 
 'Page. Line. 
 
 1 4 the United States in for: the United States, in 
 
 2 26 injustifiable „ unjustifiable 
 
 5 2 whiohis which is 
 
 5 20 dayly ,, daily 
 
 5 27 Still „ Still, 
 
 8 26 notwihstanding ,, notwithstanding 
 
 9 6 vexations ,., ,, vexatious 
 
 ,, 25 whit , with 
 
 10 1 reimbuzsed...... , reimbursed 
 
 12 6 unsufficient , insufficient 
 
 ,, 8 kep „ kept 
 
 ,, 15 y 16 necesarily necessarily 
 
 ,, 23 justiable justifiable 
 
 ,, 26 becauce , ,., ,, because 
 
 13 9 will be „ will he be 
 
 14 9 foreing , ,, foreign 
 
 15 5 capactty „ capacity 
 
 ,, 8 corporator , corporators 
 
 ,, 26 againts. <■ _ ,, against 
 
 16 19 makes it is binding ,, makes it binding 
 
 ,, 23 oitezens or sujects ,, citizens or subjects 
 
 17 14 stipulalation, „ stipulation 
 
 „ ,, bindinng ,, binding 
 
 18 6 onght ,, ought 
 
 „ 14 ot of 
 
 „ 17 others ,, other 
 
 18 1st. line of the note: the ,, the 
 
 19 32 necesity )t necessity 
 
 20 2 oontainging , containing 
 
 „ 10 some, ... „ some 
 
 21 15 sights.... , rights 
 
 ,, 19 functionnay ,, functionary 
 
 22 15 y 16 inportunate ,, unfortunate 
 
 „ 18 deem ,, deemed 
 
 „ 32 undertaking „ „ undertakings 
 
 „ „ difficulties. „ difficulties 
 
 15 
 
Pago Line 
 
 23 15 y 16 indiscreet for: indiscreet 
 
 24 5 then , „ them 
 
 25 24 y 25 possessreal , possess real 
 
 27 6 foreing ,, foreign 
 
 28 4 situatod , situated 
 
 „ 22 ill-vill ill-will 
 
 ,, 25 axasperated ,, exasperated 
 
 29 20 assasinated , assassinated- 
 
 30 9 for „ of 
 
 „ 17 assasination , assassination 
 
 „ 25 but , and 
 
 „ 30 circunstance , circumstance 
 
 31 2y3 grabled , grabbed 
 
 ,, 4 ambibitious , ambitious 
 
 „ 8 onlv ,, only 
 
 ,, 10 threatners ,, threateners 
 
 „ 18 y 19 even matter ,, even a matter 
 
 ,; 22 assasination ,, assassination 
 
 32 12 whic hat ,, which at 
 
 33 16 responsability .... ,, responsibility 
 
 36 22 hostility „ hostility, 
 
 37 24 ever , over 
 
 „ 27 be , , he 
 
 39 22 whereupon , whereupon 
 
 40 30 consul. Consul 
 
 41 13 groserj „ grosser 
 
 „ 14 claim ,, claim 
 
 ,, 31 commonweal ,. common-weal 
 
 42 5y6 abnegation and that , „ abnegation that 
 
 43 15 Spaniard , , Spaniard 
 
 „ 26 kuows ,, knows 
 
 44 4 exactiens ,, exactions 
 
 „ 6 all this „ all this 
 
 ,, 9 nimes ■ „ mines 
 
 45 11 accusser , , accuser 
 
 ,, 14 or owe, ,. or owe 
 
 45 26 wntruth ,, untruth 
 
 ,, 28 as win , ,, was in 
 
 „ 32 eyc-iwtnesa , eye-witness 
 
 46 21 of in 
 
 49 16 neoesity , necessity 
 
 60 7 havenotdue ,, have not received due 
 
 „ 14 animated ,, animated 
 
 ,, 15 mexicans , Mexicans 
 
 61 13 in New York.. , in New York, 
 
 „ 18 mexican „ Mexican 
 
 „ 27 Therefore _,, Therefore, 
 
 63 14 muting , t , mutiny 
 
Page. Line. 
 
 53 18 trough,.. for: through 
 
 ,, 20 witeuess v witness 
 
 „ 21 eft , „ left 
 
 54 28 vexations ,, vexatious 
 
 ,, 29 company „ company 
 
 55 32 extrated , , extracted 
 
 58 2 machinary ,, machinery 
 
 ,, 5 and..... , and 
 
 „ 11 note ,, not 
 
 „ 17 nirnes „ mines 
 
 59 18 superior Authorities ,, highest authorities 
 
 60 20 af of 
 
 ,, 24 compose ,, compare 
 
 „ 30 lhe „ the 
 
 62 2 evidence „ evidence. 
 
 64 3 Langhland&C Laughland & C.° 
 
 68 note beievedthat ,, believed that 
 
 73 5 3td , 3rd 
 
 75 24 pessonally.. ,, personally 
 
 78 14 woth ,, worth 
 
 ,, 16 costed , , cost 
 
 85 27 dividens „ dividends 
 
 88 17 before not , , before, not 
 
 „ 29 attorneys witnesses ,, attorneys, witnesses 
 
 96 26 y 27 beingexpert „ being an expert 
 
 97 3 thrwon , thrown 
 
 ,, 4 Still the ore ,, Still, the ore 
 
 „ 22 permmission , permission 
 
 ,, 26 worthless, „ worthless. 
 
 98 18 there three 
 
 „ 3 there ., three 
 
 ,, 4 load ,, loads 
 
 99 9 littlee , little 
 
 100 4 abandomnet , abandonment 
 
 101 1 totala bscence , , total absence 
 
 101 7 Managiny , Managing 
 
 ,, 22 explaining.. ,, explaining 
 
 102 19 difficulty difficulty 
 
 106 16 ofthenote— 10,361, 28 103,631,28 
 
 „ 24 (ousand. ,, thousand 
 
iZuaaMv %U&fc- 
 
 tfm % Sktmitktfax « all mMt 
 
 2/i ike Matter of the Award in Favor of 
 
 \,.: : : „e; Invention of, july 4% a.d. tfe 
 
 BRIEF ON BEHALF OF SAIEF- COMPANY, 
 
 By SHELLABARGER & WILSON, 
 GEORGtH. WILLIAMS, 
 s: S. ELY. 
 
 Thomas tfrOUl .fr Co., Saw Printers, Washington, D.C. 
 
WASHINGTON, D. C, 
 
 February 15, 1882. 
 
 To the Honorable the Secretary of State of the United 
 States : 
 
 Upon yesterday you did our client, La Abra Silver Min- 
 ing Company, the favor of saying to us> as the counsel of 
 that company, that we might file with the Department of 
 State, for its consideration, a brief regarding the propriety 
 of submitting, by treaty, the claim of said company against 
 Mexico to a new convention, being matters which were 
 finally settled by the award made by the Umpire, Sir 
 Edward Thornton, upon the 27th day of December, 1875, 
 under the treaty of the 4th of July, 1868. 
 
 For this opportunity of being heard we communicate to 
 you our sincere thanks. 
 
 Our understanding from your oral statement of yesterday 
 is, that although your department has entered upon the 
 consideration of a treaty making said re-submission, yet 
 that the affair has not passed into a stage where our discussion 
 of the merits of the question of such re-submission would 
 be useless because-closed by your action. 
 
 In this paper we shall not attempt an elaboration in the 
 way of argumeut of any point in the case, but shall content 
 ourselves with statements of propositions on which we rely 
 in resistance of the re-submission aforesaid. 
 
 I. 
 
 Our first proposition is, that the accusations made by 
 Mexico as to the honesty of the claim which was the basis 
 of said award % are without foundation in fact, and these 
 attacks have been conducted in the State Department in a 
 manner unusual, and, so far as we know, unprecedented as 
 acts assailing purely private property rights. 
 
Although, on the 31st day of October, 1878, in a written 
 communication to one of your predecessors, the said com- 
 pany, by its counsel, made written application for copies of 
 the allegations of Mexico assailing the said award, and 
 although, before and since that time, the said company made 
 application to be allowed to inspect said accusations and 
 the proof in support thereof, and if need be to introduce 
 countervailing proof, yet the said company has never had 
 opportunity to introduce a syllable of countervailing proof 
 regarding the said accusations, and was never permitted to 
 see a single line of the said charges of fraud by Mexico, as 
 made to the State Department, until these were in part read 
 to the Secretary of State (Mr. Evarta) on the hearing and 
 trial of said charges before him, when he was considering 
 the same under the fifth section of the act of 18th June, 
 1878. (20 Stats., 145.) The said company has been com- 
 pelled, therefore, to be content, so far as said accusations 
 of fraud are concerned, to meet the same as we hereby do 
 by direct, explicit, and total denial of the truth of said ac- 
 cusations. And we now aver our utmost confidence in the 
 truth of the statement which we tiow make, that the allega- 
 gations of fraud by Mexico and the pretended proofs in 
 support thereof — as, for example, the letters purporting to 
 be written by Charles H. Exall, which we understand to be 
 filed by Mexico in your department as evidence of fraud — 
 are false in fact, and are themselves the fruits of conspiracy 
 and fraud. 
 
 Of course we cannot here do more than meet accusation* 
 by denial — this, because no opportunity has been given, as 
 we have remarked, even to know the accusations tiled in 
 your department against us, much less to meet them by 
 proofs, until we were in the argument, which was accorded 
 us when the Secretary of State was deciding the case under 
 the fifth section, aforesaid, of the act of 18th of June, 1878. 
 
 You will pardon us for saying that it seems to us that 
 the demand of Mexico, that an award expressly made final 
 
by the supreme law of the land — an award honestly reached 
 after a trial, and opportunities of taking testimony extend- 
 ing through years — an award made by a tribunal of the high- 
 est and most unquestioned integrity and intelligence — shall 
 be overthrown by the Government of the United States as 
 against its own citizens on accusations of fraud, not in the 
 trial, but in the evidence introduced, without opportunity 
 given to such citizens to meet the accusations, is a demand 
 that is not only unprecedented, but is simply shocking to 
 every sense of justice. 
 
 II. 
 
 It is stated by those who advocate the destruction of 
 the said award, that there is no harm or injustice in said 
 destruction, because the. United States proposes to give 
 the claimant a new trial, in which, if its claim is just, the 
 claimant will have opportunity to show it such. 
 
 This apology for overthrowing the award, it must not be 
 forgotten, is made in regard to an award of whieh your 
 predecessor, in his letter of the 13th of April, 1880, to the 
 President, spoke as follows: 
 
 " Mexico has no right to complain of the conduct of the 
 claims before the Tribunal of Commissioners and Umpire 
 prqvided by the Convention, or of the judgments given 
 thereupon, so far as the integrity of the Tribunal is con- 
 cerned ; the regularity of the proceedings ; the full op- 
 portunity in time and after notice to meet the case of the 
 respective claimants, and the free and deliberate choice 
 exercised by Mexico as to the methods, the measure, and 
 the means of the defense against the same." 
 
 This statement of Mr. Evarts regarding the fullness 
 and fairness of the trial is not only undeniably true, but . 
 the truth, thereof has, so far as we know, not been denied 
 even by Mexico. 
 
 To apologize for an unlawful overthrow of a solemn in- 
 
ternational judgment reached by such a trial as Mr. 
 Evarts here describes, by saying that there, is no injustice 
 in its overthrow, because the claimant can have a new 
 trial, is the very irony of mockery. It is mockery as ap- 
 plied to the lawless destruction of any final judgment of 
 a court. It is supremely so in this case, for reasons that 
 perhaps never applied with the same force to any interna- 
 tional judgment in the history of the government. 
 
 Among the reasons why this is so are the following : The 
 hostility evinced by the Mexican officials against the United 
 States when the testimony for the claimants was being 
 taken in this case was extreme and supremely disgraceful. 
 It included attempts by the Mexican judge before whom 
 claimant appeared with its witnesses to take testimony, to 
 intimidate the witnesses, a declaration by him that they 
 should take no testimony in his court that would aid the 
 claimant ; that he would take no testimony for claimant 
 when its attorney was present. It also included the threat- 
 ening of witnesses to prevent them giving testimony for 
 claimant, and manifestations of mob and other violence 
 such as endangered the life of witnesses, attorneys, and all 
 others evincing friendliness to the claimant. For speci- 
 men proofs of all this, we refer amongst others to the fol- 
 lowing : 
 
 Testimony of Granger, printed case, p. 68. e-- 
 
 Testimony of Dana, " " p. 69, 70. 
 
 Testimony of Adams, " " p. 238. 
 
 Testimony of Martin, " «« p. 212. 
 
 And the only way claimant could obtain the testimony of 
 Mexican witnesses was to take them over the mountains 
 160 miles to Mazatlau and get them before a U. S. con- 
 sul, where they could testify without fear, aud where the 
 formalities requisite to make the depositious evidence could 
 be obtained. 
 
 It is not -too much to say, in view of what this printed 
 evidence in the former trial discloses, that no witness resi- 
 
dent of Mexico who should hereafter testify the truth in 
 favor of this American claimant would be permitted to 
 live in that country. And after the hue and cry that has 
 been raised about this case, no man who values his life 
 would dare go there to obtain the testimony which exists 
 there for claimant. Even before, when there was no 
 special excitement on the subject, it was as much as a man's 
 life was worth to go there and get it, and it was necessary 
 to seek it protected by an armed guard hired at the sea- 
 port, Mazatlan. 
 
 But again, suppose there were no difficulties of the kind 
 just stated, growing out of violence to the procurement of 
 testimony, still, the failure of memory, the death of wit- 
 nesses, the disappearance of witnesses, the enormous ex- 
 pense of procuring testimony at places so inaccessible as 
 these mines, and the like, make it perfectly obvious to 
 every one having the slightest experience regarding trials 
 in human courts, that the new trial promised by the pro- 
 posed treaty is, as to the claimant, a hollow mockery. The 
 transactions to be proved, be it remembered, occurred in a 
 foreign and a nearly inaccessible and semi-barbarous coun- 
 try, and occurred fifteen years ago, and of the witnesses for 
 the claimant of the utmost importance the following are 
 known to be dead, viz. : Francis F. Dana, for 20 years a 
 resident of Mexico, and a lieutenant-colonel in the Mexi- 
 can army in the war of the French invasion ; John P. Cry- 
 der, a lawyer and miner residing in Mexico; Geo. C. 
 Bissel, superintendent of mines adjoining La Abra mines ; 
 Jose M. Loaiza, resident of San Ygnacio, Mexico ; Thomas 
 J. Bartholow, the first superintendent of the company; 
 George C. Collins, the president of the company ; Charles 
 H. Exall, the last superintendent of the company, and the 
 alleged author of the alleged letters relied on by Mexico. 
 And there are other witnesses of whose death we have 
 heard, but of which we are not certain. And there are 
 others who would be necessary witnesses on a new trial 
 
who are dead. Much of the testimony of most of these 
 witnesses, and especially that of the superintendents, cannot 
 now be supplied. The claimant has no means of knowing 
 who the subordinates were, and no means at this late day of 
 ascertaining who, if any, were cognizant of the same facts ; 
 and it is notorious that the population of a mining locality 
 is a constantly changing one. To open the award and re- 
 quire a new trial under all these circumstances, would hi 
 something more than to entail a "great expense on the 
 claimant; would be something more than a hardship ; it 
 would be a downright denial of justice. ~No court of law 
 or equity would do it. 
 
 The following, found on pages 6 and 7, House Report, 
 700, 2d Sess. 45th Congress, is from twentj'-one firms at 
 Mazatlan, certified by Kelton, the American consul, to be 
 genuine, to embrace the principal foreign merchants and 
 mine-owners in the State of Sinaloa, and to be deserving of 
 full faith and credit. It is dated at Mazatlan 18th June, 
 1876, and, without the knowledge or agency of La Abra, was 
 filed by Mr. William M. Evarts before Sir Edward Thorn- 
 ton in support of a motion for rehearing of the claim of 
 "the Eosario and Carman Mining Company." The extract 
 is the last sentence in the memorial, of the twenty-one firms, 
 to Thornton, and is in these words : 
 
 "This state of affairs lasted for three years, paralyzing 
 all the industries of the country, and rendered resumption 
 impossible, not only of this company, but of many others, 
 among which we will cite the La Abra, situated near the 
 one in question, was abandoned from precisely the same 
 influences." 
 
 On the seventh page of the same House Report, 700, is 
 the memorial, to Thornton, of C. Woolworth, British consul 
 at Mazatlan, dated 10th June, 1876, describing the same 
 sort of outrages by Mexico, in which is the following : 
 
 "For nearly three years after the events at Candelero 
 there was but one mining company able to continue opera- 
 
tions. They did so because a Mexican general (Corona) 
 was a shareholder, many others being abandoned ; among 
 them I would mention the La Abra Company, because it 
 was situated near your mines, and they were forced by 
 precisely the same influences to leave their property." 
 
 Coming as these testimonies do, unsolicited by La Abra, 
 from all the great business firms of that State, and also 
 from the British consul, and testifying about matters they 
 knew and felt, they put to shame the fraudulent assertions 
 of Mexico now filed with you denying their offenses against 
 Americans. 
 
 III. 
 
 The foregoing has been said regarding the impropriety 
 of attempting to destroy said award upon the assumption 
 that there was no defect in the power of the government 
 to accomplish, through a treaty, such destruction. 
 
 We now turn to considerations going to show that the 
 government possesses no such power. And under this 
 head we state, first — 
 
 That the question whether this award shall be opened 
 and a new international trial had regarding said claim, was 
 under law acted upon by your predecessor, and by a pre- 
 ceding administration, and was decided under the provis- 
 ions of the above-named section 5 of the act of June 18, 
 1878 (20 Stats., 145). That seetiou is in" the following 
 words : 
 
 " Sec. 5. And whereas the Government of Mexico has 
 called the attention of the Government of the United 
 States to the claims hereinafter named with a view to a 
 rehearing : therefore be it enacted, That the President of 
 the United States be, and he is hereby, requested to inves- 
 tigate any charges of fraud presented by the Mexican Gov- 
 ernment 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 cases 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 Governments of the United States and Mexico 
 may agree, or until Congress shall otherwise direct; and, 
 in case of such retrial and decision, any moneys paid or to 
 be paid by the Kepublic of Mexico in respect of said 
 awards, respectively, shall be' held to abide the event, and 
 shall be disposed of accordingly; and the said present 
 awards shall be set aside, modified, or affirmed, as may be 
 determined on such retrial: Provided, That nothing herein 
 shall be construed as an expression of any opinion of Con- 
 gress in respect to the character of said claims, or either of 
 them." 
 
 Assuming, now, for the»purposes of the present point — 
 what we, however, emphatically deny — that it is within the 
 power of Congress to provide, as this section does, for 
 opening the said award without claimant's consent, please 
 observe carefully that the section renders it lawful for the 
 President to withhold the money awarded only in an ex 
 plicitly.defined case or condition, to wit, that on investiga- 
 tion the President should find that the award should be 
 opened and the cases retried in a manner agreed upon by 
 the United States and Mexico. 
 
 In other words, the section did not attempt to authorize 
 the President to withhold this money unless he found on 
 investigation, as a fact, that public laws, &c, required a 
 new trial to be had before an international commission 
 agreed upon by Mexico and the Uuited States. 
 
 The President and Secretary of State, in the communica- 
 tion of the 13th of April, 1880, after investigation under 
 said section — such investigation including the original 
 proceedings, testimony, arguments, and decision, the sub- 
 sequent representations of Mexico iu its diplomatic com- 
 munications to the State Department, and the supplemental 
 evidence supporting those representations, and among 
 
9 
 
 which were the alleged Exall letters — and after full hearing 
 and argument from both sides, decided that international 
 law, &c., did not require or permit such new international 
 trial, and hence did not permit said money to be withheld 
 under said section. This decision is expressed in the said 
 letter to the President of the 13th of April, 1880, in these 
 words : " I conclude, therefore, that neither the principles of 
 public law nor considerations of justice or equity require 
 or permit, as between the United States and Mexico, that the 
 awards in these cases should be opened, and the cases re- 
 tried before a new international tribunal, or under any new 
 convention or negotiations respecting the same between 
 the United States and Mexico." 
 
 This decision by the" Secretary of State was approved 
 by the President of the United States, as will be seen on 
 page 8 of Executive Document 150, Forty-sixth Congress, 
 Second Session, being a special message of the President 
 to Congress of date of 15th of April, 1880. The same 
 document from the Secretary of State will be found in the 
 report from the Judiciary Committee of the Senate, by 
 Senator McDonald, of 10th June, 1880, being Eeport 712, 
 Forty-sixth Congress, Second Session. 
 
 So that, confining ourselves now to tbe thing decided by 
 the Secretary in his paper to the President of the 8th Au- 
 gust, 1879, and which is quoted on page 2 of said special 
 message of the President, it constitutes a decision ex- 
 hausting the power attempted to be conferred by said sec- 
 tion five, and negatives the only condition on which the 
 said section five attempted to legalize the withholding of 
 the money awarded. 
 
 Section five did not attempt to legalize any other new- 
 trial than an international new trial, as distinguished from 
 a domestic one; and when the Secretary decided that justice, 
 international law, and honor forbade a new international 
 trial, he therein decided the only , question which section five 
 attempted to submit to him. 
 2 
 
10 
 
 The suggestions of the Secretary regarding a new do- 
 mestic trial to be ordered by Congress were wholly outside 
 of the provisions of section five. So it was explicitly de- 
 termined unanimously by the Judiciary Committee of the 
 Senate in the above-named report of 10th June, 1880. 
 See especially the concluding part of the report. 
 
 But the thing adjudged by the former administration 
 does not stop with the foregoing decision communicated 
 to the President by the Secretary on the 8th of August, 
 1879, but it proceeded on the 13th of April, 18H0, to again 
 decide that the award could not according to international 
 law be opened up and a new international trial be bad. 
 We beg your attention to the forcible statement by the 
 Secretary on pages 3, 4, and 5 of said Executive Document 
 150, special message of the President. 
 
 After thus reaffirming his decision against a new trial, 
 he proceeds further to decide in the following words : 
 
 " Unless Congress should now make this disposition of 
 the matter" (viz.: provide by statute the machinery for a 
 domestic investigation) "and furnish thereby definite in- 
 structions to the department to reserve further payments 
 upon these awards till the conclusion of such investigation, 
 and to make such further order with the same thereafter 
 as Congress might direct, it would appear to. he the duty 
 of the Executive to accept these awards as no longer open 
 to reconsideration, and proceed in the payment of the same 
 pro rata with all other awards under the Convention. 
 
 " Wm. M. Evarts." 
 
 On the 16th of April, 1880, this message of the Presi- 
 dent was referred to the Committee on Foreign Relations 
 of the Senate. The same subject had gone to the J udiciary 
 Committee of the Senate during the same Congress, by a ref- 
 erence to that committee of Senate bill 1682, directing the 
 Court of Claims to investigate the said claims of Weil and 
 La Abra. The above named report by Senator McDonald, 
 No. 712, is the action of the Senate committee, which was 
 approved by the Senate, upon said Senate bill 1682. 
 
11 
 
 It thus appears that after the 10th of June, 1880, upon 
 a full consideration, and unanimously, the said committee 
 refused to take any action favoring the domestic investiga- 
 tion mentioned by Mr. Evarts in his said letter of the 13th 
 April, 1880. Mr. Evarts decided, in the language above 
 quoted from him, that he would proceed to pay the said 
 La Abra award unless Congress should " now" provide the 
 machinery for such domestic investigation. Congress de- 
 liberately decided that they would not order said domestic 
 investigation. And the committee on the last page of its 
 report condemns the said plan of domestic investigation in 
 these words : 
 
 "The bill under consideration proposes to withdrawthese 
 two claims from the dominion of international jurisdiction, 
 and place them before a tribunal organized and existing 
 solely by virtue of the laws of this country, and in this 
 way it would seem designed to avoid the opening up of 
 other questions of complaint that are known to exist on 
 behalf of citizens of the United States whose claims for 
 various causes fail to receive favorable consideration by said 
 Commission under the treaty creating the Commission." 
 
 We beg that the Secretary of State will not forget the force 
 of this sentence of the committee, and will not entertain 
 the motion of Mexico to set aside awards in favor of 
 American citizens in spite of her solemn covenants that 
 such awards should be final, and yet demand that the United 
 States shall- treat as final the defeat of American claims 
 under the finality clause of said treaty, which defeat was 
 obtained by the fraud of Mexico, or by inevitable casual- 
 ties. 
 
 Here, then, we assert respectfully but positively, is a de- 
 cision by the last administration, made under said section 
 five, in which this government (1) refused to enter into anew 
 treaty opening up said award in any event whatever ; and 
 (2) decided that this government would not . investigate, 
 through a domestic tribunal, said charges of fraud unless 
 
12 
 
 Congress should "now" (13th April, 1880) provide the 
 methods of such domestic investigation ; and (3) if such 
 action by Congress were not now given the Executive 
 would proceed to pay the said awards pro rata. 
 
 Congress did not make, but in one branch explicitly con- 
 demned, said provision for a domestic trial, and thereupon 
 the Executive department of the government proceeded 
 to and did pay said award as the President and Secretary 
 decided they would do. 
 
 Here, then, is action by the last administration, and also 
 by Congress, which effectually exhausts all power at- 
 tempted to be conferred by said section five of said act of 
 18th June, 1878. This action constitutes as to the present 
 administration res judicata as clearly and effectually as it 
 is possible to conceive. 
 
 We need not cite authorities to show how thoroughly 
 settled is the doctrine stated in the case of The United 
 States v. The Bank of the Metropolis, 15 Peters, 401, 
 where the court says : 
 
 "This right of an incumbent of reviewing his prede- 
 cessor's decisions extends to mistakes in matters of fact 
 arising from errors in calculation and to cases of rejected 
 claims in which material testimony is afterwards discov- 
 ered and produced. * * * * It is no longer a case 
 between the convictions of one officer's judgment and 
 that of his successor." 
 
 The decisions by the Attorneys-General affirming this 
 doctrine have been incessant and uniform ever since the 
 organization of the government, and are embodied in an 
 unvarying practice. . 
 
 If the present Secretary of State shall, in the present 
 matter, overthrow and disregard the action of his imme- 
 diate predecessor, we think the precedetit will be without 
 an example iu our history. 
 
13 
 
 IV. 
 
 Our next proposition, resisting the proposed destruction 
 of the said award, we state in the following words : 
 
 Money recovered by the citizen in an international 
 award is the private, vested, personal property of the citizen — 
 vested, adjudged, and secured by a judgment of one of the 
 courts of justice created and protected by the Constitution ; 
 and such judgment can be assailed in no other way than 
 in the modes provided by the general law of the land ; and 
 the property vested by auch judgment is private property 
 which can be " taken " only by " due process of law." 
 Each element of this proposition is established by the most 
 conclusive authority. 
 
 That a commission created by treaty " is a court " in the 
 highest legal, judicial, and constitutional sense of that word, 
 is a matter settled not merely by the very letter of the 
 Constitution which makes the treaties creating interna- 
 . tional commissions the supreme law of the land, but the 
 same thing is settled by every decision of your department 
 and of the courts, which have disposed of that question. 
 Pardon us for begging your attention to the letter of your 
 great predecessor, Mr. Seward, of the 3d of March, 1869, 
 addressed to the Government of Venezuela, where he al- 
 ludes to and discusses this subject and cites the authorities. 
 
 That a decision or award by one of these commissions 
 is technically a judgment of a court, having the legal efficacy 
 of a technical judgment in the way of vesting a legal title, 
 to the money awarded, in the awardee, is expressly decided 
 in Judson v. Corcoran, 17 Howard, 612. 
 
 That the moneys awarded by such judgments become in 
 virtue of the judgment — because vested — private personal 
 property of the awardee in such sense as that the United 
 States cannot deal with the money awarded as a mere 
 " donation " secured through the good offices of the gov- 
 
14 
 
 ernment; that as such property it passes to assignees in 
 bankruptcy, and to the heirs and representatives of the 
 awardee, and that it cannot be taken for public use except 
 upon full compensation, is expressly recognized and declar- 
 ed in Coraegys v. Vasse, 1 Pet., 212-216. 
 
 The same thing is decided in Mead's case, 2 Ct. of 
 Claims Kep'ts, 224-227, &c. 
 
 This Mead's case was cited with approbation by Mr. 
 Seward in his above-named letter of 3d of March, 1869. 
 
 That the relation of the United States to the money so 
 awarded us is in no sense tbat of owner, but only trus- 
 tee, is not only decided in tbe above cases, but is so ex- 
 pressly declared by Attorney-General Hoar in Gibbs's 
 case, 13 Opins., 32, 34. 
 
 Not only is not tbis award, in any sense, the property of 
 tbe United States — not only were the losses covered by the 
 award the losses of private American citizens, but the award 
 is the private property of the citizen in the sense that the 
 citizen, under the covenant of his government that the 
 award should be final, was required to and did, at the peril 
 of the life of each agent who went to Mexico to take testi- 
 mony, pay all the expenses of counsel, testimony and print- 
 ing, amounting to many thousand dollars of actual cash 
 paid out. 
 
 Now it is proposed that our government, as against its 
 own citizens, shall take, hear, and consider the lying, secret, 
 and ex parte statements of Mexico, assailing the award, and 
 withhold from its citizens all knowledge of what the char- 
 ges are until they are disclosed in the argument of the case ; 
 and it is further proposed that our government shall, under 
 those circumstances, trample down its citizens' award by 
 methods denounced by your own Supreme Court as unlaw- 
 ful — as violence! 
 
 "We beg especial attention to this Gibb's case because it 
 is an able opinion, by an eminent attorney-general, explicit- 
 ly and exactly condemning as lawlessness what Mexico in 
 
15 
 
 the present case proposes, to wit, the submission to a new 
 commission of a claim already fairly adjudicated by award, 
 without the assent of the claimant. 
 
 In this case Gibbs had recovered an award under our 
 treaty with New Granada of the 10th December, 1857. 
 Without the consent of Gibbs, the United States submitted 
 Gibbs's claim to a new commission constituted under the 
 treaty of the 10th February, 1864. This was done on a 
 cry of fraud by New Granada. I Inder the second submission 
 Gibbs's claim was rejected, he refusing to submit his claim 
 to the said new commission. He demanded his pay from 
 the United States under the first award. 
 
 The Attorney-General decided that " by the submission 
 of the claim to this commission in the manner stated the 
 claimant was not divested of his rights as against New 
 Granada under the award of the Umpire aforesaid." He 
 decided that he was entitled to his money from the United 
 States upon producing the certificate of the first award in 
 his favor, and the United States was compelled to pay, and 
 has recently paid in full, the said first award iu favor of 
 Gibbs, notwithstanding the second submission and the de- 
 cision against him thereunder. 
 
 To the following words of the Attorney-General we call 
 your atteution : 
 
 "I cannot assent to the view that this Government 
 could affect his rights against New Granada under the 
 convention by submitting his case to the second board, or 
 that the board was able to arrest those rights by any action 
 upon the claim under the submission of our Government 
 against his will and without his consent." 
 
 He then states the terms of the treaty making the 
 awards final and requiring New Granada to pay the 
 awards to the United States — provisions in substance 
 identical with the analogous ones in this treaty with Mex- 
 ico. He then proceeds in these words : 
 
 " Such payment to our Government was of course in- 
 
16 
 
 tended to be in trust for the parties whose claim should be 
 ratified. * * * 
 
 "The claimant has always contended and now contends 
 that it was duly and regularly submitted to the Umpire; 
 that his decision was in form and effect & full, final, and 
 conclusive adjustment of the claim on the point of validity 
 and amount," and that the Government of New Granada 
 was bound by that adjudication, and obliged under the 
 stipulations of the treaty to pay the amount thus awarded 
 to our Government for his benefit." 
 
 The Attorney-General then reviews this contention of 
 Gibbs, finds that he' did nothing to waive his rights under 
 the first award, that the Government of the United States 
 had no power against his consent to submit his claim a 
 second time for trial, and that his vested rights in the 
 award first made, remained complete and perfect, notwith- 
 standing the second submission and award thereunder 
 against him, and that the United States as trustee remained 
 liable to Gibbs for said money. 
 
 This decision, of course, covers our present case all over 
 and completely, and decides that you and the entire executive 
 of the United States, including the treaty-making power, 
 have not the legal competency to take from us, against our 
 will, one farthing of the money awarded us, through the 
 device of resort to a new international submission. 
 
 It is a decision that such method of taking the citizen's 
 property from him, through act of the executive and treaty 
 power, is not 
 
 "Due Process of Law." 
 
 Mr. Secretary, you are to be congratulated, as your country 
 is, that property of the citizen, whether held in his apparel, 
 his house, his field, his judgment, or his award, cannot be 
 destroyed by "treating" these away, through international 
 conventions. You are to be congratulated that this is not 
 " due process of law." 
 
17 
 
 The same thing which the Gibbs case decides, holding the 
 Executive and treaty power incapable of stripping a citizen 
 of his property in an international judgment and award, is 
 held by the Supreme Court of the United States in the case 
 of Richart v. Felps, 6 Wall., 160, where is found a case in 
 which, under the terms of a treaty, the United States had 
 submitted to Governor St. Clair the question whether a 
 certain tract of land belonged to a certain French settler in 
 virtue of another clause of the treaty. 
 
 Governor St. Clair assumed jurisdiction and made the 
 award under the treaty deciding the settler to be entitled 
 to the land, and gave him a certificate to that effect dated 
 the 12th of February, 1799. On the 20th February, 1812, 
 Congress created a commission with power to revise the 
 decision made by St. Clair, and this board did revise and 
 report against St. Clair's decision, and on this report the 
 United States attempted to overthrow the St. Clair title, 
 ordered a sale of the lands, and did sell them to one Rich- 
 art, and gave him patents therefor. The question before 
 the Supreme Court was, could Congress, as against the 
 award of St. Clair, submit the title of St. Clair's awardee 
 and grantee to a new trial before a new commission ? 
 
 The Supreme Court held that Congress could not do so 
 and that the patents to Richart were void. 
 
 This, we submit, is our present case over again. Upon 
 this point the court in its unanimous opinion says: 
 
 " Congress is bound to regard puMic treaties,' and it had no 
 power to- organize a board of revision to nullify titles confirmed 
 many years before by the authorized agents of the government." 
 
 vi 
 
 ©rice more: Suffer lis to beg your 1 attention to this fur- 
 ther feature of the La Abra case. It is riot pretended' by 
 3 
 
18 1 
 
 Mexico that the subject-matter of this claim did not exist. 
 That the mines were bought in Mexico by the claimant 
 at a large cost; that they were worked by claimant at an 
 enormous expense; that violence was resorted to by Mex- 
 ico to drive claimants away from their mines, cannot be 
 honestly denied even by Mexico. 
 
 As found by Secretary Evarts, the utmost that Mexico 
 can honestly pretend to is that the damages award^were 
 excessive. 
 
 And it is not pretended that the alleged excess of the al- 
 lowance was the result of any corruption of the court that 
 made the award, or any fraud by the successful party, where- 
 by Mexico was (here to quote the words of the Supreme 
 Court, 8 Otto, 61) " prevented from fully exhibiting its case, 
 by reason of which there never was a real contest before 
 the court of the subject-matter of the suit." 
 
 On the contrary, the truth is stated by Mr. Evarts 
 when he says (see bot. p. 3 and top of p. 4, Executive 
 Document 150, Forty-sixth Congress, second session, above 
 quoted) : 
 
 " In the complaints of the Mexican Government there is 
 not the slightest impeachment, expressed or implied, of the 
 character or the composition of the Commission, of its 
 methods of procedure, or of the entire regularity and in- 
 tegrity of its actual proceedings. * * * The Govern- 
 ment of Mexico had full opportunity and ample time to 
 present its defense, both in evidence and argument, against 
 any claim that was submitted. 
 
 " In the La Abra case a large amount of testimony was 
 taken on both sides, the comparison and valuation of which 
 was within the power of the Commission, and tne opinion 
 of the Umpire shows that it was carefully considered." 
 
 In other words, according to the utmost contention of 
 Mexico, this is a case wherein an honest, full, fair, and de- 
 liberate trial, in which testimony was taken, submitted, and 
 considered on behalf of each party, has been had, and the 
 
19 
 
 successful party is alleged to have recovered an exaggerated 
 award, and that testimony has been found, since the final 
 decision, showing the claim in part unfounded. 
 
 This, therefore, places this case in the class considered 
 by the Supreme Court in United States v. Throckmorton, 
 8 Otto, 61. 
 
 This is an elaborate consideration by the Supreme Court 
 as to what kind of frauds will authorize chancery to set 
 aside final judgments or awards. The conclusion unani- 
 mously reached by the court is, that neither false testimony, 
 forged testimony, nor any other frauds, which were not ex- 
 trinsic or collateral to the matter tried, will vitiate the 
 judgment. 
 
 We beg the Secretary to apply the doctrine of this 
 Throckmorton case to our present inquiry. If the Sec- 
 retary will do so he will find that, even in the courts, Mex- 
 ico cannot successfully assail the present award in favor 
 of La Abra, even if every word of her false accusations of 
 fraud were confessed to be true. 
 
 Much less can these accusations be successfully presented 
 either to the Executive, to the treaty-making power, or to 
 Congress, which have no jurisdiction to consider them, 
 because the decision by the Executive, the treaty power, 
 or by Congress does not constitute " due process of law." 
 
 VII. 
 
 As to the alleged letters of Charles H. Exall, (which, as 
 claimant understands it, is the " newly discovered " evi- 
 dence upon which Mexico relies, although the letter-book 
 containing them, having been in the hands of Mexico ever 
 since the claimant's abandonment of the mines, and all 
 records and property pertaining to them in 1868, it is diffi- 
 cult to see how it can be properly called " newly discov- 
 ered,") the claimant charges that they are the result of con- 
 spiracy and fraud, and believes it can be shown upon the 
 
20 | 
 
 face of the book itself. But the claimant has never been 
 accorded an inspection of that book. Though applications 
 were made to' see it while that book was in the State De- 
 partment, they were not successful, and Mexico has with- 
 drawn the book from the Department, thus precluding any 
 possibility of inspection by the claimant. This withdrawal 
 is in harmony with all the other methods adopted by Mex- 
 ico in this case. 
 
 We here leave this case. 
 
 We wish, in conclusion, most respectfully but earnestly 
 to protest, on the part of said company, against any at- 
 tempt at the opening, or overthrow, of said award in its 
 favor, by means of resort to a new convention or other- 
 wise. 
 
 We give notice that said company refuses assent to any 
 step in the direction of opening or assailing said award, 
 and will insist upon the payment thereof, according to its 
 terms, and will endeavor, in every proper way, to hold the 
 United States responsible as trustee for the moneys afore- 
 said recovered by said award. 
 
 We conclude this statement, Mr. Secretary, by a very 
 sincere expression of our profound respect for, and confi- 
 dence in, the wisdom and integrity of your action in this 
 matter, after all the facts shall be fully before you. 
 
 Shellabarger & Wilson, 
 George H. Williams, 
 Sumner Stow Ely, 
 Attorneys for La Abra Silver Mining Company. 
 

 
 fig?! 
 
 
 41 : -- '• /