UC-NRLF $B 20 23b '^f^' %« i;«^-v,i,*"i.si," •-»♦ ?i-.r^" S'S.v .^^ -ii- *•■.?»■ JS^^' Fiii^^; / ^^ ^ Ml t* Dig itized bfthie Internet Aremve in 2007 with funding from rrMicrosoft Corporatior unite* SUtM TRAKTSiiATION BY J. CABL05 MEXTA »eal to the fientiments of Jastice and Vqnltj of the United State* TBANSLATION BY J. CAKLOS MEXIA MSZICAK SECailABV OF SXtO C0MMU8ION MEXICO GOVERNMENT PRINTING OFFICE {^ ■ -, • '<: V <> '• COPY OF WEIL'S APPLICATION. I Benjamin Wei], a citizen of the United States of Ameri- ca, do by these presents declare that on or about the twentieth of September, Eighteen hundred and sixty four I had on several trams in the Republic of Mexico and U7ider my special control the following described property belonging solely to myself: Nineteen hundred and fourteen bales of cotton average weight of five hundred pounds, or nine hundred fifty seven thousand pounds at thirty five cents per pound, making three hundred thirty four thousand nine hundred and fifty dollars. Said pro- perty was at that time, then and there on the Mexican territo- ry hetzveen Piedras Negras and Laredo, etc, that it was seized and by force taken from me hij the Representative forces of the Repu* hh'c of Mexico, then in command of that portion of the country. That I often solicited the release of my property, but could obtain no satisfaction whatsoever; that 1 have never laid this claim he- fore cither the United States or Mexican Governments askiny pay- 77ient thereof, that I have never transferred my rights or any portion thereof to any other person or persons. 1 That I was at the time of the seizure of my cotton by the Mexican Government a citizen of the United States, as per an- nexed certificate of oath of my naturalization. That at the time of the seizure of my cotton by the Mexican Government I was and am now a citizen of New-Orleans, Louisiana. That I was born in Bonywiller, Bas Rhin, France, am now forty six years old and have resided in the State of Louisiana since the twelfth of June eighteen hundred and fifty, am a merchant by occupa- tion. That Iwas at the time of the seizure of my cotton stopping at MatamoreSy Mexico, That my property was not insured from the fact that no insurance could be effected on waggon or land trans- portation. New-Orleans, September 10"' 1869. B. Weil. Sworn to and subscribed before me this 13*^ September 1869. H. Lo£w. U. S. Com. (Seal.) ly the undersigned herehy certify that the above statement is correct. Geo. D. Hite. Sworn to and subscribed before me by G. D. Hite this IS*'' September 1869. H. LoEw, U. S. Com. (Seal.) Evidence in chief for the claimant. Deposition of John M. Martin taken before me the under- signed, a notary public in and for the Parish of Orleans, State of Louisiana, on this 26*^ day of July A. D. 1870, and intended to be used before the Joint Commission between the United Sta- tes and Mexico now sitting at Washington City, D. C. in the matter of the claim of Benjamin Weil against the Republic of Mexico, arising out of the illegal seizure of a large number of bales of cotton belonging to said Benjamin Y/eil, which was forcibly and unlawfully taken popession of by the liberal forces of Mexico under the command of General Cortinas, who com- manded the entire District where this unlawful seizure ocurred and who was known to be acting under orders from Don Beni- to Juarez, President of said Republic of Mexico. Deponent being sworn in accordance with law declares on his oath that he was born in Belmont County, Ohio, is now forty five years of age, and that he now resides at New-Orleans, La., and is by occupation a steamboat Pilot. That on or about the 20*^ September A. D. 1864 he was ri- ding in compant/ of a large tvaggon train loaded tuith cotton belon- ging to said Benjamin Weil, and to his certain knowledge this train had over nineteen hundred bales of cotton belonging sole- ly to said B. Weil, which was destined to bo delivered at the City of Matamoros in the Republic of Mexico; and that on arriv- 4 ing with said train of cotton at a place [do not remember the exact name'] but knows this to be between Piedras Negras and Laredo y that the'entire train as well as the cotton was taken pos- session of by the forces under the immediate command of General Oortinas: That the deponent was present at the time of this unlawful seizure and that besides his own knoledgwe that the said property did so belong to the said Benjamin Weil, he was likewise informed by the teammaster [?] in charge of said team that the entire contents, say over nineteen hundred bales of cot- ton was the sole property of said Benjamin Weil and intended to be delivered by said B. Weil's order at Matamoros. He further states that the entire account of over nineteen hundred bales of cotton was forcibly taken possession of by said forces under com- mand of General Cortinas, who represented the liberal Govern- ment of Mexico, and he affirms that he witnessed and was pre- sent at the taking of said property by said liberal forces, and li- kewise of the turning loose of the mules and horses and team con* veying saidcotton^ that he witnessed all these at the place between Piedras Negras and Laredo at the time and date above stated and that the unlawful seizure was forcibly made by the liberal sol- diers under command of General Cortinas, and that the destina- tion of said cotton was the city of Matamoros where all produce was taken, then and there passed through the regular Mexican Custom-houses and then shipped abroad. He further declares that the said cotton at the time of seizure had not reached any Mexican Custom-House where the proper duty coidd have been de- manded and would have beenpaid. He further declares on oath, that said Benjamin Weil, the entire owner of the cotton seized, was considered at Matamoros, Mexico, a large operator in cotton and he knows to his certain knowledge that said Weil has always f aid duty at Matamoros to the Mexican Government \f\ on all cotton which he received and exported at and from Matamoros^ this being 6 the 'place where the said Weil temporarily/ resided for business purpo- ses; he further declares on oath that he has known the said B. Weil for many years and had often transaction with him and from his own observation as well as other parties who also transacted business with said Weil, he cannot but state that he has ever found him acting with honesty and integrity towards all. He also declares on oath that he is in no way connected or interest- ed in this claim whatever, and that he is convinced by his own personal witness and presence of said seizure that the said cot- ton, say, over nineteen hundred bales of cotton was the sole pro- perty of said B. Weil and that they were forcibly taken by the liberal forces of General Cortinas representing and known then to be an officer of high rank in the liberal army in Mexico, the President of which Republic was Don Benito Juarez and further deponent says not. John M. Martin. Parish of Orleans. State of Louisiana. Personally appeared before me, the undersigned a Notary Pu- blic in and for the Parish and State aforesaid, John M. Martin, who signed the foregoing affidavit in my presence and SAvore to the same before me according to law. I certify that the said John M. Martin is well known to me to be the person represen- ted in said affidavit. I further certify that I have no interest in this or any other claim before the Mexican Joint Commission now in session at Washington D. C. In testimony whereof I have hereunto set my hand and affixed my Notorial seal of office 6 this 26*^* day of July A. D. 1870 at the city of New-Orleans, State of Louisiana. Andiiew Hero, Not. Pub. [Seal.] Joint Commission of the United States of America and the United States of Mexico. State of Lousiana, Parish of Orleans, Y SS. City of iV^ew-Orleans, J Benjamin Weil. vs: The United States of Mexico. Testimony on behalf of complainant taken before me George William Christy, a duly qualified Notary Public, on this 15*^ day of December A, D. 1869 Emile Lanndner, being first duly sworn, deposes and says. I am thirty years of age, I was born in the State of Missis- sippi, at present I reside in the city of New-Orleans, and my occupation is that of a cotton Broker, 1 am not in any manner interested in the within, either directly or indirectly, nor am I agent or attorney of claimant, or of any person having an in- terest in the claim. At the time of the happening of the events, I am about to relate, I: resided in the Republic of Mexico-, [?] and was engaged in the occupation of a supercargo. I have known complainant, Benjamin Weil, since the year 1861, have always known him to be a just, upright and honest man in all his transactions, — he was wealthy and speculated largely in cot- 7 ton, during the late Mexican war — From tvhat I have heard from others upon the subject and general report in Mexico and el* seivheve I believe that sometime in the 7/ ear 1864 the complainant* Weil lost a large amount of cotton [over one thousand bales'] captured and taken from him by the forces of the liberal party in Mexico. The cotton then was worth about one hundred and sixty dollars per bale in gold. Sworn to and subscribed before me this 15"' day of Dec. 1869. George U. Christy, Notary Public. Emile Lanndner. Anchus J. M® Culloch, being first duly sworn deposes and says. I am 29 years of age, I was born in New-Orleans, Louisia- na and at present reside in said city, and my occupation is that of a speculator in cotton. I am not in any manner interested in the within claim, nor am I agent or attorney of complainant or of any other person having an interest in the claim. At the time of the happening of the events I am to relate, in the Re- public of Mexico, I was engaged in the occupation of a super- cargo. I have known complainant Benjamin Weil since the year 1862 and have always known him to be an upright and honest man, just in all his dealings, — he is a man of wealth and during the late civil war in Mexico speculated very extensively in cotton. From general report on the subject and from what I have heard stated by others in Mexico and other places, I believe that said complainant Weily in the year 1864, had over one thousand bales of cotton taken forcibly away from him by the forces of the libe* ral or Juarez party in Mexico, and that said cotton, at the time of its capture or forcible detention by the forces of the liberal 8 party as aforesaid was worth one hundred and sixty dollars per bale in gold. A. J. M"". CULLOCH. Sworn to and subscribed before me this 15**' Dec 1869. Geo. W. Christy, Not. Pub, George D, Hite, being first duly stvorn deposes and says: I am 33 years of age; I was born in Richmond, Ya; at pre sent I reside in New-Orleans, La. My occupation is that of a steanihoat agent^ I am not in any manner interested in the tvithin claimy et her directly or indirectly^ nor am I agent or Attorney of claimant y or of any person having an interest in the said claim. At the time of the happening of the events I am about to relate, 1 zvas residing in Matafnoros, Mexico, and my occupation was that of a contractor. On or about the month of September 1864, the complainant Benjamin Weil zvas residing in Mexico and doing business as a trader or speculator. I was tvell acquainted with him^ at the time he had a very large amount of cotton / should say about nineteen hundred bales (1,900.) Said cotton loith other cotton (?) was forcibly seized and taken possession o^ly the forces of the liberal or Juarez party and detained; said seizure was made in Mexican Territory, between Piedras Negras and Laredo; said cotton when seized was worth about one hundred and se- venty five dollars per bale in gold. Complainant Weil at the time of the seizure of his cotton, was a citizen of the United 9 States of America. I have kaowa him since about 1855: du- ring the civil troubles in Mexico, he was a large speculator in cotton, had the reputation at one time of being one of the hea- viest speculators in Matamoros; he was wealthy, and I have al- wa^s known him to be a man of strictly honorable and upright principles, whose word could be depended upon at all times. George D. Hite. Sworn to and subscribed before me this 15*^ Dec. 1869. George Ww/Ohf^sty, Ni/P. J- J f i [Seal.] Joint Commission of the United States of America and of tlT^ United States of Mexico. State of Louisiana, ^ Parish of Orleans, > SS. City of New-Orleans. J Benjamin Weil vs: THE UNITED STATES OF MEXICO. Testimony on behalf of complainant taken before me George William Christy a duly qualified Notary Public on this seventh day of February A. D. 1870. John J. Justice, being first duly sworn, deposes and says. I am 37 years of age. I was born in the State of Louisiana; at present I reside at Alexandria, La., and my occupation is 10 that of a Stage Agent. I am not in any manner interested in the within claim either directly or indirectly, nor am I agent or attorney of claimant or of any person having an interest in the claim. At the time of the happening of the events, I am about to relate, say in September 1864, I was residing in the town ofMatamoros in the Republic of Mexico andi 2ms engaged in diiv- ing a stage from Matamoros to Piedras Negras and other points on the road in Mexico. I am well acquainted with Mr. Benjamin Weil the complain- ant in this case. That on or about the 20"' (Twentieth] day of September 1864 1, was with a train of waggons, loaded with cot- ton, say a little over Nineteen hundred bales [I think nineteen hundred and fourteen Bales] said cotton was worth thirty five cents per pound. * It was worth in round numbers about three hundred and thirty thousand dollars. The bales would average Five hundred pounts [500] to the Bale. Said cotton was owned by Mr. Benjamin Weil; said cotton was taken possession of by force by an armed force of the Liberal or Juarez Party of the Me- xican States on the route between Piedras Negras and Laredo in the Republic of Mexico. That I was present and witnessed the taking of said proper- ty. The party taking of possession of the property at the time claimed, and as I afterwards learned, belonged to the command of General Cortinas. They stated that Mr. Weil would get his cotton back, or he would be paid for it. Sworn to and subscribed before me this 7*^ February 1870. George W. Christy, Not. Pub. John J. Justice. * See fLe Statement of B* Weil in the eecond motion of the Mexican Agent. 11 Joint Commission of the United States of American and the United States of Mexico. State of Lousiana, Parish of Orleans^ City of New Orleans^ '^1 ms, J Benjamin Weil vs: UNITED STATES OF MEXICO. Testimony taken before Geo. W. Christy, Notary Public, Fe- bruary 17, 1872. Samuel B. Schackelford being first duly swoon deposes and says. I am 36 years of age. I was born in Marengo County, State of Alabama. I reside at present in the City of New-Orleans and my present occupation is that of a merchant. I am not in any manner interested in the within claim either directly or in- directly, nor am I agent or attorney of claimant or of any per- son having an interest in the claim. In the months of August, September and October of the year 1864, I was in the Republic of Mexico, acting as Agent of the Confederate Government in the clothing Department on the Trans-Mississippi Department of said Government. I had previously known the complainant Ben- jamin Weil, well, I knew him to be a man of large means, and dealing extensively in cotton, I was present at Alleyton, Texas about the 1^^ Sept, 1864 when the complainant Benjamin Weil, was taking out a large train, loaded with cotton as 1 understood to pene^ trate the Territory of the United States of Mexico toward Lare- do, The train was loaded with or had on board about Tow thousand (2,000) bales of cotton to the best of my observation and the general reports at the time, and I had An opportunity 12 of knowing, as I was in company and contact with his clerks and agent daily. Saw Bills of Lading signed in name of Benja- min Weil for cotton, saw drafts paid hy Benjamin Weil drawn on him for cotton, also orders, bill &c. Saw bills paid for wag gons, labor, transportation &c., connected with the cotton, in name of said Benjamin Weil, and generally saw that all the de- tails of the business connected with said cotton, was carried on and conducted in the name of said complainant Benjamin Weil, &c., &c. Said complainant at the time, being the larjest opera- tor in cotton in that section of the country. He was the free owner and master of the cotton train and expedition. I do not know the exact value of the cotton but it was generally sup- posed to be worth half a million of dollars or thereabouts and I so regarded it at the time. I think the price of cotton at the time was somewhere between 30&40 cents per pound, nearer 4-0 than SO, The bales of cotton were larger than the average size and accord- ing to the best of my recollection from the Bill of Lading would average about 500 pounds in weight. My business as agent of the confederate Government called me from time to time both^to Texas and the United-States of Mexico. After hav- ing left Alleyton I went over into Mexico in the prosecution of my business as agent aforesaid, where I again met complainant Ben- jamin Weirs said train, loaded with cotton, on the road near La- redo in Mexico. This was ^omOiVfhQrQ hetwen the 10^^ and 25^^ of September 1864. I camped with the_train and the next day af- ter I joined it, the train and its contents was seized and taken presses sion of by an armed force under General Cortinas^ by vio- lence. The complainant Benjamin Weil made demand in person and through his agents and attorneys for the return of the cotton, which was refused, but the answer to his demand was that the Government of the United-States of Mexico was good for the cotton or its value. The complainant Benjamin Weil has often 13 requested me to give my testimony in this case, but my absen- ce from the city and necessity for travelling in my ^business has prevented me from complying with his requset until this time. Samuel B. Schackelford. Sworn to and subscribed before me this 17^^ Febr. 1872. George W. Christy, Not. Pub. George D. Hite being first duly sworn, deposes and says: I am 35 years of age. I was born in Richmond, Virginia, at present I reside in New-Orleans and my occupation is that of a merchant, I am not in any manner interested in the within claim either directly or indirectly, nor am I agent or attorney of claimant or of any person having an interest in said claim. / have been a merchant in New-Orleans for the last 15 yearsy except during the war. During the war 1 was in Texas and the Trans-Mississip- pi Department ) during the year 1864 I was employed by the complainant Benjamin Weil as his agent to purchase and procure cotton for him in the State of Texas, which I did, paying for the cotton so purchased in gold and greenbacks furnished to me by complainant Benjamin Weil for that purpose ; I also procured cotton for him by trading [it from parties in Texas who were indebted to him and giving them receipts and discharges in full, in the name of said Weil for their indebtednesses to him. Whenever I so purchased and procured cotton, I hired teams and send it to AUaton in Texas, as a Depot or starting point, 14 from when it was to be shipped by trains through the United- States ot Mexico via Matamoros to foreinhg ports, Matamoros being the onlt/ point at which deities could he paid, I purchased and procured the cotton from Planters, who kept no books nor clerks; I kept memoranda of the amount of cotton so purchased and procured and the prices paid for the same as also receipts, but all these memoranda and receipts together with other valuable papers belonging to Mr. Weil, were destroyed at the close of the war by disbanded Texas troops; valuable papers belonging to myself were also so destroyed at the same time. / was in Allaton, Texas, het place of Depot or starting point and assisted in making up the train ivhich was to take complainant Weil's cotton to the United- States of Mexico as aforesaid. The train consisted fully on One hundred and ninety (190) tvagons, averaging Eight (8) inules to each wagon, the mules being small the soil on the black prairies being very stiff and hard, and the sand roads being very deep and heavy. The wagons averaged about ten bales of cotton each; at the least computation (1,900) nineteen hundred hales of cotton were loaded and shipped on the train. The whole cotton belonged to and was paid for by complainant Benjamin Weil he was by far the largest and ivealthiest operator in cotton in the country. 1 was Weir s principal agent in purchasing cotton and superin- tending the getting up of the train and shipping the cotton. I repeat that all the cotton shipped by the train and amounting to at least nineteen hundred bales belonged to and was paid for by complainant Weil. The wagons and mules or the train itself so called was hiredhj Mr. Weil, and was subject to his orders and directions. The cotton as it came into Allaton was overhauled for the purpose of being put in order, and where bales were small I enlarged them bv packing and baling so as to make them weigh over five hundred (500) pounds to the bale. This was done for the convenience of packing and transporta- 15 tion. All of the cotton averaged over Five hundred pounds [500] to the bale, and cotton at that time was worth from Forty five l45 C5.] to Forty eight [48 (?>.] cents per "pound in gold^ irres- pective of classification, Istarted the train, with complainant's cot- ton [amounting to at least 1900 bales] from Allaton in Texas, in its way to the United States of Mexico in May 1864, to the best of my recollection with regard to dates. The train and cot- ton crossed the Rio Grande into the United States of Mexico, about one hundred and sixty miles [160] above Brotvnsville, in the early part of September 1864- That point of crossing was made for the sake of better roads there afforded. / did not travel with the train in Mexico, but went on to Matamoros. Whilst I was in Matamoros the men belonging to the train ^ come into town and announced that the train and cotton had been captured by trops and forces belonging to the liberal or Juarez Government under the command of Cortinas, This same statement was also afterwards made to me by men and officers ** belonging to Cortinas commands and who assisted in capturing the train and cotton. This statement they made to me tohilst I was estill in Matamoros. After the train left Allaton, Te- xas, in May 1864, I left the employ of Mr, Weil, and proceeded directly to Matamoros in Mexico on business of my own as a con- tractor, but as my business called me up the Rio Grande in Sep' tember 1864, whilst so attending to my own business, 1 met said train and cotton at the point where it crossed the Rio Grande 160 miles above Broiunsville, and assisted in crossing it into Mexico. When I first gave my statement or Testimony in this case on the 15*^ day of December 1869, before Geo W. Christy Notary, neither Mr, Weil or his attorney was present, not having been inform^ ed by either Mr, Weil or his atorney upon %vhat points my testis * No names are given, ** No names. 16 mony was desired, I simply made a general statement, without entering into details, but having since learned from the attorney of Mr.Weil, that when I made my first statement he was ignor- ant of my knowledge of facts and details, which he now deems of importance, at his instance, request and summons I now ex- tend my testimony and give this statement in detail. In answer to a question by Weil's attorney, I add that the distance from Allaton, Texas, to the point where the train crossed the Rio Grande is called seven hundred miles. Such a train would hardly average eight miles a day in travel, I repeat that 1 met the train at the point where it crossed the Rio Grande whilst on business of my own. That I assisted at its crossing and immediately left it, proceeding directly to Matamoros on my own business. Geo D. Hite. Sworn to and subscribed before me this 12 March 1872. Geo W. Christy, Not. Pub. Award of the Umpire. In the case of Benjamin Weil vs. Mexico n^ 447 the Umpi- re considers that the proof is amply sufficient that the claimant is a citizen of the United States and he cannot doubt that he is so, and was so at the time of the origin of the claim. The claim arises out of the alleged seizure by troops under General Corti- na of cotton belonging to the claimant, for which no compensa- 17 tion has been granted by the Mexican Government. It is stated that the occurrence took place hetiveen Piedras Negrds and La- redo on the 20^;^ of September 1864. The Umpire considers that the facts put forward by the claim- ant are sufficiently proved, viz: that the'cotton belonged to him; that it was seized and taken h?/ troops belonging to the Mexi^ can Government and mider the command of General Cortina^ that the place at which the seizure took place was hetiven Pic. dras Negras and Laredo, tvhich must therefore have been in one of the Mexican States of Ooahuila and Tamaulipas; and that the cotton, which was avowedly on its way to Matamoros for ex' port was seized or on about the 20^.^' of September 1864. These facts are not disproved by evidence of the part of the defense. The argument of most weight which has been sugges- ted by the latter is that all communication with points occupied by the enemy was forbidden. But there is no proof that any of the territory through which the cotton had passed, or was in- tended to pass, was occupied by the enemies of the Mexican Government. It is true that the States of Ooahuila and Tamau- lipas were under martial law; but that state of things did not justify the Mexican authorities in seizing the goods of private persons and neutrals without giving them compensation; or if they thought it necessary to seize the cotton in order that it might not fall into the hands of, or even pay duty to, the ene- my, they Avere still bound to indemnify its owner. The Umpire has been unable to discover any proclamation or other manifest to by the Mexican Government to the effect that either Ooahui- la or Tamaulipas was ocupied by the enemy, and it is a histori- cal fact that the city of Matamoros was first ocupied by the French forces on the 26*^ of September 1864. The Umpire is, therefore, of opinion that the claimant was committing no illegal act in transporting his cotton through Coa- 18 huila and Tamaulipas with destination to Matamoros on the 20*,^ of September 1864 and that as it was seized by Mexican authorities, for whatever reason it may have been seized, the Mexican Government is bound to indemnify the claimant. The claimant asserts that these were 1914 bales of cotton. The witnesses agree that there were not less than 1900, which latter number the Umpire will therefore adopt. The average weight of each bale is shown to be 600 lbs and the value 35 cents pes lb. But with regard to the value, it must be remembered that the cotton was still a long way from Matamoros when seized and that there is alwvays some risk of damage being done to it during the journey. The Umpire therefore thinks that it will be fairer to put the value at 30 cents the lb. The Umpire therefore awards that there be paid by the Mex- ican Government on account of the abovementioned claim the sum of two hundred and eighty five thousand Mexican gold dollars [$ 285,000] with interest at 6 per cent per annum from the 20*^ of September 1864 to the date of the final award. * (Signed.) Edward Thornton. Washington, October I«* 1875. * The Umpire having declared on the 31st of July 1876 that one decision signed be him in that date was to be considered as the final award in regard to interest allowed, those correspooding to the Weil's case award ammounted to the sum of $ 202,>?10 68 cents and the total awarded to the sum of $ 487810 68 cents. BENJAMIN WEIL. VS. Mexico A. D. DO— 447 Argument on motion for a rehearing When the party who has been condemned to pay the enor- mous amount of half a million of dollars offers to show to the judge who passed sentence on him that he, the judge, has erred in examining the case, said judge, who can only be guided in his decision by justice, equity and the principles of public law, can by no means refuse to take into consideration whatever may be represented to that end. The undersigned, of his own accord and following likewise the instructions received from his Government has refrained from asking revision of certain cases, in which, according to his judg- ment, there Avere sufficient groujids for revising, simply because he did not wish to increase the labors of the Umpire, whose labo- riousness and well known desire to bring to an end the difficult task he so kindly accepted, deserve the greatest consideration from the two Governments concerned in the arbitration. 20 There has been a case for alleged loss of merchandise \_D\in- har & Belknap] in regard to which after the Umpire had given his decision, the undersigned had the opportunity to peruse in the files of another case a document in which the interested par- ty had freely stated, shorty after the occurrence of the fiict, that prior to that very fact, he, claimant had taken out from the place all the goods for the robbery of which he afterwards pre' sented his claim before the commission. The Agent of Mexico nevertheles did not ask for rehearing. Again in another case (Heirs of Schreck) in Avhich the Agent of the United States obtained a rehearing, the undersigned could have asked for a second rehearing on the ground that the acts complained of had been committed by an officer declared to be a rebel by several decision at the time those very acts were per- petrated. The relatively small importance of those two cases, in which, as it appeared, there were sufficient grounds to move for a rehearing, decided the Government of Mexico not to make such a motion, preferring rather to suffer the burden their decisions entailed than to multiply the labors of the Umpire. But in the case of Benjamin Weil where Mexico has been condemned to pay a sum amounting to nearly half a million of dollars, the Government feeling perfectly certain that a reexam- ination of the circunstances of the case, cannot but lead to the discovery of the absolute lack of ground on which to base the claim, believes it would not fulfill an imperious duty to the country, whose interests it represents, should it not employ its best endeavors to obtain reconsideration of the case. Under this impression the Mexican Government has given its instructions to the undersigned, who for his part requests that the Umpire should be pleased to peruse carefully this ar- 21 gument, and to weigh Avith his characteristic rectitude and im- partiality all the reasons it contains. The sum of $ 487.810 68 cents awarded in favor of the inte- rested parties in this claim, adding the interests up to the 31®*^ of next July, date in which the Umpire can mako his final award, is indeed a very large sum for a country like Mexico, im- poverished by mote than half a century of civil and forcing Wars, and which cannot stand an increase in her taxes without retarding, at least, her regeneration, just now in its inception. The undersigned by no means pretends that this considera- tion alone should decide the Umpire's mind to revoke the de- cision we are referring to. Although it must of course go a great way towards in inclining his mind to take into considera- tion the reasons I am about to offer with this object. It certainly matters little or mothing that Mexico should have to impose on itself extraordinary sacrifices and even to renounce all hopes of its prosperity, in order to cover a debt; but undoubted- ly the larger the debt, the more plain and unquestionable must be the justice of condemning her to its payment. The undersigned therefore again requests with all due res- pect that the Umpire should examine the reasons he will set forth, because those reasons tend to show that through error a debt has been considered as just which not being so, will have to weigh on a country to which it will be enormously onerous. It has been alleged in this case that 1914 bales of cotton be- longing to Benjamin Weil, starting from Texas to Matamoros in the Republic of Mexico for exportation, were seized by the troops of that country under the command of General Cortina on the 20^^' of September, 1864 between Piedras Negras and Laredo. The Umpire has considered the case as one of expropriation of goods belonging to neutrals, without a corresponding indem- nification. 22 The points of fact are as follows : 1 — Whether there ever was on the 20*^ of September 1864 cargo of 1914 or 1900 bales of cotton belonging to Benjamin Weil between Piedras Negras and Laredo. 2 — Whether any troops of the Mexican Government belong- ing to the command of General Cortina did seize said cargo. As to the points of law, they seem to be -the. following: 1 — Admitting said facts, was the act claimed legal and justi- fiable ? 2 — Is it the duty of the Mexican Government to indemnify Weil, for the seizure of the cotton ? 3— Has said Government refused to fullfill such a duty, denv- ing the indemnification demanded of it? The undersigned cannot comprehend why, when the v^ues- tion of the responsability of a Government for certain facts is at stake, the same proof as to these facts should not be required as is required when the responsability attaches to a private in dividual. In one case as well as in the other, we can only admit satis- factory evidence on the foilowing points: A. — How and from whom did claimant acquire the cotton? B. — Who were the owners and conductors of the waggons employed in the transportation? C. — Where and at what date did those waggons cross the Rio Bravo to enter on Mexican territory? D. — At what custom house, if any, were the duties paid, and the permit to introduce into the country or the corresponding guia obtained? B. — What is the name of the Commander or officer who or- dered or even witnessed the seizure of the cotton? 23 F. — What steps, if any, did the interested party take in order sto prove at the time such seizure, to obtain a voucher for it and to request an indemnification? A. As to the first of these points, in lieu of any satisfactory evid- ence which could be no other in this case but the presentation of the books, vouchers and accounts, or, at least, the designation of the parties from whom the property was acquired-we have two testimonies conflicting with each other in material points, viz: the testimony of George S. Hite, in his 5*^ deposition, and that of S. B. Shackelford. The former said-exhibit n*? 10, on the 15*^ of December 1869, — that when the facts in regard to which he deposed took place he resided in Matamoros, Mexico^ and his business was that of a contractor. That in or about the month of September 1864, Weil was resid- ing in Mexico — without designating any particular place — doing business as a meachant or speculator. That deponent knew Weil much — he only knew him — and Weil then had a large amount of cotton. That deponent should Bay that the cotton amounted to about 1900 bales. This same individual who on December 15**" 1869, expressed himself in such a doubtful tone, simply saying that he hnen) Weil at the time referred to, on the 12*^ of March 1872, two 21 years and three months after having subscribed said deposition, said in another — exhibit no. 23 — : "That during the year of 1864 — he was emplot/ed hy \^ qW. as an agent to buy and get cotton for him in the State of Texas, which he did, paying for the cotton he bought in gold and green- hacws which Weil had supplied him with. How can it be reconciled that Hite should be residing in Matamoros in 1864 as a contractor, and during the same year should be employed in making purchases of cotton for Weil in Texas? How is it that Hite in his first deposition should simply say that he knew Weil in the year 1864, if it was true that during the same year he was in Weil's employ? How could he have any doubt about the amount of cotton that Weil had, if he himself had bought it? Moreover, Hite, Weil's so-called agent for the purchase of cotton in Texas, does not designate a single one of the parties from whom he purchased, limiting himself to say that they re- sided in Texas — ((from parties in Texas.)) What court in the world would attach the slightest importance to such a doubtful and vague testimony as this is? As to the time Hite made the purchases, he only designates them by the departure of the train from Allaton, for which he assigns the month of Mai/ 1864, ((according to his best belief in regard to dates.)) The other witness on the point we are considering, S. B. Shackelford said (exhibit no 21) on February 17"^ 1872: ((That in the months o^ A.\xg\x^t, September 2iVi^ October 1864, he was the Republic of Mexico in the capacity of Agent of the confederate Government: Tha the was present in Alley town, Texas, about the i'* of Sep- 25 temher, 1864- when Benjamin Weil, the claimant^ was taking out the train loaded with cotton. So far, we immediately find that Shackelford contradicts him- sef and contradicts Hite. If Shackelford was in the Republic of Mexico during the months of August and September, it is a phisical impossibility that on the 1" of September he should have been in Alleyton, which place if, as it appears, is the same that Hite calls Alia- ton, is seven hundred miles distant from the Rio Bravo or Rio Grande, according to Kite's testimony, no 23, But the other contradiction to which we have alluded is still more glaring. Hite says that the train loaded with WeiFs cotton was sent off from Allaton in May^ 1864, Jind Shackelford that it was on the i'* of Septeinher, 1864, that is, about four months later. How can we possibly reconcile this difference of dates on such a material point? Besides this, we notice that nowhere, in the whole deposition of Shackelford, is Hite's name mentioned as agent of Weil, and rather it is given to be understood that said Weil intervened personally in the purchases of cotton, the drawing and paying of draughts &c. &c. But above all, in all the many words by which this individual has swelled his deposition, not once can we find the name of any of the persons from whom the purchases were made, nor any particular circunstance in reference to them. Here is all the evidence that Weil did get the cotton we are referring to: The testimonies of two witnesses which are confflicting in them- selves and conflicting with each other. Two witnesses who according to their depositions, could not 4 26 have been in Allaton and Matamoros at the time when they say the purchases of cotton were made at Allaton or AUeyton. Two witnesses, in a word, who calling themselves eye witnes- ses, do not give the names, nor any particular sign of the persons with whom the valuable transactions they relate were car- ried on. How can a contradictory proof of such vague assertions be required? It would be tantamount to ask for an impossibility, to pretend that it should be proved that no body ever did sell any cotton in Allaton or Alleyton to Benjamin Weil before May or Sep- tember, 1864. To obtain such evidence, it would have been ne- cesary that all and every one who could have sold any cotton at the time, not only in Allaton, but also in other places not designated, where Hite says he made some purchases on Weil's accounnt, should present their books or give their deposition. Is this reasonable? Is it even possible? Evidently not, and the undersigned feels perfectly sure in stating that claimant has not proved where, when and from whom did he get the cotton in question. B. Who were the owners and who the conductors of the wfiggons on which the cotton was shipped? 27 Neither Hite nor Shackelford say a single word about this, but far from it, they contradict each other in regard to the na- ture of the contract entered into for said shipment. In Hite's deposition — exhibit no. 23 — it was originally writ- ten that the train consisting of waggons and mules, belonged to Weil; but these words were stricken out, and ahead of them were written these others: ((that the waggons and mules, or the train, as it is called, had been hired by Weil, and was under his orders and directions.)) Shackelford says that claimant was the only owner and mas- ter of the cotton, of the train and of the expedition. Exhibit no. 21. John Mc Martin says that — exhibit no. 9 —he was riding ac- companying the train; but he does not say that he was the con- ductor, and though he speaks of the teammaster, he does'nt give us his name. One Justice says that he was with the cotton's train at the time of its capture; but he does'nt mention either the name of the conductor or of any of the persons under whose charge it was. This being the case, can it possibly be required that the Go- vernment against whom this claim is brought sould prove that no owner of waggons ever sold or hired to Weil the train on which he might have shipped his cotton, and that no American or Mexican teamster did conduct such train? It would have been necesary to this end to ascertain who all were the owners of waggons in AUaton or Alley ton during the months of May and September 1864 and who were the conduc- tors; and this once accomplished, to get all and every one of them to give their depositions on this particular. This would have been absolutely impossible; whilst on the other hand, should the fact we refer to, be true, nothing would have been easier for claimant than to produce the depositions of 28 the waggon owners or conductors, or to designate them, at least, by their names. Is it likely, is it credible that claimant should not know who were those persons or some of them, at least? In a case similar to tho present, where it was alleged that a robbery of goods and seizure of mules had been committed by troops, under the command of Cortina — James Ford vs. Mexico. no. 851 — the conunissioner of the United States in dismissing the claim, used the folloroing language: ((Thus Ford was robbed of property of the value of $105,000.)) «He never complained of it to the authorities of his own country or of Mexico, but patiently sat down under a loss of that mag- nitude )) ((The largest item consists of the' goods taken at Bagdad in May 1865. The only proof a merchant ivith that capital condes- cends to offer us of such a loss is the ex^parte offidavit of one Hite to the effect that he was his clerk and that he sustained such loss. That is all.)) ^^No invoices, no hooks of account^ no merchants in Bagdad or New Orleans to corroborate, no charter party of a vessel, or hills af lading, only Hitcy* ((When he comes to prove the loss of a train worth $30,000 with eight mules, drivers, train master, &c, &c, he brings in the train master, an accidental looker on and one Townsend who says the stock of goods has been sent on the trains and was captured hetween Bagdad & Matamoros by Cortina.)) It looked strange and unlikely to Mr. Wadsworth that Ford should see impassible his loss of $105,000; that he should not have complained of it neither to the American nor to the Mexi- can authorities; that he should produce no other proof as to the existence of the goods than the ex-parte affidavit of one Hite^ so called clerk of Ford; no invoices, no books af acconut, no tes- 29 timony whatever of the merchants living at the place in which clai- mant said he lived, nor of the place where he made his purcha- ses; no vouchers of freights of the vessels on which he shipped the goods to Bagdad, nothing in a word but Hiies assertion. It seemed likewise strange to Mr. Wadsworth that to prove the seizure of the train that must have been in charge of at least a train master and eight drivers, the only evidence pro- duced was the iQ^iimowyoUhe former, that of an accidental looker- on, and of another fellow who never said, how did he come to know the fact. What shall we say, then, when no voucher at all is presented of the charter of a train said to have been seized, when not a single individual, oiU of a hundred & ninety — instead of nine — has ever declared as to the capture, and when, finally, there is no- thing more than another HitCy who transferring himself, by way of enchantment, from one place to another, at a distance of over 800 miles, and appearing now as a contractor, and now as a simple clerk of Weil, pretends to give his testimony about the principal facts of the case*^ c Where and at what date did the waggons carrying the cotton crossed the Rio Bravo? On this point, decisive in its importance, we have no other data than the pretended testimony of G. Ilite. 30 He says : — exhibit no. 23. ((The train and cotton passed the Rio Grande into the United States of Mexico about — between lines — one hundred and sixty miles — 160 «- above Bronwsville in the earlier part of Septem- ber 1864. )) It appears that at first it was written in the affidavit, both in letters and figure ((sixty milesp) but in must have seemed too small a figure, and a hundred was added thereto. But evidently the person who did that, whoever he may be, never knew the places we refer to, and did not even take the trouble to consult with a map. The undersigned annexes to this argument a map, and in will be seen by it that Laredo is at least seventy five Mexican leagues, or two hundred and twenty five miles distant from Brownville. Hite, and all the witnesses, and even claimant himself say that the capture took place between Piedras Negras and Laredo, on the 20*^ of September 1864; that is, about fifteen days later than the time the waggons, crossed the river, according to Hite. The crossing point then must have been far above Laredo, about three hundred miles up the river, which distance, added to that from Laredo to Brownsville, make a total of over five hundred miles. I It follows, therefore, either that^it is false the train crossed at 160 miles above Brownsville, or that it is false the capture of the cotton took place between Piedras Negras and Laredo on the20"^of September 1864. Hite's affidavit well deserves a special study, in so far as it relates to the^'point we are examining. Following the words just quoted we read: «That point of crosing was made for the sake of better roads there aflforded.» 31 Hite ought to have said what route did the train follpw from Allaton to the Bravo, and how was the crossing of the river accomplished, for although, as it is well known, this river is for- dable at several places, nowhere can it be crossed by waggon?,' which must be crossed over on flat boats. Such places, where they exist have their names; how is it that Hite did not designate the name of the place where the train crossed? ((I did not travel says he with the train in Mexico, but went on to Matamoros.)) ((Whilst I was in Matamoros the men belonging to the train — (who were they? What were their names) — came into town and announced that the train and cotton had been captured by troops and forces belonging to the liberal or Juarez Government under the command of Cortina. This same statement was also made to me by men and officers belonging to Cortina's command and who assisted in capturing the train and cotton — the question suggests itself again: Who were they? What were their names? — this statement they made to me ivhilst Iivas still in Matamoros.)) Whoever may read Kite's affidavit up to this point, will sure- ly be left under the impression that affiant never heard any- thing more about the train from the time it got off from Allaton until the report of its capture was made. But immediately afterwards he says: ((After the train left Allaton, Texas, in May 1864. I left the employ of Mr. Weil and proceeded directly to Matamoros in Mexico on bussiness of my own, as a contractor.)) This paragraph of the affidavit was written with the intention of reconciling Kite's intervention in the purchase and shipping of cotton from Allaton, with the ocupation, which, in his first af- fidavit, he said he had at the time of that purchase in Mata- moros. Is it believed that by simply saying that up to May he wa» in Allaton as Weil's clerk, and after that date, in Matamoros as a contractor, those two conflicting notions have been explained. ((At the time of the happening of the events I am about to re- late. I was residing in Matamoros, Mexico, and my ocupation was that of a contractor. I was well acquainted with him, — Weil — at the time be had a very large amount of cotton. » — Affidavit of December 15f 1859— Exhibit no. 10. nDuring the year 1864 I was employed by the complainant Weil, as his agent &c.)) Affidavit of May 12*^ 1872^Ekhibit no. 23 The year is, therefore, divided in two parts: one, up to May, . during which Hite was emploved by Weil, a circunstance which he did not remember in 1869, but he could recollect in 1872, and the other during which he was a contractor acting on his own account. ((But as my business — he adds — called me up the Rio Grande in September 1864. whilst so attending to mi own business, I met said trainband cotton at the point where it crossed the Rio Grande 160 miles above Brownsville and assisted in crossing it to Mexico.)) In this affidavid likewise the figure 1, at the left hand of the 60, seem to have been written afterwards, as it stands out on the margin [i|^^iV. j&.] Had this statement been made with a knowledge of the localities, instead of a number 1,/oz/r should have been written, thrus avoiding the untimely trip made by Hite from Matamoros to a place whose name he did not want to recall, in order to attend to his own business, which he did not particularize, said trip giving him the opportunity to engage in Weil's affairs, in which he did not remember in 1869 having taken any part whatever, and in which it is clear, he took none before the preparation of this claim. It seems useless to the undersigned to insist that Hite over- 83 throws completely the claim relating the physical impossibility that the train crossed the river at a hundred and sixty miles above Brownsville at the beginning of September 1864, on its way to Matamoros, and that it was captured above Laredo, dis- tant, at least, two hundred and twenty five miles from Mata- moros. D. It has been said at the beginning that the place at which the cotton was introduced on Mexican territory, is a point oi decisive importance in the case. So it is really. Let the concocters of this claim say what they wish, about no duties being collectable in 1864 on cotton introduced into Mexican territory, nobody can reasonably believe that said in- troduction should be allowed to be made at any place whatever and without due notice being given to the revenue officers of that Republic. The ((Ordenanza General de aduanas maritimas y fronterizaB'ft (Articles for the collection of duties at the maritime hn^ frontier custom-houses) of 31'^of January 1856 was in vigor at that date. In said (cOrdenanza)) we find the following enactments: ^Article P The frontier Ports and custom-houses opened to foreign trade are. On the Northern frontier: Matamoros, 5 31 Camargo, Mier, Piedras Negras, Monterey Laredo, Presidio del Norte, Paso del Norte.)) « Article 7*^ — All foreign goods, products and effects introduced by the ports opened to foreign trade, shall pay the following duties.)) ((Numerical order — Cotton. — Fixed rates. 1 — Raw cotton, with or without seed, brute weight, % 1.50 the quintal. Article 10 —Payment of duties ((The duties imposed by this Ordenanza, shall be paid in two installments: one half of them at forty days and the other half at eighty days, counting from the day following the unloading of the vessel. One half of the amounts that correspond to each installment shall he paid at the ports, and the balance at the capital of the Republic.)^ ((The goods introduced by the frontiers shall enjoy for the payment of duties the same privilege of forty days established for the ports.)) ic Article 21. — Any person residing in a foreign country not at war with Mexico, can send merchandize and goods to the Republic, provided they be not prohibited by this ordenama.yt ((The captain of the vessel carrying said goods, has the obli- gation to present a general manifest according to model no. 2. cflhe person or persons sending the goods must form a de- tailed invoice of the same, according to model no. 3.)) ((Immediately after any vessel carrying a cargo of goods shall have anchored, the coiiandante del resguardo, [custom-house of- ficer] shall go on board and demand of the captain the manifest or manifets of all the cargo &c,)» 85 ((Article 23. — Of contrabands. ((Are cases of contraband: ((I. — The clandestine introduction of merchandize by the sea- coasts, ports, rivers or any other place not opened bt/ law to foreign trade. ((2 — The introduction of merchandize by the ports ov frontiers, uncovered by the documents established in this Ordenanza, or at unusual hours, &c. ((3. — The unloading, transfer or transportation of merchandize without previous knowledge of the custom-house officers, or without the formalities established in the proceeding articles. «4 — The transfer of goods into the interior without the proper documents to show they were legally imported, and all the duties established by the tariff, paid. ((Article 26, — In the cases specified in paragraph 1'*, article 23, the penalty shall be o^ confiscation a?id loss of the whole cargo of merchandize, and of the vessels, waggons and mules on which carried. ((2. For paragraph 2*^ of same article, the same penalties as fixed by the 1'* part of this article are imposed. ((3. For the cases determined by the 3^ paragraph of said article 23*^, confiscation and the total loss of the goods is imposed.* Therefore, contrary to the assertions of Weil's witnesses, we have a law which explicitly and verbatim prescribes: aThat foreign goods can only be introduced into the Republic of Mexico, through certain ports 2^ndi frontier custom-houses, ((That the introduction must be made under certain forma- lities. 86 ((That at the same ports or frontier custom-houses of entry one half of the import duties must be paid. ((That the introduction of foreign effects through places not duly authorized for that purpose, without the legal formalities and due knowledge of the corresponding officers, is a contra- band punishable with the penalty ot confiscation and totalloss of the ej^ecis.^) Besides this law, the knowledge and fulfilment of which was obligatory on the part of Weil, the Mexican Government, then at Monterey, at the date in which it was pretended — by Hite, not . by Sackeford — the cotton had left Allaton, issued the following circular: ((Cotton transferred into the interior through the frontier custom-house of Piedras Negras only pays there in the shape of transit duties, one dollar per quintal, in view that the largest portion of it is destined to be sent abroad; but as another portion of it is carried into the interior for the consumption of the national factories, this portion must pay a dollar and a half as established b^ the te Ordenanza,.., Monterey May 17*^ 1864 — Dic- cionario de Legislacion Mexicans — verb, algodon^ vol. 1 '*p. 36*^. Therefore, at the beginning of September 1864, Weil's cotton could only have been introduced into Mexican territory, through the frontier custom-house of Piedras Negras, and paying at that one dollar per quintal, under penalty of confiscation and the total loss of the cargo, which is the penalty established by the Orde- nanza referred to in the circular. The fact sworn to by some witnesses, that the introduction of the cotton was made without touching any custom-house opened to forcing trade, and, consequently, without due knowledge of the corresponding custom-house officers, should it he true, would of itself constitute a manifest infraction of the latv, implyirig con Hscation and the total loss of the cotton,. 37 We have, therefore, on the one hand, that it is not possible that the cargo, supposed to be Weil's property, should have passed from American to Mexican soil, at 160 miles above Brownsville at the beginning of September, 1864, to appear on the 20*^ of the same month and year three hundred miles at least ahov9 Brow?isville; and on the other, that even admitting its possibi- lity, it would not have been lawful. E. When this claim was for the first time initiated on the 10*** of September 186'9, five years after the occurrence which it is jsaid, gave rise to it, claimant stated, that his cotton had been seized and taken from him by Representative forces of the Re- public of Mexico, who at the time were in command of that portion of the country lying between Piedras Negras and Lare- do—Paper no. 4. No designation was then made of such forces, or of the officer under whose command they were. Laredo is the furthest village in the Northwestern part of Ta- maulipas, at a distance of hardly six Mexican leagues from the boundary line with the state of Coahuila. 38 As it was not determined in the memorial, nor has it been stated afterwards whether the alleged capture was made in the State of Coahuila or in that of Tamaulipas, the simple assertion that it was made by the republican troops in command of that portion of the country lying between Piedras Negras and Lare- do, is tantamount to no designation at all. Emily Lanndner in his affidavit of the 15*^ of September 1869, declared having heard that sometime in 1864, Weil lost over a thousand bales of cotton, captured by the forces of the liberal party in 31exico, He does not designate the forces, nor the place where the capture was made — Paper no. 10. Anchus Mc OuUock repeats exactly what Lanndner had declared, only adding that the forces who made the capture belonged to the liberal or Juarez party,- — Paper no. 10. Geo. D. Hite in his testimony of December 16^^ 1869, only said that the cotton was confiscated by the forces of the liberal or Juarez party, between Piedras Negras and Laredo.— Paper no. 10. The so called Justice on February 7^^ 1870, said that the troops who took the cotton claimed to belong to the fori^es under the command of General Cortina. — Paper no. 12. JohnMc. Martin, on July 26*^ 1870, said: that the troops who took posesssion of the cotton were under the immediate command of General Cortina. — Paper no. 9. S. B. Shackelford on February 17-1872, said that the train and its contents were seized near Laredo, by an armed force under General Cortina.^ — Paper no. 21. Finally, Geo. L. Hite, in his last deposition of March 12^ 1872. — Paper no. 23 — said that the train and cotton were cap- tured by troops and forces under General Cortina, and that 89 deponent was told so by soldiers and ofticers who assisted in the capture of the train and cotton. It is seen by this reference of all the testimonies relating to the point we refer to, that at first, the capture was attributed to some undetermined force, but at the end, it was imputed to Cortina, by a single pretended witness: Martin. This testimony, if of any weight, designates Cortina as the author of the act claimed. The decision in the case seems to be based on the same idea, if the undersigned does not misinterpret the following phrase: fcThat it — the cotton — was seized and taken by troops belonging to the Mexican Government and under the command of General Cortina.)) What principally suggests to the undersigned this interpreta- tion, is the fact that the Umpire has established the just rule not to hold any of the two Governments, sued before him, res- ponsible for acts of their respective troops, unless when the commander or officer who authorized, or, at least, witnessed, the act in question, is personally designated. Bearing on this point, the undersigned can cite the following decisions: In the case of the ((Siempre viva Mining Company vs. Mexi- co, no. 98: «But neither he — ^Mr. Leya — nor the old man who was subsequently in charge, nor do any of the witnesses, give detail as to the amount or value of the stores or number of animals said to have been seized, or the names of the queers who semd them.y> In the case of Juan Manuel Silva vs. Mexico no. 92: «But whoever were the persons who destroyed the property, they are insufficiently designated, for no names are given, and 40 the mere appelation of ((revolutionist)) would show that the Mexican Grovernment is not responsible for the losses suffered by the claimant. The Umpire cannot upon mere conjecture con- demn the Mexican Government to pay compensation.)) In the case of (cW. C. Tripler vs. Mexico,)) no. 144: ((There is also as much more evidence that nothing was touched in the house by Orozco*s force, as that it was robbed and destroyed. But if even the latter statement be true, it is not clearly shown by whom the acts were conmitted, or that they were done hy order or in presence of an officer; and if the robbery and destruction were committed by soldiers only, without the order or presence of an officer, the Umpire does not consider that the Mexican Government can be expected or called upon to make compensation for such acts.)) In the case of ((Christian Gatter vs. Mexico, no. 343: ((With regard to the robbery of goods from claimant's store, there is no proof that it was done hy the order, under the control or in presence of any military or other authority. Indeed, the rob- bery was evidently committed by lawless and plundering sol- diers, and however deplorable it may be, it unfortunately hap- pens occasionally in all armies whilst the Governments to which they belong cannot he held responsible for such unauthorised vio- lence.)) In the case of ((Charles C. Haussler, vs. Mexico)) no. 680: cfThe precise date of the occupation of claimant's farm by Mexican troops is not stated; nor is it shown that they were under the control of an officer, or if so, who was that officer. The witness Hartmdn says that (nthe farm was in possession of a mixed force of Mexicans and Indians belonging to the command of General Angel MartineZyTn hut no mention is made of any officer who was in charge of these men.y^ 41 In the case of Jos^ Maria Anaya vs. the United States: ccNo mention is made of any officer^ nor is it shown that an of' ficer was present j or that the plunderers were under the control or co7nmand of an officer,)) The undersigned in citing these decisions, does not pretend to apply them entirely to the case under consideration, but only in so far as to the spirit that prevails in them all, viz: not to make a Government responsible for acts committed hy its troops, when the name of the commander or officer who, at least, authorized them ivith his 2^^'csence is not given.)) Seeing therefore in the decision of Weil's case that the Mexi- can Government is held responsible for the alleged seizure it re- fers to, and that the only name mentioned is that of General Cortina; the undersigned has concluded that Cortina is considered to he the author of the act claimed. This being so, the undersigned caa show in the most conclu- sive manner the impossibility of the fact. General Cortina was in the city of Matamoros on the 20*'^ of September, 1864. In the file of John W. Hanson, no. 760, paper 11, fol. 23, there is an order signed by the General in that city and at that date. The undersigned promises to show another order of the same date, signed also by General Cortina at Matamoros. J3ut leaving this aside, there is b. public documetit, unobjection- able in its character, that places out of any shadow of doubt the fact that on that day, said Cortina was in Matamoros. This document is the official report made by the imperialist General Tomas Mejia to his Government, about the surrender of Matamoros by Cortina on the 26^^ of September, 1 864. It is found in the Diario Oficial of the Empire, corresponding to the 13*^ of October of the same year, a copy of which is annexed 42 hereto, and the undersigned can present the original in the set of said Diarioy now in his hands. Mejia reports to have commenced his movement from Cade- reyta to Matamoros, on the 15*^ of September 1864, and to have received on his way, tJie 23^^ a communication adressed to him h^ Cortina, Military Commander of Matamoros, making inquiries about Mejia's intentions. Mejia continued to move on Matamoros, and he reached this place on the 26*^. Between Matamoros, therefore, and the place where Mejia received the communication, there is a distance that the bearers of the despatch could not have saved in less than two days. In addition, the undersigned can present numerous testimo- nies he also possesses, of persons residing in Matamoros, all of which declare unanimously that General Cortina remained 'permanently in Matamoros from August 24^^ 1864. Amongst those persons, there are two of those commissioned by Cortina to make arrangements whith Mejia about the surren- der of the place: Don Rafael Cervantes and Don Miguel de la Pena. It is evident by what has been said, that it was impossible for Cortina to have seized on the 20^^ of September, a load of cotton between Piedras Negras and Laredo, at two hundred and eighty miles at least from Matamoros, where he was at that date; and, as no other commander or officer is given as author of such capture, its responsibility cannot be imputed to the Mexican Government, To establish this responsibility it does not suffice to say that those who made the capture belonged to the troops under Cor- tina, as it did not suffice in the case of Ilaussler to say that the troops in possession of the farm were under General Angel Mar- 43 tineZi without mentioning the ofiicers who were at the immdiate command of said troops. The very fact that it is not determined whether the capture was made in the state of Coahuila or in that of Tamaulipas, renders it extremely uncertain that the troops whom the deed is attributed to, should belong to the command of Cortina, whose authority did not extend beyond the limits of the last named State. The simple assertion that a force belongs to a Government is not enough to hold that Government responsible for the acts attributed to said force, unless these two points are sctisfacto- rily shown: first, that such a force did really exist at the place named; and, second, that it belonged to the Government who it is claimed, is responsible. In the case of ((Jacob Jarowslowsky vs. Mexico,)) no. 896. the Umpire said: ((The claimant might also have sought and obtained evidence thai a Mexican force was actually at the 'place and at the time stated, and that it seized the goods ^ facts which must have been notorious; hut from Maij 1865, the date of the seizure of his 'property, till March 1870, he does not seem to have made the slightest effort to collect evidence, y> Which is then, in Weirs case, the evidence that there actually was a Mexican force at the place where the cotton was seized, a fact that ought to have been notorious? The omission begins by not designating such place, and it is absolute as to the existence of any force in it. In Jarowslowsky's case, the fact was supposed to have ocurred in May 1865, and it was not until March 1870 that any attempt was ever made to prove it. In Weil's the fact is supposed to have ocurred in May 1865, and the first attempt at any proof was on the 15^^ of 44 December 1869. Three months short of five years in the first case: three months over five years in the latter. And what has been the evidence produced in one case and the other? In the case of Jarowlowsky a witness, Cohen, declares to have intervened in preparing the transportation of the merchandize to the interior of Mexico, giving the number of mules, waggons &c., &c. forming the train, describing the road over which it went and the exact spot at which it is pretended the seizure was made, at ten miles from the Rio Alamo. Another witness Wolf, tvlio was the condiictor c/ ihe train rela- ted also the same details, adding that the force who made the seizure was under the inmediate command of a Colonel, and some other officers. Two other witnesses who said they were drivers on the train Rodriguez and Stevens, also gave details of the event as if they had really witnessed it. Nevertheless, this late and suspicious proof, with great pro- priety, was never considered as sufllcient. We read in the decision: «Two witnesses, wolf and Cohen, and subsequently two others, Dominguez and Stevens allege that the goods and train were seized by Mexican troops between Mier and the Alamo river; but the evidence that these troops realli/ lelonged to the Mexican army does not seem to the Umpire to be sufficient.)) In Weil's case we only have three witnesses who present themselves as eye witnesses of the alleged capture of the cotton. Mc. Martin who does not say wherefrom the train did stard, where did it cross the river, what road did it follow, at what precise point was it seized; and only mentions as the im- mediate commander of the capturing force, General Cortina, who could not have witnessed the seizure. 45 Justice, who does not state either those essential details; and Shackelford, who pretends that the train composed of 190 wag- gons had ran a distance of about seven hundred or more miles, from the 1'* of Septepber 1864, up to the date of the seizure, between the 10^^ and the 25"' of said month and year. He of course, does not describe the road so swiftly made by the train. This evidence was produced on the following dates: Mc Martin's deposition— July 26^'*— 1872. Justice's — Feb. 7^ 1870. Shackelford's deposition— March 12^ 1872. Can it be said that such evidence was more seasonable and satisfactory than that filed in Jarowlowsky's case ? Quite the reverse: as for as the number of the so called eye- witnesses, and the details of their respective declarations, and the time when they were produced are concerned, we find- every advantage on the part of Jarowslowsky's case; and never- theless, his evidence could not deserve any consideration, and very justly, it did not obtain any. . f LiBRAUY P. {CAUFOUNIA. I \ Let us now examine the last point on which, satisfactory evidence should have been produced. What are the steps claimant took to prove in due time the fact of the seizure of his property, to obtain vouchers for it and to ask for compensation? 46 We find no data whatever on these points in the file. In the memorial signed by John J. Key, who styles himself attorney for claimant without pretending even to prove his re- presentation, it was said on the 25*^ of April 1870 — paper no. 11 — that he had often asked compensation of his losses from all ihe Mexican authorities he was able to approach. But neither in that paper nor in any other of the file is a single one of those authorities designed. In the first statement of the case, filed by Weil — paper no. 4 — he said he had often sollicited the release of his property; but could never obtain any satisfaction. And following immediately after those words, we read: «I have never, laid my claim, before either the United States or the Mexican Governments, asking payment thereof.)) In the said case of Jarowslowsky, the decision begins by saying: «The Umpire observes some very remarkable circuustances. The claimant although he alleges that he suffered great losses by the acts of the Mexican officers which were committed in May 1864, never made any representation upon the subject to his own, or to the Mexican Governments for nearly five years afterwards.)) In Weil's case it is said that he suffered a loss even greater tan Jarowslowsky's on the 20*'^ of September 1864, and it was not until September 10*^1869, that for the frist time a vague complaint was presented, five years minus ten days after the occurrence. The only witness who speaks of the demarches of claimant to have his property restored to him, is Shackelford, and he does it in these words: ((That claimant j(?6?r50W«//y and through his agents and attor- neys requested the cotton be restored to him, and this was re- 4T fused; but he was todl that the Government of the United States of Mexico was good for the cotton, or its value.)) Even admitting that some weight should be attached to the dictum of this witness, is there any precision in it with regard to the point under investigation? Where and to whom did Weil make personally the applica- tion Shackelford speaks of? Did he, by chance, witness the seizure? It seems notif Hite, who gives as his place of residence the city of Matamoros, is to be believed. Weil himself has not condescended to say, in the only paper emanating from him, — the statement bearing date of September 10*% 1869, — where was he the day of the seizure of his cotton, although, if we are to understand literally his vague statement, he was present when the ocurrence took place. ((My property,)) he says, ((was taken/rom me.)) On this point therefore, as on many others, we cannot help either disbeliev- ing Hite, or disbelieving Shackelford, as their so called testimo- nies seem to conflict with each other. In regard to the demarches of Weil's agents or attorneys, we want to know, who were those agents? The only individual who comes to invest himself with this character so late as March, 1872, and who in December 1869 had forgotten his investiture, says that he preserved it up to May 1864, a short time after he had made the purchases and shipped the cotton at Allaton. Outside of this, even Hite does not say that he ever took any step to claim Weil's property. In regard to proofs, we have repeatedly remarked that none at all were procured until December 15*^, 1869. From this date forward, not a single document has been pre- sented bearing ou the fact under investigation. 48 The proofs consist in simple affidavits or testimonies received at long distances from the places where the facts ocurred, but not one from those who sold the cotton, from the owners or drivers of the waggons on which the cotton was transported, or from merchants residing at the places through which the train passed. Nothing, as Mr. Wadsworth said in the case of J. Ford, nothing else but Hite and always Hite, In the 60 often cited case of Jarowslowsky, it was alleged that the officer or commander of the troops who made the seizure, issued a receipt; but that it was stolen in Texas with all the papers, relating to the waggons, mules &c. by stragglers of the Confederate troops of that State. The Umpire said: ((But the abscence of proofs which might have been obtained is still more remarkable. II Wolf had been robbed of the re- ceipts for the export duty paid at Matamoros and for the value of the waggons, mules, &c., he could easily have procured du- plicates on his return to Matamoros.)) In the present case there is something still more remarkable. It is pretended that the train did not pass by any custon house of Mexico, and should this be true, it would of itself justify the confiscation of the cotton^ as has been shown; it is also pretended that there were no tvritten vouchers in any of the transactions relating to the purchase of cotton, purchase or charter of not less than 190 waggons and their corresponding number of mules, &c.; but only a simple memorandum kept by Hite, who was lucky enough to go to Texas some time after the event, there to be, in his turn, despoiled, by stragglers also, of his memorandum; but not a word is said about the receipt for the cotton, signed by the commander or officer who made the seizure. In the decision of the case of ((Carles H. Britell vs. Mexico,)) no. 905, the Umpire said: 49 «It seems most extraordinary that in this, as in the oase of Henry C. Boyd, the claimants should neither have taken nor even asJcedfor, as it would appear, ant/ receipts for the property, such as mules, horses, waggons, &c., which was alleged to have been taken from them,y> With these decisions in view the undersigned feels fully authorized to state with perfect security, that in Weil's case, like in the cases of Jarowslowsky, of Brittell, and of Boyd, the abscence of all documentary evidence on such points as the inter- ested party could have collected it, is inexcusable, and that even admitting that it was lost, Weil could and s/iow^t^have repla- ced it in due time. The undersigned can only attribute, therefore, the decision given in Weil's case, to an involuntary misapprehention of its circunstances. We read in said decision : ((These facts are not disproved by evidence on the part of the defense.)) Neither][did the defense file any rebutting evidence in Jarows- lowsky's case. In Weil's case, the undersigned did offer it, and special men- tion is made of this circumstance in his argument before the Umpire. But leaving this aside, it was shwon in the same argument that the facts, ground of the claim, had not been proved, and it is a principle of eternal justice, always prevailing in the rectitude of the Umpire's judgment, that when claimant's proofs are insufficient, the defendant cannot be condemned, even. should he show nothing on his part. «Actore non probante, reus etiamsi nihil prsestiterit, absol- vitur. » 7 60 But there is a circunstance that shows to the undersigned that his said argument, did not deserve the Umpire's full attention. After the words just quoted, we read the following in the decision : ((The argument of most weight which has been suggested by the latter — the defense — is that all communication with points occupied by the enemy was forbidden.)) In the undersigned's argument no great weight was atached to such a suggestion. Mr. Cushing, the first Agent of Mexico, had made it, being undoubtedly under the impression that por- tions of the States of Coahuila, Nuevo-Leon and Tamaulipaa were in the hands of the invading forces and their allies, at the time the occurrence we are referring to, took place. And it was actually so. Saltillo, Monterey and Ciudad Victoria, the capitals of those States were occupied by the French or the Imperialist, and the Boca del Rio or Bagdad, had been occupied since the 22d of August, 1864. But the undersigned did not consider the question at issue from this standpoint. His efforts were directed to show that claimant's proofs were less than insufl&cient, and more than suspicious. Under this impression he did not think it necesary to give to the legal point of the case, all the development that it might have received, had the facts been satisfactorily proved. The undersigned remarked however, that all the witnesses in .the claim testified that the cottonhad not been introduced through any custom house into Mexican territory and, therefore, the act was not lawful on the part of Weil in regard to Mexico; nor was it lawful in regard to the United States the fact of taking a cargo from territory occupied by the Southern rebels. 61 The commisioner of the United States deciding the ease of Geo. B. Cochran vs. Mexico, no. 865 said: «He complains that General Cortina did not allow him to pass into Texas from Matamoros, with a large mule train loaded with goods. » ((This was in August 1864 — in July 1864 the U. S. troops withdrew from Brownsville and left the whole State to the con- federates, excep the port of Brazos Santiago, where a small force was left.)> ((The restraint, then, put on claimant's trade with the rebel territory of the U. S. tvas not an injury for which the Government of thai country can claim here. It was a frindly and beneficial act"" to the U. S. to stop all trads with Texas, only carried in violation of the laws of the United States and the proclama- tion of the President. It was one good deed done hy Cortina.y> It strikes the undersigned that in Weil's case the same reason prevails for not admitting the claim set forth by the Govern- ment of the United States, and on this ground alone, it might- be dismissed. But above all, since the fact on which it is based has been considered as proved, it is absolutely impossible to overlook the palpable, the confessed violation of the fiscal laws of Mexico, a fact of itself impiyng the justification of the act claimed. It is shown that even admitting that the facts occurred just as the witnesses of the claim state them, viz: introducing the cotton in question into Mexican territory without due knowledge of the corresponding custom-huose officiers, without fulfiling the requirements of the law and paying the custom duties estab- lished by tariff; cargo should be confiscated and a total loss to its owner. Neither claimant nor his witnesses have said why was the cotton seized; and, nevertheless, it was for claimant the interest" 62 ed party, to find it out and to enforce all his rights before the proper authorities and in due form of law. The Umpire has declared it so in the following words of his decision in the case of Wilkinson and Montgomery, no. 105. ((The Umpire considers it quite unfustifiahle on the part of Wilkinson and Montgomery's agent that immediately after the seisure of the merchandize he should have abandoned it and should not even have taken the trouble to inquire on what ground the ^eizure was made or of what cause the goods were subsequent- ly confiscated. There seems, likewise, to have been great negli- gence in not ap'plying to the superior authorities^ as, for instance, to the Minister of finance, demanding an investigation.)) It truly goes beyond the limits of credibility that a man should suffer a spoliation of over three hundred thousand dollars without taking any steps whatever to know, at least, the cause of such a proceeding. Was it a penal confiscation? The party interested should, then, have used his rights, if he did not consider it authorized by law. Was it an expropriation for public use? He ought to have ap- plied for some voucher at least, and, in case of denial by the authorities, to have procured some subsidiary proof. The undersigned will refer again to the Umpire's decision in Jarowslowsky's case; ((But even — he says — if it be true that the goods of the claim- ant were seized by Mexican troops, the Umpire considers that the Mexican authorities had,-by the general laws of war, as well by the Mexican law, of August 16, 1863 — the right to con- fiscate them. If the claimant thought that the seizuf^e was illegal, it was for him to present his claim to the Mexican Government, as he certainly might have done, in accordance with the law of November, 19f 1867.y> 53 In order that this part of the decision should suit exactly Weil's case, we need only to change the legal ground, and instead of the general laws of war ^ and the Mexican law of August 16V* 1863, cite ((the universal fiscal latv and the Mexican law of Janua- ry SV 1856)) Can it be said that a seizure made in virtue of accidental su- pervening circumstances, and of the general laws of war, is more justifiable than a seizure emanating from fiscal laws of a per- manent character, the knowledge and observation of which was binding on complaimant? ((The citizens of the two countries respectively)) says article III, of the treaty between Mexico and the United States, (cshall have liberty to come with their cargoes to such places, ports and rivers of the United States of America and of the United Mexican States to which other foreigners are permitted to come,)) that is, to places opened to foreign trade <(but sub- ject always to the laws, usages and statutes of the two countries respectively.)) The undersigned has had an opportunity to see the argument of counsel for claimant before the Umpire, and he deems it prop- er to say a few words in regard to it. It does not contain any analysis of the proofs of the claim, because its counsel well knew that, under analysis, those proofs could deserve no consideration whatever. Counsel do not even men- tion any other testimony but Kite's, taking good care not to make any alusion whatever to that of Shackelford, with wich it is in open contradiction. All their efforts are concentrated in the allegation, that no rebutting evidence was filed in due time. 54 Counsel say the Mexican Government knew of the claiia since March the 8, 1870; and that is incorrect, as it was not until the 8*^ of October of that year that the case was entered on the docket-paper no. 14— and from that date the time to put in rebuttal was to be counted. Up to that date, the proofs filed to base the claim were of such a nature that they required no defensive evidence, as they did not contain any precise data in regard to the circumstances of the case. This is the reason why after the time for filing evi- dence on claimant's part had expired, and it was so declared at his own petition, he still kept filing other proofs up to June 27*^ 1873 paper no. 26. If claimant, therefore, took so much time to complete his evi- dence, a delay in sending the defensive evidence, ought not to be considered strange; especially when the Mexican Govern- ment has explained said delay, stating that at the time the in- vestigation was promoted, there was no competent Judge ni Matamoros to do it. But even admitting that the delay was culpable, is it just that the penalty should be the declaration that the claim is pro- ved, when it is not? Certainly not. If the proofs are not sufficient to convince the mind of the truth of the fact they relate to, it matters little their not having been refuted. Besides, there are in claimant's argument the following as- sertions on points of fact which show the very foundation of the claim to be false: 1. — That the seizure was made by Cortina. ((The train and cotton was seized by Cortina)) pag. 4. 2. — That the train crossed to Mexican territory at 160 miles from Brownsville. 56 3. — That Weil, after finishing his arrangement in AUaton, left por Matamoros leaving an agent there. — Page 5. 5. — That the country was in a state of commotion on account of the war. Ibid. 6.— That claimant, being a subject of the de facto government of the Confederacy, could not have applied [for protection to the government of the United States. 7. — That he could neither apply to the Mexican authorities, because at the time of the occurrence they did not exist. The following conclusions are then drawn: 1. — That the cotton belonged to Weil. It would have been necesary first to show that such cotton had really exited, 2. — That Weirs trade was not unlawful nor in violation of the law of Mexico. It has already been shown that it was. 3. — That admiting it to be so, tlio seizure ought to have beeu put on trial. Suppossing it possible, bearing in mind the state of commotion of the country, as described by the allegators; it was for Weil, or his agents to promote the trial. 4. — That there is no law in Mexico authorizing the army of- ficers to take private property. Therefore, if those who made the seizure had no authoriza- tion, the Mexican Government is not responsible for it, and said officers committed a crime for which claimant might have pur- sued them criminally. 5. — That the facts of the seizure and expropiation are con- clusively proved by unobjectionable testimonies. The undersigned has proved the impossibility of those facts. What is phisically impossible, cannot be conclusively proved* 66 6. — That the convention of July 4*^, 1868, released the Ame- ricans from the obligation of using the remedy granted to them by the Mexican law of November 19*^ 1867, and if their claims are not attended now by the Commission, they could never be presented afterwards to the Mexican Government. The first part of this assertion is incorrect, because the con- vention only submitted to arbitration claims for injuries*, and when the injuries can onli/ consist in the circunstance that certain complaints were not attended to, when the acts which gave rise to them were entirely unknown to the Mexican Government and are moreaver justifiable by law, as it happens in WeiFs case in which the regulations of the Maritime and frontier custom-houses were clearly violated; the convention, far from dispensing with the application of the remedy alluded to, has made it indispensable in order that the claim might be attended. As to the second part of the assertion, it is true, but then claimant would well deserve the penalty, for his incredible neg- lect. As an excuse for this neglect, it is said that there was no authority to whom claimant might present his complaint; but this is notoriously false. It is said that claimant was in Matamoros when the report reached there of the seizure of his cotton. We have already seen that it could not have been Cortina who made the capture; but even admmitting that he was the captor, Cortina and all his forces surrendered to the Empire in September 26^^ 1864. It is not to be believed that at this day Weil's cotton should have entirely disappeared. To no-body better than to the imperialist General Mejia, for whose Government the Southern Confederay professed vey warm sympathies,could Weil have presented his complaint. He would "S^' 0«* THK ^r^" then, either have recovered all his c^jp^ or, at least^ Myre left some written evidence of its seizure. _ But supposing that he was unable to accomplish this in Mata- moros for some reason or other, which the undersigned cannot imagine even, in view or the position in which Cortina was placed from that date, Weil could, with perfect security, have produced his proofs in Brownsville, opposite Matamoros. Why did'nt he do it so? Why has'nt he produced any written document whatever of that time? Counsel for claimant say that documents only constitute a complementary evidence: that the principal evidence consists in the affidavits of witnesses, produced here and there, many years after the event took place. The undersigned's opinion, and if he is not mistaken, the Um- pire's also, go the other way. It is not as easy to forge a document of eight or ten years date, as it is to obtain one or more affidavits; or rather, that is impossible, this, excedingly facile. It is stated in the brief that the U. S. Court of claims awarded one million of dollars to a house in Liverpool for cotton seized during the war by American authorities, when the evidence in chief of the ownership of the cotton, consisted in the testimony of one witness and his acts; if this is so, the undersigned will say that testimony, and the other less principal proofs might have been of such a character, as to have been deemed sufficient by said Court, and that it does not appear, nor is it alleged that there were no documentary evidence at all in the case. But leaving this aside, said Court is bound to take that kind of proofs into consideration, however suspicious they may appear to it; whilst this Commission, in point of proofs, is only obliged to follow common sense. The system of proofs to which said Court must submit itself 8 68 has been found so defficient, that the President of the United States in his last message to Congress, said: ((It is to devise some better method of verifying claims against the Government than at present exist through -the court of claims growing out of the late war. Nothing is more certain than that a very large percentage of the amounts passed and paid, are either wholy fraudulent or are far in excess of the real losses sustained. (( The large amount of losses proven — on good tedimony according to existing laws, hy affidavits of fictitious and tmscru- pulous persons — to have been sustained on small farms and plantations are not only far beyond the possible yield of those places for any one year, but, as every one knows who have had experience in tilling the soil, and who has visited the scenes of these spoliations, are in many instances more than the individual claimants were never worth including their personal and real estate.)) Message of the President of the U. S. to Congress. — December 7*^^ 1875. To few witnesses could the epithet of unscrupulous be better applied than to Geo: S. Hite and to Shackelford, whose testi- monies are the main pillars of this claim. As the purpose of this argument is to show the motives that constitute a ground for the revision af the case, the undersigned believes to be sufficient what is heretofore witten, and to con- clude he will respectfully invite the Umpire's attention to the following issue: ((1^^ It is a physical impossibility that the train should have crossed from American into Mexican territory a hundred and sixty miles above Brownsville, bound to Matamoros, and that ten or more days later, it should have been captured at a place between Piedras Negras and Laredo. / I 69 / ^.. ^/i vi^ 2^ Ittslikewisseaph^swalmpossibilitt/ihhtihe&^izuvB^ ^ V have been made by General Cortina, who was ik^MMalnLeros. ^ 7^ . 3^ Admitting as true the confiscation and total loss of ilie. cotton, it would have been justifiable according to the Mexi<5an ^ law, in view of the circunstances of the case. 4^^ If claimant believed he had any right to enforce, he should have deducted it before the superior anthorities and would he be entitled to compensation, he ought to have claimed it from the Mexican Government. The undersigned hopes the Hon. Umpire will examine these points and the others he touches in this argument, and will reconsider the case. Its importance renders this further labor of the Umpire in- dispensable, as if, at any time hereafter, he should be convinced that through error, he had imposed such a heavy burden on the meagre Mexican Treasury, induced by the technical allegations and the fallacious proofs of the parties interested in the claim, he would undoubtedly lament it exceedingly. Can there be any reason why an involuntary error should not be corrected when it is still time to do it? Can it be possible, that even in case the Umpire should be convinced that no cotton was ever seized from Weil by Mexi- can authorities; or, admiting it had been seized, that the seizure was wholy justifiable by law. he should still refuse to modify his decision. The Agent of Mexico cannot believe that the Umpire should act so, when, as it has been said at the beginning, he follows no other rules in his decisions than justice, equity and the princi- ples of public law, and when recall's the case in which the Um- pire believing that he had incurred in error in point of law, had no difficulty in rectifying his decision at the request of the Agent of the United States. 60 The Mexican Government renders due tribute of justice to the impartiality and good faith displayed by the Umpire^ and with this foundation, he hopes that the Umpire will weigh the reasons he has set forth requesting that the decision in this case be revoked. If after taking them into consideration, if after a re-exami- nation of all the circunstances of the act claimed, the Umpire should still believe just that Mexico should pay nearly half a million of dollars involved in this case, be whatever the sacri- fice that the payment may entail, the Government of Mexico and its Agent, will at least have right to expect that those who are posted with the case, especially in Mexico will do justice to the efforts used to obtain it (Signed.) Eleuteuio Avila. Decisions of the Umpire in three cases similar to that of Weil. Hugh Lewis vs. Mexico, no, 653, In the case of Hugh Lewis vs. Mexico, no. 653, the Umpire is of opinion that there is not sufficient evidence to justify an award in favor of the claimant. It is alleged that on a certain day 25 bales of cotton were seized by troops under the coni' mand of General Cortina^ at a place near Eeynosa in the State of Tamaulipas, Mexico. To these facts there are only two witnes- ses. John Delworth declares that at the time of the ocurrence he resaided in Gonzalez County, Texas, which must be about 250 miles from Reynosa, so that though he declares that he knew the facts to which he deposes he can have done so only by hear- say and not for personal acquaintance with them. The Umpire cannot admit the validity of such evidence. There remains, then, but one witness, W™ F. Laird. His tes- timony however is extremely vague. He states that on June 18, 1885 th^ Mmcan liberal forces under the command of General 62 Cortina, at a place near Reynosa forcibly seized and took posses- sion of the cotton in question. He does not say whether Cortina or any other officer ivas actually present at the seizure, nor does he give the name of the place or its distance from Reynosa, The wit- ness adds that he paid duties on the cotton on entering the Mexi- can territory at Reynosa, and received permits which he has mislaid; but no attempt seems to have been made to prove by the Custom House records that these duties were so paid or to obtain duplicates of the permits. Nor does any protest appear to have been made at the time against the alleged act of the Mexican troops. Uper such evidence given by this solitary witness the Um- pire does not consider that the Mexican Government can be condemned to^compensate the claimant, and he, therefore, awards that the claim be dismissed. — Edward Thornton — Washington, Feb. 2, 1876. In the case of William F. Laird vs. Mexico, no. 994 the Um- pire is of opinion that the proofs in support of the claim are not sufficient to justity him in holding the Mexican Government responsible for the losses alleged to have been suffered. It seems to him that it would have been easy, if the claim be well founded to have furnished proof s which would have been much more satis- factory. The cotton was imported into Mexico at Reynosa and it is said to have paid duties there. It must surely have been easy to have obtained from the Custom House at that place 63 a record of the transaction or to prove that it was impossible to obtain it. In the memorial of Laird and Mathin vs. Mexico no. 996, which is connected with this claim, it is stated that the property was seized by a portion of the military forces under Qe- neral Cortina. It must, therefore he inferred that General Cortina tvas not there himself at the time, nor is it stated ivho was the officer in command hy tohose order the acts complained of ivere commited or whether there tvas any official at all. It is incredible that so large a sum of money as $15000 shoud have been paid to General Corti- na or to any of his opicer, zvithout a receipt being obtained for it. Nor it is to be believed that the claimant on his arrival at Matamo- ros shoidd not have laid his complaint before the United States con- sul at that port. It is further to be obseved that the memorial is not signed by the claimant himself but by his attorney who naturally cannot swear of his own knowledge that the facts stated in it are true. In view of the insufficiency of proofs the Umpire awards that the abovementioned claim be dismissed. Washington, Augnst 1, 1876. Edw, Thornton, In the case of William F. Laird and John Mc. Mathi vs. Me- xico, no. 995, which connected with that of William F. Laird vs. Mexico, no. 994, the Umpire refers to the observations made in his decision in the latter case as applicable to the former. 64 It is further to be noted in the present case that it is stated that the train of wagons, mules, &c., was sold at Matamoros. Proof of his sale might certainly have been furnished hy the 'purcha- sers. Yet none is produced. The Umpire, for this, and the reasons given in his decision on no. 994 awards that the abovementioned claim be dismissed. Washington, August 1, 1876. Edward Thornton. BENJAMIN WEIL. VS. Mexico Number 447 Additional remarks to the argument on rehearing. On the 29*^ of January of this year, the undersigned filed an argument, — the perusal of which he most earnestly recom- mend to the Umpire,- — in which it is shown that by the very pa- pers of the file, it appears that the fact, ground of the claim, is a physical impossibility, and that, even admitting it to have oc- curred as related, the confiscation of the cotton in question whould have been justifiable. After having filed said argument, the Umpire has dismissed three cases very similar to Weil's claim, on grounds exactly applicable to it. In the case of Hugh Lewis, no. 653, it was alleged that on June 18*^ 1865, some troops under command of General Cor- tina seized 25 bales of cotton near Reynosa, in the State of Ta- maulipas, Mexico. But the evidence was exceedingly vague, as it did not deter- mine tvhether Cortina or some other officer had been present to 66 the seizure; it did not state the name of the place where said seizure was made, nor express its distance from Reynosa. This is exactly our case: no other circunstances of the captur- ing force are given but that they belonged to the troops under the €omma7id of General Cortina — « under General Cortina,)) — and as to the place of the capture, it has only been said that it was between Piedras Negras and Laredo, without stating at what dis- tance from these places. In the case of Lewis it was alleged that duties had been paid at Reynosa, in order to introduce the cotton, but that the permits had been lost. The decision did not consider this excuse enough to dispense with the presentation of docu- mentary evidence, duplicates of which should have been procured. In Weil's case, it is averred that the cotton had been intro- duced into Mexican territory as contraband) that is, toithout touch* ing at any custom-house, and without procuring any fiscal documents. Is this default more excusable, by chance, than the presentation of custom-house permits? It was also remarked in the decision of the case of Lewis, that it did not appear that any protest had been filed against the alleged act of the Mexican troops, at the time it occurred. The same remark applies in Weil's case. In the case of William F. Laird no. 994, the subject matter was likewise seizure of cotton, attributed to forces ccunder Cor- tina.)) The decision reads: ((It is related that the cotton was seized by a party of the military forces ((under the command of General Cortina.)) idt must, therefore, be inferred, that General Cortina was not present at the act of seizure, and it is not stated who was the oficer in com- mand of the capturing fbrce, or by whose order the act claimed was executed,)) ((It is incredible that tho large sum of % 15,000 should have 67 been paid to General Cortina, or to any of his officers, without obtaining a receipt for it, and, notwithstanding, no receipt has been filed.)) In Weil's case, the value of the property said to have been seized, amounts, if we believe claimant, to over % 300,000-, more than iweniy times $ 15fi00, And still, no receipt either has been filed. The decision in Laird's case, says moreover: alt cannot be believed that claimant on arriving at Matamoros should not have presented his complaint to the United States Consul at that port.)) Neither did Weil ever file, before presenting his claim here, ani/ complaint or protest ivhatever, in regard to the seizure of his immense cargo of cotton. In the decision of the case of W. F. Laird and Jno. M. Mathis, connected with the one just cited, besides reference being made to the remarks heretofore quoted, another is added, viz: that no proof had been produced of a sale alleged to have been made in Ma^ tamoros, when that proof might certainly have been furnished by the purchasers. In Weil's case, it is pretended that not less than 1,914 bales of cotton had been purchased in Alley ton, and no proof what- ever has ever been filed of such an important transaction when it might have been furnished by the vendors. On the very same ground, therefore, by which the abovemen- tioned claims were dismissed, the decision given, in a reverse way, in Weil's case, should now be revoked, rectifying the apre- ciation of the weight of the proofs filed by the interested party. 68 But the fact foundation of the clainij is not any more only doubtful or improbable. The Government of Mexico presents the fullest evidence that it is entirely false, and that the claim is the most stupendous and escandalous fraud ever attempted before this Commission. That evidence — found after the decision had been given — consist in the authentic statement, written and signed by Ben- jamin Weil himself, of all his affairs and transactions from the surrender of New Orleans up to the month of October, 1864; in seventy three original letters from Weil, among which are two dated at Opelousas, the 29^^ of August 1864; one dated at Alexandria, La. the 5*^ of September of the same year; one dated at Shreveport, on the 10^^ of the same month; one at the same place on the 20""^ of September^ 186 J^^ the very day on which, it is alleged, his cotton was seized //•c>'7Z himy between Laredo and Piedras Negras; one dated also at Shreveport on the 22^^ of September; one on the 23^ of the same; one, on the 24*^ of Oc- tober, also at Shreveport; two others on the 6^^ of December at Brownsville; one on the 8^^ of the same month; one on the 12^^; one on the 19^^ and one on the 26^^. In none of these letters and in none of many others, written before and after, does Weil make any allusion whatever to this seizure, notwithstanding that he relates very minutely all his affairs. Benjamin Weil, being then in mercantile partnership with Messrs. Isaac Levy, Max. Levy and Jacob Levy, under the mercantile style of ((Isaac Levy& Co.)) entered into, at Opellou- sas, on the IP' of March, 1863, an agreement with the house of ((Bloch Firnberg & Co.)) forming a new partnership for all kinds of business transactions, under the style of ((Levy Bloch & Co.» The clauses of their contract were the following: all profits and losses were to be divided by halves, and any tiansaction business made by a member of the firm^ at any time or place, 69 during the existence of the partnership, shouli be for the be- nefit of the partnership. The partnership was dissolved on the 15*^ of November, 1866, and the corresponding declaration was duly solemnized on the 19*^ of the ensuing December, without any allusion being made of the pretended loss that has given rise to Weil's claim. The undersigned presents authenticated copies of the deed of partnership and also of its dissolution. On the 16*^ of September, 1863, Max. Levy granted a power af Attorney to S. E. Loeb, to act as Agent in the execution of a contract made by said Levy and Benjamin Weil with the Gov- ernor of the State of Lousiana, to import arms and ammuni- tion and to export cotton; giving him the commission to ship to Mexico, or to any other foreign country, the cotton he would receive, and authorizing him to sign all the documents in the name of Levy and Weil. The undersigned presents the original of this power of At- torney. Many of Weil's letters already mentioned, and letters of the following persons: Max. Levy, Governors More and Allen, of Loussiana; Emory Clapp, Agent of said state; Isaac Levy, J* C. Baldwin, of Alleyton; Bloch; Matt. Barrett, and, in a word, all the original correspondence relating to said contract, and to all the affairs of Weil, is presented by the undersigned; and this correspondence shows that not a single hale of cotton belonging to Weil, or to Weil and Levy, or to ((Levy Boch & Co.)) ivas ever seized on Mexican soil, though a small amount of cotton was seized on American territory, ly order, of a Confederate General* On the 15^^ of September, 1864, Benjamin Weil filed a petition at Shreveport with General E. Kirby Smith, stating that on the 7*^ of January, 1863, he — Weil — had been appointed with his partner Max. Levy, Agents of the State of Louisiana for 70 the exportation of cotton, and the purchasing of stores with the proceeds of its sales; that he, as such Agent, bought fifty hales of cotton in Freestone, Texas, and paid its freight, up to Brown- sville, at the rate of 11 cents per pound, and that by order of General Bee, Military commander of the Rio Grande, it had been seized at Brownsville and ten hales retained notwithstan- ding that he had shown the order authorizing the export of the cotton belonging to the State of Louisiana. Weil asked that he should be compensated of said ten bales of cotton by as many others, placed in Brownsville. He also stated, that on the 18**" of November, 1863. S. E. Loeb, had sent him from Alleyton, Texas, 83 hales of cotton; that the cotton was detained — on account of disease of the ani- mals hauling the train — at a point 10 miles distant from San Antonio, and there Colonel Hutchins had seized half of the cot- ton. He asked that he should be compensated for said 37 bales of cotton so seized. The undersigned also presents this original petition with the report and decision passed on it. The matter it refers to was the topic of several of Weil's letters dated in September, 1864, in which it is mentioned as his most importanty it not his only business. In a letter, dated September 20*^ 1864, he said to S. E. Loeb he had heard that his partner Jenny was in trouble on account of a schooner, but that he — Weil — would not help him, as the other matter pending before General Smith was of more impor* tance since the Governor had promised him that he should be compensated for the bales of cotton the seizure of which cons- tituted his claim, a soon as the cotton office of Texas should deliver to Louisiana a thousand bales belonging to this State. He also said that General Smith took some interest in his case because he was very anxious to get him into Mexico. There is not a single word in this letter, nor in any of the 71 others written both before and after, relating to any cotton he expected by Piedras Negras, nor any other place on the Me- xican territory. Those letters prove moreover, that from May to December, 1864, We9l never was in Matamoros^ where some of his witnesses pretended that he resided, nor on the road from Alleyton to Ma- tamoros; but that he was in Houston, Opelousas, Alexandria and Shreveport, and not until the end of November, in Browns- ville. They also prove that Weil was far from being a merchant doing business on a large scale, as his witnesses pretend, since on May 18^^,|1864, he wrote to Mr. Loeb: «! am not able to send you any goods, as the credit is dead and mone?/ 1 have none.yi As to the authenticity of Weil's letters it is proved by res- pectable witnesses, and should any doubt be cast upon them, it could be dispelled by simply comparing the signatures of those letters, with Weil's signature found in the file. The statement of Benjamin Weil's transactions which is mentioned above, reads as follows: ((Statement of my proceedings since the fall of New Orleans. — In August 1862 Gov. Moore proposed to me to load the Schooner Washington, then a prize and anchred at Lake Carles, I went to work, got the cotton and transportation, but before the cotton reached the lake, the yankees came with a fleet and destroyed the schooner partly. I had to give up this expedition, was naturally in for all expenses. — I next took ^n interest in the schooner Lehman which sailed from Lake Char- les in March, 1863; the vessel landed in Tampico. the super- cargo after taking advances on the cotton, handed her over to another man whom he appointed supercargo, on the Lehman, and himself went with the whole of cotton to England and never returned. The new supercargo after taking in a cargo at 72 the mouth of the Rio Grande, ran into Galveston and disposed of the cargo, and I have never been able to collect one dollar. — About the same time I took an interest in the schooner ((Ceci- liad.» She also ran into Tampico, sold her cargo, inverted the whole amount it medicines, and cotton cards; but was unfortunate- ly captured on her trip in and sold in New Orleans as a prize. — Loaded about the same time a small schooner in Permenton river, but up to date never heard spoken of — no body knows what became of her. — I started for Mexico, and as quick as there, invested all my ready cash in the schooner Star, loaded her with ordnance stores, started her of with Mr. Levy, my partner, as supercargo. She made the trip safe in and out; but on her trip back, she was chased by the yankees, and Mr. Levy set her a fire within a mile of Brazos; she was loaded with powder, shot, percussion caps, spades, axes, &c. — We are interested in the schooners «Hyer and Gibberson,)) bath came in January last, loaded with ammunitions of war and ordnance stores, but up to this day have never been able to get out — After the schooner Star had left the port of Matamoros. 1 remained expecting 50 hales of cotton, the proceeds of which I intended to use as travelling expen- ses to go to Europe, My credit in Europe would have enabled me to purchase any amount of goods for the State of Louisiana. These fifty hales of cotton ivere first seised, forty afterwards released and I ohliged to sell at the low prices of the Matamoros marTtet^ say at 17 cenls per Ih, (*) so that after paying freight, 1 had nothing left worth speaking of Then I send to Mr. Loeb my (there is a spot of ink in this place, seemingly covering the words mgent 21^.))) — Houston for more cotton, who late in the fall starded 87 hales of cotton; the winter being very bard, the cattle died on [*) The award puts the cotton pretended to have been seized— when far distant from Matamoros — at 3j0 cents per lb. n the road, while ia the meanwhile one colonel took one half df mid cotton, and this expedition left me again in debt. Last I got in with Mr. Jenny, encouraged him to jointly take in this stock and you know the remainder, — The schooner ((Deifina)) is still lying in Caloasien river and cannot tell whether she will get out. — I submit this statement to your examination. It wil prove you I have done all I could to forward the interest of the State.— Shereveport. La. October IS 1864.— B. Weil.— New Or- leans, August 5^^ 1876. — I hereby certify that the foregoing is the handwriting and signature of B. Weil. I have seen him write and sign his name very often during the period to which this memorandum relates, s^j from May 1862, as well as after- wards until May 1865. — E. W. Walsey, late private secretary to Governor L. 0. Moore and to Governor W. Allen. — Sworn to and subscribed before me this 5 day of August, 1876.— Th. Buissen, Notory public.)) The undersigned believes that this statement alone, of un- doubtable authenticity is enough to put in a clear light the fraud- ulency of the claim. But he presents in addition a large number of letters from persons connected in business with Weil at the time, viz: 17 letters of Isaac Levy, dated in 1864 and 1865, all on bus- iness, containing intelligence, intructions &c. in regard to affairs in Louisiana, Texas and Mexico, and no reference is ever made in them to any large amount of cotton in Alley ton, nor to any loss by capture of cotton hy Mexican authorities. Letters of Matt. Barrett, dated at Eagle Lake, Texas, as to the hire of animals, &c. This place is not far distant from Al- leyton. Letters of J. C. Baldwin & Co. of Alleyton, Texas, the con- signee and Agents of Benjamin Weil in said place, written on different dates of 1864 and 1865. They contain accounts, aok- 10 74 nowlegment'of receipts of letters, &c.; they refer to the shipment of cotton; its current prices are quoted; the remittance of some goods is asked for, with urgency, &c., without making the slight- est allusion to ihe 1900 bales of cotton. In the letter of Janua- ry 30, 1865, ackuowledgment is made of one delivered by Geo. D. Hite, promising to help him in his undertaking; and this letter shows that this was Hite s first visit to Alleyton. Letters of Max: Levy of 1864, some dated at Houston, and others at Matamoros. In the former, dated in February, he speaks of vessels loaded with cotton, ready to sail. In his letter of July 31'' dated in Matamoros, not a word is said about the 1900 bales of cotton that ought to have been then on their way, as alleged in the claim. In the letters of 6 and 10«* of October, Weil, Loeb and Bloch are spoken of; and no mention is made of the capture of the cotton, which is alleged was made a few days before. Letters of Joseph Bloch of 1864 and 1865. In one bearing date of January 19^^ 1864, it is thought strange that Weil should be in Matamoros when he ought to be in Paris, and the query is propounded:— (ds this the Paris to which he went?)) In a letter dated February 1864 the wish is expressed that Weil should leave Matamoros, where he was doing nothing. In another dated Shreveport, July 9*^ of the same year, Blooh says he saw Weil at that place, and speaking of cotton transactions, not the least reference is made to any load proceeding from Al- leyton. Letters of Gustavo Jenny of 1864 and 1865, dated at Galves- ton, Houston, Alleyton, Matamoros and Navasota. In the letter dated Houston, December 24*^ 1864, and addressed to Loeb, Jenny says that Geo. D, Hite would probably go into the employ of Weil and Jenny, and that hewould 7'each Houston about the middle of January 1865. 76 The undersigned likevise presents sundry papers, receipts of loads of cotton and of other merchandize, which show all the transactions of the different partners of Benjamil Weil, and of the firm of which he was a member, and prove conclusively that neither said jlrm, nor Weil individually ever had any large amount of cotton^ and that he never found himself in a pecunia- ry condition that would enable him to make large purchases of this article. All the cotton he ever received — and that in small amounts — were shipped immediately. Not the slightest mention is made of the one thousand, nine hundred bales of cotton pro- ceeding from Alley ton: nor that a single hale was ever captured by Mexican authorities or forces. The documentary nature of these proofs; their authenticity, — any doubt in regard to which can be dispelled by simply seeing them, — and the circunstance that the Government of Mexico was unable to obtain and present them before Weil's claim was decided; are, undoubtedly sufficient reasons for admiting them now, and for constituting them a ground for revoking the deci- sion passed. A Court of Equity, as this commission is, cannot refuse to re- consider the case, when additional evidence — newly discovered — is presented to it, especially when it is of a documentary cha- racter. Besides the abovementioned proofs of this kind, the under- signed presents the following: Deposition of S. E. Loeb given before Thomas Buisson, a notary in New Orleans. He gives the history of the partnership of which he was agent, and designates Benjamin Weil's partners: he speaks of their pecuniary condition, of the loads of cotton received, from whom, where were they sent to, &c. He specifies the dqte on which Geo: D. Hite entered the employ of Weil and Jeuny: he says, Hite was never in the 76 employ of any of them at any time during the year 1864: that the books, papers &c. of the several firms of which Weil was a part- ner are in existence to day and have never been destroyed. That he never heard of any capture of cotton by Mexican authorities or troops until late, when WeiVs claim was published in the news- papers: that there never was 1,900 bales of cotton in Alley ton, Texas belonging to Weil: that Hite was not WeiFs purchansing agent; that the books and papers of the firms referred to, must be in Opelousas, Louisiana &c. He speaks of the small amount of cotton the partners had in the spring and sumjner of 1864) and mentions the places where deposited: that satisfactory accounts were given of all of said cotton, and he adds that Weil owned no other property outside of the partnership. Deposition of S. Firnberg, authorized by the same notary as the above. He was a partner of the firmaBloch Firnberg & Co,» which was consolidated with that ((Isaac Levy and Co.» under the style of ((Levy Bloch & Co.)) composed of Isaac Levy Ben- jamin V/eil, Matt. Levy and Jacob Levy. None of these part- ners ever did make business transactions on their individual account, al have never heard, he says, of any claim against the Government of Mexico^ and well know that Weil's claim against that Government is fraudulent, At the time of the origin of said claim, I was Weil's partner, and was interested in all the transactions > and in the profits and losses, and remained so, until the disso- lution of the partnership on the 19*^ of December 1865. I had access to the books and papers. The first time I ever heard of such a [claim was through the public pressjy Deposition of Louis Schreck, of August 5*^, 1876 — He was a partner of Gustavo Jenny, and knows Benjamin Weil. He says that Jenny & Co. furnished Weil with goods in order that he might carry his contract with the State of Louisiana into eifeot. ((I helped him, he adds, to deliver said goods to the agent of the 77 State of Louisiana, in the summer of i5(?^. I afterwards returned to Matamoros and was there at the latter part of said year. I never heard that any ootton had been capturedy and certainly would have heard ofit^ had it been true, and had the cotton belonged to Weil, Weil had no resources of his own. All he could manage were facilitated to him by C. F. Jenny, whose power of Attor- ney I had. I recognize Gustavo Jenny's letters that have been shown to me marked E. W. H. in red ink.)» He also recognizes Benjamin Weil's letters. Deposition of R. F. Briton to the effect that Geo: D. Hite, was in Government office in Shreveport during all the year 1864, without leaving that place not even for 30 days consecutively. Deposition of B. L. Breut. He says Hite was in Shreveport, and that in the Spring of 1864, was captain of the steamboat <(Countes,)) after which he served under the order of Governor Allen, and was employed in the office of the Quarter Master of the State of Louisiana, ai know he was in Shreveportyi he adds, (nduring the months of August September an*! October 1864: that he there went in business in partnership with one James Par- sons, who was under the immediate command of colonel Wise. I know J. M. Martin, a pilot on the Colorado River, and con- sider him unworthy of credit. I also knew T. B. Shackelford, a Lieutenant in the Confederate army; he was a sort of a gambler, I do not know his whereabouts.)) Deposition of F. W. Halsey, private Secretary of Governors P. S. Moore and U. W: Allen, from 1860 to 1865. He know Weil and his partner Levy. He heard Weil had a contract with said Governors. By the frequent conversations he had with Weil, he heard that the capital was furnished by Gustave Jenny, or Jenny & Co. He never knew they ev er had, at any time, more cotton than that furnirhed by said Governors. It was very difficult to obtain a permit from the military authorities to 78 export cotton. Permits were necessary for the transportation of cotton. Weil and Jenny did not receive cotton enough to reim- burse themselves, of the goods they had furnished, and Weil brought forth a claim against the State of Louisianna for the ba- lance^ which ivas awarded in his favor. ((Although I had intimate relations with Weil, during these transactions, he never spoke to me of having lost any cotton hi/ way of a capture on the Rio Crande, or of exporting any other cotton than that which he received from Governor Allen or through him. Had he suffiered such a loss I certainly . would have known itjy He identifies the signatures in several letters of Weil, Jenny and other, on which are marked in red ink the licitials E W. H. Deposition of Jack Levy. He identifies the signatures of Isaac Levy, Max Levy and Benjamin Weil. He is Max Levy's brother, and Isaac's Cousin. He knew that said three indivi- duals were partners in the firm of ((Levy, Bloch and Co.» doing business in Mexico, Louisiana and Texas, during the war. Deposition of L. G. Aldrich. He was a captain in the Confe- derate army and adjutant of the General stationed at Browns- ville. He explains the manner in which cotton was exported, by what ports it was done, of the permits necessary to that effect, of the regulations established by the Mexican Govern- ment for the importacion of cotton, &c. He says that prompt intelligence was given as to the acts of the Mexican authorities; that amicable relations existed among the authorities of both sides of the river: that no report was ever made of any capture of cotton, and that it was impossible that 1900 bales of cotton should have been captured by the authorities of Mexico^ without the Head-quar- ters knowing it: Deposition of W. R. Boggs. He was a brigadier General and chief of staff of General E. Kirby Smith, who was in command of the Trans-Mississippi Deparment. He was stationed at Shre- 79 veport in 1863, 1864, and 1865. He knew Geo. D. Hite, and knows that he was in Shreveport during the whole year of 1864, having seen him there from time to time. He never heard of any capture of cotton. «In my capacity,)) he says, «any capture of cotton would have been known to me.)) Deposition of John C. Evins. He was before the war, a cus- tom-house officer of the United States at Laredo, where he remained during all the war and up to 1869. He knows almost every body that live hundreds of miles, up and down the river. He is thoroughly acquainted with the country. There are no crossings jor waggons from Laredo upwards towards Viedras iV^- gras. Duties were always paid to the Mexican Government at the local Custom-houses, The distance between Alleyton and Rio Grande is about 260 miles. There are no ferries betiveen Eagle Pass and Laredo, «/ never heard,)^ he says, of the capture of any cotton at any place of the Rio Grande; a?id none could have taken place without my knowing iL)^ The custom-house officers, on both sides of the river, were very vigilant, / don't believe that any train of 1900 bales of cotton belonging to a single individual ever crossed from Texas into Mexi* CO, and I must add that the capture of such a train, had it taken place on any point of the river, and especially in the neighborhood of Laredo, tvould have been brought into my notice. The report of such a capture would have circulated in Texas, and frightemd all the traders. In September 1864 the roads were full af trains going and coming from Mexico, The rivers are generally overflowing in June and July, and 1 do not believe the Rio Grande isfordable in September; it is only fordable at very few points during all the seasons of the year. Deposition of John C. Ransom. He was a captain in the 80 Quarter Master Department of the Confederate army, and Was stationed at Sau Antonio, Texas, from May \^^ 1864, wjt? to May 1^*^ 1865. He was constantly in close business connections with the contractors and other persons occupied in the transportation of cotton to the Rio Grande.* Never heard of Benjamin WeiL He does not believe it possible that the Mexican authorities could have seized 1900 bales of cotton ^ without the fact coming into his know- ledge. Such a capture would have frightened the owners of cotton, and the persons employed in its transportation. In his opinion there never was a train carrying 1900 bales of cotton. He speaks of the regulations for the exportation of cotton, permits required, &c. The undersigned likewise presents the following document. A letter of E. C. Belling, Judge ot the Federal Distrit Court of Louisiana, showing that Bloch and brothers last April or May, filed before said Court a petition about their failure, which petition was contested because in the list of assets a claim of «Benjamin Weil vs. the Republic of Mexico» for cotton, was fraudulently omitted. The Bloch brothers answered the charge through counsel, saying that when the lists were filed, within the last two years, they knew nothing of said claim. The court gave credence to the Bloch, and they were reinstated. The Mexican Government presents, therefore, evidence, as clear as noon day— light, showing that the claim of Benjamin Weil is the most scandalous fraud ever committed before this Commission; because there is not a single word of truth in the statement of the fact on which it is based. To refuse a revision of the case now when such proof exists, would be to close the eyes voluntarily to evidence, and to sanction knowingly a fraud, outraging justice. The undersigned appeals to the Umpire's sentiments of jus- 81 tice, to his feelings as an honest man, to his sense of probity which has won for him a spotless reputation. Can there be any reason in the world to award a premium on crime? Must the poor Mexican Treasury suffer an enormous burden to the benefit of infamous speculators, just to avoid correcting an involnntary error, when it is yet time to correct it? No, it is not possible that such should be the proceeding of an honest judge, whose only rules of action are truth, justice and equity. [Signed.] Eleuterio AVILA. [Presented, September lOth. 1876. J U jOeclaration of the Umpire in regard to the motions for re-hearing. The Umpire having completed and transmitted to the Com mission his decisions upon all the clainis which have been sub- mitted to him, numbering four hundred and sixty four, has notv ^ 1 On the 29th. January, 1876, the Mexican Agent presented to the Commission his motions for re-hearing 'Jn the cases of Geo. L. Hammeken, n? 158, Benjamin Weil, n? 447, «La Abran mining Co. n? 489, and Thadeus Amat et al, — the bishops of California — n? 493, all vs. Mexico, «which motions were by the Commissionei's ordered to be filed and transmitted to the Umpire for decision)) as the record of the American Secretary read S.- Said motions were transmitted, as ordered, and the aforesaid Secretary received the following letter from the Umpire. wThe Secretary of the United States and Mexican Claims Commis.sion has transmitted to the Umpire on the 5t.h. ult. various motions of the Agents of Mexico and of the United States respectively, having for their object the amendment and modification of certain awards and the rehearing by him of several cases mentioned therein.)) wThe Umpire has already before him a number of cases and will receive several more, which have been or are to be sent to him for decision, by order of the Commis- sioners. He thinks it incumbent upon him to examine and decide upon all the cases be- fore taking into consideration any motions made by the respective Agents, and he would not be justified in delaying his decisions by reason of the aforesaid motions. The con- sideration of claims now before him will occupy several months, whilst the arguments submitted by the Agents in support of the motions abovementioned are of some length and will require much thought and time.» The Umpire feels, therefore, bound to decline even to consider for the present wheth- er the awards and cases in question ought to be amended, modified or re-heard. Af- ter the whole of the cases ordered by the Commissioners to be referred to the Umpire 84 recieved from the Secretary of the Commission motions of the Agents of the U. S. and of Mexico respectively that some of those cases should be reheard. The wording of the Convention of July 4, 1868, by which the Commission was established and which laid down the duties of the Umpire, was to the effect that when the Commissioners should fail to agree in opinion upon any individual claim, they should call to their assistance the Umpire whom they may have agreed to name; and such Umpire, after having examined the evidence adduced for and against the claim, and after having heard, if required, one person on each side on behalf of each Government, on each and every separate claim, and consulted with the Commissioners, shall decide thereupon finally and without appeal. There is also a stipulation in the Convention that the President of the U. S. of America and the President of the Mexican Republic solemnly and sincerely engage to consi- der the decision of the Commissioners conjointly, or of the Um pire, as the case may be, as absolutely final and conclusive upon each claim decided upon by them or him, respectively, and to give full effect to such decisions without any objection, evasion or delay whatsoever. ^ shall have been disposed of, he ivill have no objection to take into consideration any motions lohich may then he made to him by the respective Agents.)) «The Umpire has, therefore, the honour to return the motions above referred to, with the papers connected with them, ani begs to express his hope that the Agents of the Uni- j^ed States and Mexico will not transmit to him any such motions until the whole of the fresh cases ordered by the commissioners to be forwarded to him shall have been dis- posed of. — Edward Thornton— -Washington, March Ist. 187G. [Note by the Mexican Agent]. 2 The 6th. article of the convention says; The High Contracting Parties. . . . further engage that every such claim whether or not the same may have been presented to the notice of, made, preferred, or laid before the said Commission, shall //-om andafter the conclusion of the proceedings of said Commission be considered and treatel as finally settled, barred and thenceforth iuadmis>?ible.)> When the Mexican Agent first presented his motions for rehearing, the proceedings of the Commission had not concluded: [Remark of the Agent of Mexico.] 85 The Umpire understands from the abovemontioned wording that he was called upon to examine and decide upon the claims precisely as they were sent to him and to peruse no more and no fewer documents, statements or testinionies than had been before the Commissioners previously to their having formed their disagreeing opinion, and, further, to hear, if required, one person on each side on behalf of each Grovernment, on each and every separate claim. The Umpire has performed this duty to the best of his ability. It cannot be doubted that he had no right whatever to examine or take into consideration other evidence than that which had already been before the Commissioners, had been examined by them and transmitted to the Umpire. If he had done so, such a course would have been contrary to the dictates of the Conven- tion, and would have been eminently unjust until the opposite side should have had an opportunity of rebutting sucn post- humous evidence. If then it were in the power of the Umpire to re-hear any of the cases which have now been returned to him, he could only re-examine the same documents and evidence, and no more, upon which he has formed his opinions. As he has already examined all these documents and evidence with all the care of wich he is capable, it is not likely that a re-examin- ation of them would tend to alter his opinion. '' The decisions of the Umpire, without his wishes being con- sulted, have generally been made public both here and in Me- xico, It is known that by the Convention they are final and 3 Certainly not, unless the re-examinatipn should be made in a spirit free from all pre- judice. It was under this impression that the Mexican Agent said to the Umpire in his motion for re-hearing the «La Abra)) claim. «And that in case he [the Umpire] condescends to revise, he should not consider the decision as his own work, but rather as if written by an utter stranger, for thus on- ly will he be able to rectify its grounds in an independent and unbiassed manner, and to render a sure judgment in an Rffair that sooner or later must have great publicity and be the object of commentaries.)) [Note of the A. of M.] 86 without appeal. It is not impossible, and indeed it is very prob- able, that some of the claimants, in whose favour awards- have been made, may have been able to obtain, on the credit of these final decisions, advances of money or other values, or may have sold and entirely assigned away to other persons, not pre- viously interested in the claims, the whole amount of the awards. The Umpire is aware that by the law of the United States (Re- vised statutes Sec. 3,477) tranfers and assignments of claims against the United States are null and void unless made after the issuing of a warrant for the payment thereof. But he does not believe that this law comprises claims against Mexico although they may finally be paid through the Treasury of the U. S.; and there is no doubt that what is supposed, on the faith of the Convention, to be a final decision of a claim, would give the claimant a credit of which he would be able and likely to avail himself. It is, therefore, highly probable that the alteration or reversal of a decision might seriously prejudice the interest of other parties besides the claimant, parties who were in no way concerned in the origin of the claim. "* But the Umpire believes that the provisions of the Convention 4 Althougli many observations can be made on this paragraph; the following seem bu f ficient: The revokation or modification of an award can proceed from no other cause than a judgment in a contrary or different way of that taken at first. In other words: from the persuasion that the burden thrown upon the condemned party was not just in the whole or in certain points, and is it perhaps, more in conformity with the equity to sustain an unjust sentence given against a Government— the Government of Mexico— than to pre- judice the interests of persons really or apparently not previously concerned in the claims, and who ventured themselves to eater into speculations upon its result? VYhy should the Mexican Government be less entitled to consideration than some speculators whose existence is doubtful and whose good faith is more doubtful still? Since the transfers or asigoations of the the awards of the Commission against the Go- vernment of the U, S. are null and void, how can it he that the awards of the same Com- mission against Mexico be lawufully transferable? Ought there not to be a reciprocity in all the effects of the convention which created the Commission? [Note by the Mex. Ag.[ 8T debar him from re-hearing cases on which he has already ^decid- ed. By it the decisions are pronounced to be final and without appeal, and the two Governments agree to consider them as ab- solutely final and conclusive, and to give full effect to them without any objection, evasion or delay whatsoever. He believes that in view of these stipulations w^^V^er Government has a right to expect that any of the claims shall be re-heard. In the single case of Schreck no. 768 the Umpire listened to the request of the Agent of the United States to reconsider, because it appeared that there was a law of Mexico ^ wich con- cerned the citizenship of the claimant, to which the Commission ers, of course, had access, but no new evidence was offered, or taken into consideration in that case. ^ In view, therefore, of the abovementioned reasons the Um- pire feels bound to decide that he cannot and ought not to rehear the cases which have been returned to him. This decision covers the cases: N*? 58. Joseph W. Hale vs: Mexico. „ 73. F. W. Latham assignee &. „ 158. George W. Hammeken „ „ 302. J. M. Burnap. „ „ 447. Benjamin Weil. ,t „ 489. La Abra Mining Co. „ ,, 493. Thadeus Amat et al. „ „ 518. R. M. Miller. 5. Th« mexican Constitution, art 30. 6. Neither, in the case of G. L. Hammeken vs. Mexico, and in that of «La Abra,» was any new evidence presented by the Agent of Mexico. Nor was it necesary to take any new evidence into consideration to form the conviction that the fact alleged in the case of B. Weil is physically and morally impossible. The Mexican Agent called the atten- tion of the Umpire upon certain laws, but the Umpire did not find it proper to say any- thing about them, as he did when the quotation was made by the Agent of the Unit«d States. [Note by the mexican Agtat.] 88 N*? 244. Geo. White. „ „ 748. M. del Barco & Roque de Gdrate. „ 295. Augustus E. St. John. „ The ease N*? 776. ((Alfred A, Green vs: Mexico,)) the Umpire thinks it but fair to re-examine, because it is shown that certain evidence which was before the Commissioners, was not transmit- ted to the Umpire with the other documents upon which he made his decision. The Umpire will therefore reconside r this case as far as that evidence is concerned, but not with reference to the fresh arguments which have been submitted by the counsel for the claimant. The motions to re-hear which accompany the above mention- ed cases, are not merely a request to reconsider them, but are a critical review, particularly on the part of the Agent of Mexi- co, of the grounds upon which the Umpire has founded his de- cision. It is argued that they are all ill-founde d and erroneous. This may be the case; the Umpire does not pretend to be infal- lible; but he has decided to the best of his ability and conscience upon the 'papers which have been submitted to him. It is clear that whichever way his decision may have turned, the claimant or defendant could always have foun d arguments to dispute its correctioness and justice; indeed an impartial Um- pire is generally subjected to such criticisms." 7. Indeed any Judge, impartial or partial is subject to criticism, with the only differ- ence that such a criticism shall appear manifestly unfounded when there is no sa- tisfactory reason for it. But independently of the partiality or impartiality of a Judge, heis subject to error, and the Umpire himself professes not to be infallible. The Mex- ican Agent has never made against Sir Edward Thornton the charge of partiality in his briefs and arguments, and on the contrary, he has availed every opportunity to do jus- lice to the fairness and rectitude of judgment shown by the "said Hon, gentleman in many of his decisions. But the Mexican Agent must be allowed to repeat that Sir Ed- ward, could have erred in some of his apreciation. The Agent of Mexico, does not pre- tend, of course, to be infalible. He is undoubtedly as much, or even more, subject to er- ror than the Umpire, and only submitted to him his observations in a candid but in no way offensive manner. (Note by the M. A). 89 In his motions to re-hear, the Agent of Mexico has stated many facts which may be capable of proof, but which have not been proved by the papers submitted to the Umpire.^ He has also shown immense ability in disputing the observations made by the Umpire in support of his decisions, and in examining 'and discussing the merits of the claims with the greatest min- uteness and detail; and the Umpire is painfully impressed with the feeling that he might with fairness have been allowed the advantage of the searching examination of the Agent of Mexico when these claims were first submitted to him, rather than af- ter he had decided upon them. There was at that time better cause for doing so than there is now; for one of the two Commis* sioners had already decided in favour of these claims before they came to the Umpire. The latter is but one of three Judges^ and he would have been glad to have been favoured and assisted by the minute criticism which the Mexican Agent has now bes- towed upon some of these claims.^ 8. The Mexican Agent stated also in iiis motions several facts of decisive importance which did not require any proof, being evident in themselves. Was it Jneccessary, for instance, to prove the physical impossibility of the alleged fact that a train loaded with cotton crossed the Rio Grande 160 miles above Brownsville, on its way to Matamoroi and was captured at three hundred or more miles above Brownsville, — between Piedras Ne- gras and Laredo? [Remark by the Mex. Ag.] 9. The Agent of Mexico does not deserve the commendation made by the Umpire of his ability; but he thinks that the inculpation which follows such a commendation is notmore deserved by him. He always has endeavored in his arguments before the Umpire to present every case as clearly as he was able to understand them, and to discuss — sometimes at a length perhaps greater than the Umpire would find it proper — all the grounds of the opinions rendered by the American Commissioner; but this gentleman in some cases, — as in that of <(La Abra, for instance — did not take the trouble of founding his opinion, and the Agent of Mexico called the attention of the Umpire to this cir- cumstance in his first motion for the re-hearing of said case, by the following remark: The counsel for the claimant asked for and obtained iwice^ extention of time for the presen- tatioh of their arguments, when they had before them the grounds of the opinion contrary to their claim, whilst that favorable to it, which discussion would be the matter for the argument of the defense, had no foundation at all, as the aforesaid counsels themselves had remarked in their argument before the Umpire. » In the abovementioned case, as well as in some others, the Agent of Mexico did'nt 12 90 In the case n^ 489 <(La Abra Mining Co. vs. Mexico,)) the Mexican Agent appeals to authorities, as to the value of ores, who, he states, are at Philadelphia. Why were not the statements of these gentlemen — of whose existence the Umpire was not aware, and to whom he had not access — reduced to evidence and produced before the Commi>ssion?^^ In one case where both the Commissioners had agreed upon a certain portion of the claim, the Agent of Mexico asserts that the Umpire must have approved of their decision, because he did not express his dissent.^^ The Umpire does not accept this know, nor even could guess the grounds of the decision favorable to American claimants until it was given by the Umpire. He, nevertheless, always endeavored to the best of his — unfortunately for him, not immense^ but very limited — ability, to show that the claims were groundless in themselves whenever the American Commisioner gave to the interested parties the chance— &a it was called by him — of being transmitted to the Umpire for decision. — Annotation by the M. A. — 10 Because neither the Mexican Government, nor probably anybody else but claimants could ever have believed that a pile of stone known in Mexico by the name of ((Tepetatew should have been converted, for the benefit of said claimants in valuable ore, for as the Umpire says in his award, there was not sufficient proof , nor indeed such proof as might have been produced about the quantity and quality of the ore extracted from the] mines; because nobody could have foreseen that notwith^anding that, as the Umpire also says, "the idea foi'med even by persons intelligent in the matterw — referring to the witnesses for claimants — of the [quantity of a mass of ore, must necessarily be vague and uncertain and that of its avarage value still more so,n the highest possible value should have been fixed to the so-called ore of the claimants; and, moreover, because even the American Com- missioner did not allow anything to them on this account; so that not only before the Com- missioners rendered their disagreeing opinions, but even when the case was transmitted to the Umpire, there was no reason whatever for producing any evidence in regard to that point. What the Mexican Agent intended to show to the Umpire, not only by the authorized statement ofSr. D, Matiano Barcena, a distinguished professor of Mineralogy, but with reference to the products of the richest mines — those of Nevada, — was that in allowing to the «Abra Co» one hundred thousand dollars for the value of their ore the Umpire allowed them as much, if not more, than the richest mines can produce. [Noteby the M. A.] 11. It was precisely the contrary assertionjthe one which the Agent of Mexico intended to lay down in the following paragraphs of his motion for re-hearing the «Abra» case: Inasmuch as this Commission is aboard, there cannot prevail in it any other vote or opinion than that of tho majority of its members, or, in other words, the Third of these members can only decide such points upon which a disagreement of opinions between the Commissioners had actually occurred. 91 argument; for where the two CommiBsioners are agreed, the Umpire has nothing more to do in the matter, either to ap- prove or to disapprove. In another case the Mexican Agent complains that the Um- pire had awarded more than the United States Commissioner. So that in one case the Agent of Mexico would give the Um- pire the power of overruling the decision agreed upon by both the commissioners/- and in the other he would not allow him to disagree with one of them whose decision was contrary to that of the other .^^ So it has been uaderslood and practiced in all the international Commissions of this kind, and the same understanding and practice has regulated the proceedings of this Com- mision; FOR INSTANCE: In the case of Bernard Turpin vs: Mexico, n? 90 there were two .points for decision; the Commissioners agreed upon one of them, and the Umpire said: «With regard to the second claim it appears that the Commisioners have agreed, the Umpire in not, therefore called upon to say anything about it.n The Mexican Agent's mind was to show that the practice of not touching in the finao decision any point upon which the Commissioners were not in disagreement — which practice [struck the same Agent as being [the proper one — had been followed by the Umpire. [Note by the Mex. Ag.] 12. If there is anything in the motions of the Mexican Agent, that could be taken in that sense, he most solemnly declares that it never was his intention to acknowledge in the Umpire the power of overruling the decision agreed upon by both the Commia sioners. How could he acknowledge such a power when he had just stated that 07ily the vote of the majority could prevail in the Commission? (Note by the Mexican Agent.) 13. It was not the Agent of Mexico but the nature of the Umpire's functions which did not allow him to decide ajiy point not referred to his examination and decision. When one of the Commissioners was of opinion that nothing ought to be awarded to a claim- ant, and the other Commissioner proposed that such claimant should be indemnified with the sum of one thousand dollars, the Umpire could decide, either that nothing was to be paid, or that claimant should receive an indemnification within, or up to the amount fixed 'in the affirmative opinion, but not of a higher sum; "because whatever additional sum the claimant might receive, would emanate from the single vote or opinion of the Umpire; and if, as in the « Abra» case, the Commissioner in favor of the claim had expres- sed the opinion that nothing more should be awarded than .what he especially des ignated, the decision granting something aditional, cannot be considered as a decision of the Commission passed by the vote of its majority, but on the contrary, as given against such vote. Therefore the Agent of Mexico found irregular and improper that the Umpire should have awai'ded something to claimants in the abovemention^d case wprtssly 92 In the abovementioned case no. 489 the Mexican Agent would wish the Umpire to believe that all witnesses for the claimant have perjured themselves, whilst all those for the defense are to be implicitly believed. Unless there had been proof of perjury, the Umpire would not have been justified in refusing evidence to the witnesses on the one side or the other and could only weigh the evidence on each side, and decide to the best of his judgment in whose favour it^inclined. IF PER- JURY CAN STILL BE PROVED BY FURTHER EVIDEN- CE, the Umpire apprehends that there are Courts of Justice in both countries by which perjurers can be tried and convicted, and HE DOUBTS WHETHER THE GOVERNMENT OF EITHER WOULD INSIST UPON THE PAYMENT OF CLAIMS SHOWN TO BE FOUNDED UPON PERJURY. IN THE CASE NO. 447 aBENJ. WEIL VS; MEXICO,)) THE AGENT OF MEXICO HAS PRODUCED CIRCUNSTAN- CIAL EVIDENCE WHICH, if not refuted by the claimant, WOULD CERTAINLY CONTRIBUTE TO THE SUSPICION THAT PERJURY HAS BEEN COMMITTED AND THAT THE WHOLE CLAIM IS A FRAUD. For the reason already given it is not in the power of the Umpire to take that evidence into consideration, BUT IF PERJURY SHALL BE PROVED HEREAFTER, NO ONE WOULD REJOICE MORE THAN THE UMPIRE HIMSELF THAT HIS DECISION SHOULD BE REVERSED AND THAT JUSTICE SHOULD BE DONP]. With regard to the case no. 493 Thadeus Amat et al v.s; Me xico, the Umpire must repeat his regret that the observations made by the Agent of Mexico in his motion to re-hear had not been transmitted to him before he pronounced his decisions and agaimt the opinion of both the Commissioners, thus deciding in the benefit of claimants a point not only unreferred to his decision, but set aside before referring the case. [Note by the Mex. Ag.] that the facts by which he sustains tos^ observatioDslia^not been proved before the Commission. ^* In that jnotion the Agent states that if observations had not been previously made and evidence presented by the defense with regard to the amount of the sum claimed in this case, it was not because the Mexican Government recognized such an amount, but because the previous question was to be decided whether the case by its nature came within the cognizance of the Commission. But the order of the Commission, which was transmitted to the Umpire, was to the effect that Mr. Commissioner Wadsworth being in favour of making an awai:d to the claimant, and Mr. Commissioner Zama- cona being in favour of rejecting the claim, it was referred to the Umpire for his final decision. He was therefore clearly en- titled to suppose that all the observations which the defendant had to make, had been made, and that all the evidence which was in possession of the Mexican Government had been produced- Indeed the Umpire was firmly convinced that it was in- tended that he should finally decide upon the case with such evidence as had been submitted to the Commissioners and was forwarded to him. ^^ 14 The first and principal point discussed in the argument of the Mexican Agent be- fore the Umpire, was that the case was not one of those referred to the Commissioners, and the Umpire did not take this point into consideration. None of the facts by toMch the Mexican Agent sustained his motions for re-hearing in the case of Thadeus Amat et al, need be proved. The award of the Umpire is founded on the erroneous intelligence of a law, and to show this, no facts were necesary, but only to study the wording and spirit of said law in order to make a proper application of the same. The only fact at stake has always been]unquestionable, to wit: that the claim arose out of a transaction of a date prior to the 2nd ofFcbrury^ I84S: the law oiFeb. 8, I842 by wich the Bishop of the Californias was released from the administration of theTious Fund, and the law of October 24th. 1842 by which such properties of the Fund as had actual products, were incorporated into the National Treasury, the Government promising to pay to the same fund [uot^to the afo- resaid Bishsp] interest at six per cent upon the amount of the proceeds of the sale of said properties. [Note by the Ag. of Mex.] 15 There had also been transmitted to the Umpire /or final decision many other cases upon which he only decided that they did not come under the cognizance of the Com- mission. So he did in the case of Treadwell and Co. vs. Mex. n? 149, and in all the case^ 94 If there be an arithmetioal error in one of the calculations which the Umpire has made, as is stated by the Agent of Me- xico at paragraph 66 of his argument dated Sept. 19 1876 there can be no objection to its being corrected and the Umpire will examine the case with that view. The Umpire has been forced into the conclusion that he has no authority to re-hear the abovementioned cases; at the same time he will not admit, but wholly denies, the inference which will generally and naturally be drawn from the observations made by the Agent of Mexico, that any stain can attach to his honour by reason of his refusal to re-hear those claims. ^^ (Signed) Edward Thornton. Washington, Oct. 20 1867.)) Tvhcre the violation of contracts voluntarily entered into was alleged; and so he did also in the case of Mo, Manus. Brothers, vs. Mex n? 348, for forced loans and all other oases of the same cause. In transmitting a case to the Umpire for his decision it would never have been intended to deprive him of the first of his^natural powers: that of examining and deciding wheth- er or not such a case was within the cognizance of the Commission, and whether or not there was in it any injury ^ according to the Convention: (Note by the Ag. of Mex.) 16. The observations to which allusion is made here, are probably the following: «To refuse a revision of the case— that of B. Weil— now that such proof exists would be tantamount to close the eyes to evidence, and to sanction knowingly a fraud, outra- ging justice.)) «The undersigned appeals to the Umpire's sentiments of justifice, to his feelings as an honest man, to his probity which has won for him a spotless reputation.)) Can there be any reason in the world to award a premium on crime? Must the poor Mexican Treasury suflFer an enormous burden to the benefit of infamous speculators, just to avoid correcting an involuntary error, when it is yet time to cor- rect it? No, it is not possible that such should be the proceeding of an honest judge, whoso only rules of action are truth, justice and equity,)) It is seen that the basis of these observations was the understanding that it was timy yet for the Umpire to correct his involuntary errors; and as the Umpire has been of a contrary opinion in regard to that basis, it is to be understood that in refusing the rehear- ings asked for, he did not intend to sanction any fraud; and less so, when he has clearly and enphatically stated in pronouncing his decision upon those^motions, that » »j either 11 1st. American * , , , f >» America 11 nth. swoon, , , , » >i sworn 14 2d. foreinhg , , , > »» foreign 14 nth. het , , , , » »> the 15 4th. Istarted, , , , } )t I started 15 14th. trops , ♦ , , » »j treops 15 20th. estiU , t >> still 17 12th. or on , , , , J >» on or 18 9th. pes , , , , » »♦ per 18 8cl. line of the note: correspooding, > ♦> corresponding 21 6th. mako , , , , 7 tt make 21 7th. & 8th forcing Wars, , , 1 it foreign wars 21 14th. lam , , , t »» he is 21 16th. mothing , , , t tt nothing 22 rith, fullfill, » >> fulfil 22 20th. foilowing , , , t M following 28 2d. sto, , , , , > yt to 24 6th. & 6th; greenbacws, , , > »i greenbacks 24 last Tha the, , , , » » That he 25 6th, phisical , ♦ « » 17 physical 25 29th. & 30th confficting , , , 7 }f conflicting 27 17th. cotton's train , , t }* cotton train 27 21st. BOUld , t , t 1 77 should 28 6th. tho , , , , 7 71 the 80 12th. & lath L. and in willlje seen by it , „ and in it will be seen 31 24th; in May 1864, , > j> in May 1864 j 82 9th. Ekhibit , , , J 11 Exhibit 32 17th. n^i • > > » 1 t» my 32 25th. tbrus , , , » 7 17 thus £REA1?A. 36 lltb. Sackefordj;, , for Shackelford 44 28th. stard , , , » start 46 24th. tan , , , > )* than 46 26th. frist , , , > j» first 49 24th. shwon, , , ?> shown 61 23d. impiying the justlficat ion , >s implying the justification 51 29th. cargo should be , , ,, the cargo should be 62 S 57lb. & 28H] . as well by , , > t} as well as by 65 lajit line on the page, phisically ,, physically 59 20th. when recall's , , if when he recalls 60 11th. haye right , , 5J have a right 08 5th. escandalous, , >> scandalous 76 7 th. purchansing, , > >> purchasing 77 Slbt. furnirhcd , , J» furnished 78 12th- licitials, , , , »» initials 80 26th. sJngte, , , , )> single 87 5th. line of note 6: upon , >' to 89 13th. „ „ 9: counsels , , >> counsel 95 5th. Foreing, , >> Foreign 96 last line and Trord: prodocedings . J> proceedings 99 15tb. to make him, , , >> to give him 102 6th. preased , , »» pleased 102 7th. Keeping , , , »> keeping 102 11th. modifp, , , t » »» modify 102 last line only express , ' »> only to express 103 2d. the accrue dinterest t It the accrued interest 104 20th. having made very a difficult , , J midst >I having made amidst very difficult 106 80th. be half, , , f > »> behalf 110 12th. & 13th . have-bought , f J have bought I^SI^-i-K: ¥-^^<% olaim: fiOF'UABRAMlNGC'lS: NM89 Award by the Umpire of the United States & Hexican Claims Commission j^" MOXpiilOR pHEAftlJfa 1 "i < M- vilFo; TRANSLATION BT J. CARIiOS MEXIA MBXICAI? SECRETARY OF SAID C0HMIS810N m:kxico GOVERNMENT PRINTING OFFICE ^i^ ^ ^^-^4-|<: CLAIM OF "LA ABRA MINING k" VS: MEXICO-No. 489 CL^IM u I m II N'^SO Award liy tlie Oipire of tlie United States & Mexican Clalis Coimlsslon, AMD MOTION FOR REHEARING I'RANSLATION BY J. OARLOS MEXIA MEXICAN SEOEETARY OF SAID COMMISSION IJUNIVKUSITY O] CALlFOUNiA. J GOVERNMENT PRINTING OFFICE m "LA ABRA" IINIE CO. YS. MEXICO Ko 487. AWARD OF THE UMPIRE. With reference to the case of ((La Abra Silver Mining Co. vs- Mexico)) n° 489, the Umpire is fully satisfied and cannot doubt that the Company is entitled to be considered a corporation, or Comi^?irLy of cithens 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 Yorh. 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 ou 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 thera to bring their capital into it and raising up industrial esta- blishments of all kinds. With this view it issued proclamations en- eoutagiDg the immigtation of foreignets and promising them cet« 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 tvere carried to such an extent, that tJiey were finally eompelUd 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 hears 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 Dimas, 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 employers. 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 tvere in danger they resolved to abandon the enterprise. These facts are not in the Umpire's opinion at all refuted or even weakened by the evidence submitted by the defense; on the contrary, he believes 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 effortsin vain,^he appealed, through a lawyer of high character y 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 ivhat else, in presence of such opposition to their efforts, the claimants could do hut 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 capiat 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 diifficult 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 muck surer" comptmsation than prospective gains; the latter are in fact the interest upon the sums invested; the^ may he greater or less, or none at all, and there may even he 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 jSmd. 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 take>5 occasion, however, here to observe that a forced contribution Exacted 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 which is 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 working 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 witnesses 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 tvoidd have been kept in which the dayly extraction of ores woidd have been regularly noted down, and thd^i periodical reports would have been made to the Com- pany at New York, NEITHER BOOKS NOR REPORTS HAVE BEEN PROD UCED, 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* Hon of the claim. He will put it at $100,000. It is possible that it is much less than the real value of the ores; but in the absen- ce of sufficient documentary proof and considering the fact that the expenses of reduction are great and sometimes even mmh 6 greater than is anticipated, he does not think that he would be justified in making a higher award. Neither should interest be allowed on this amount so soon as on the others; for the re- duction of the ores would have taken time, say a year. It is not shown that the Company/ had received any dividens before the period of the forced abandonment of the mines, 2iho\xt March 20^^1868. Neither ought interest to be awarded before that date. The Umpire, therefore, awards that there be paid by the Mexican Government; on account of the abovementioned claim the sum of three hundred and fifty eight thousand seven hundred and ninety one Mexican Gold Dollars and six cents ($ 358.791tVij) with an annual interebt of six per cent from March 20^*" 1868 to the date of the final award, and further the sum of one hun- dred thousand Mexican Gold Dollars ($ 10O,O00t%) with the sa- me interest from March 20*^ 1869 to the said date of the final award. * (Signed) Edw. Thornton. Washington, December 27**^ 1875.)) * The interest amounted to the sum of $ ?24.250,,26 cents, up to the 31«t of July 1876, which date was designated by the Umpire as that of the final award, and conse- quently the whole pum awarded to the claimants was $ 688.041, ,82 cents. A. M. DOCK. NO. 489. "LA ABRA" MINING COMPANY, VS. MEXICO. MOTION OF THE AGENT OP MEXICO FOR A REHEARING, 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^^ 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 R'^public 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. E. — 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. IL 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 being 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. his. — 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 boon 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 more injury than the actual loss of money, on account of the detention of the goods, without which the company could 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 amount 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; and, 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- sarily 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^^ 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 aad be the object of commentaries. 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^^ 1868? The undersigned sustains the negative, for the following rea- sons: 1^^ Because the law of the State of New York of February 17**" 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^ — 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 forcing 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 th^ Uni-: 15 ted States vs. Devan,)) (5 Cranch 57, 61); and the decisions in these cases were followed — though, as we learn from a subsequent case, with great reluctance — in the ((Comercial Bank of Vicks- burg vs. Slocum,)) (14 Peters 60.) The decision was that a corpo- ration could not, in its corporate capactty, he 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 ly, and doing business in a particular State, is to he 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 vjhom 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 ^IsAuiiK 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.w (16 Howard, 314) and applied in the 16 aLafayeite 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 was held that a corporate hody can have no existence heyond the limits of the State or Sovereignty which invests it with its faculties and potvers. It must dwell in the place of its creation.)) 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, ^t 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^^^, 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 tvithin the United States; but refer- red those only who enjoyed all of them in conformihj tvith interna^ tional law, or ivitli the treaties celehrated 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- 3 18 i^enship, 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 ihe 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 21s^ 1870. ^ In the present case, therefore, as in the cases of Jennings, Laughland and Co. no. 374, Rudolph Brach no. 462, Ilayward 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 I The Umpire, dismissing the claim no. 996 of the San Marcial Mining Co., sai«l: ((There is no proof whatever that the persons who constituted the Company and who are the claimants were citizens of the United States.)) 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»^ 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. Wulff, 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 ia the case of Robert M. Couch, no. 234: ((The Umpire presumes however that care will he 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 internal tional 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. NATURE OF THE ENTERPRISE UNDERTAKEN BY THE COMPANY IN MEXICO. The business of this company organized in New York ia 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. Garth, 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 mines, 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 yve 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 Utnpire does not doubt that the Compa.ni/ was subject to great losses, but they were due to the in' portunate state of war lohich prevailed,)) In the case of (cD. 0. Shattuck et all,)) no. 600: ((The Umpire is not surprised that the claimants deem expedient, considering the state of toar 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: alt 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 difficultties cross the miner's path«» 28 K-"'^ 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: a Before organizing the Compant/y 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 Co7nmissioner, 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 ou 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 indivS- crect 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 circunstancea 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 Bartholow and Garth, ccon 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 be 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 di^srespect to the national sovereignty. 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 hy 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'* of the law of Feb. 1'*, 1856, reads: ((AH 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'* and 2"^ of the law of March 14^^ 1842. Article 8^^ of this law, which has not been abrogated, says: ((Should the foreigner, owner of real esta- te, be absent with his family from the Republic for over two 26 years, without obtaining permission from the Government, or should the property be transmitted by inheritance or otherwise to a non'7'esident of the Republicy 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 he Jollowed ivhenever 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 for eing capital. And still, though the Mexican Grovernment very sincerely desired to see laborious foreigners starting useful industries in the country, not a single document can be shown or cxV^c? 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 immuraities, 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 frora^'giving 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. iB D ALLEGED CAUSE OF THE CLAIM. It is generally said, that the authorities of the District where the mines of the company were situated, 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, ((that 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" range 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 80 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^^ Prejudice or ill-will of the authorities against Americans in general, and against the company in particular. 2^ Threats against the company's property, and against the lives of the employees. 3^ False imprisonment of the superintendent. 4th 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*^^ Acts of violence againnt the company's propertj^ and its employees, supported and stimulated by the authorities. 6*^ Frequent seizure by the authorities of the mule-trains of the company, loaded with provisions. 7*^ Spoliation of the company's ores in large amounts. 8*^ The assasination of an employee of the company by the liberal troops — Their name is not mentioned, nor any detail given. 9*^ 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 a trial, so long as that want of sympathy did not pass into acts. 31 To fine a nation because its citizens liarborcvi some fear that some individuals of another country, having already gia- 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- ibusierism 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 (cArco Mining Com pany,)) no. 937 and alluding to the requirements to be fulfilled in presenting claims before this Commission, said: ((The least c\sdma,ut should have done was to have stated /» 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, viz: 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% 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 millioas in 83 it — should abstain ahsohteli/ during two yeavB from taking any step toivards getting the indemnification to which it now pretends to^ he entitled. How did this Company abandon the speculation? George C. Collins, its President ever since October 23^, 1866, has testified that (che 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 Exali. 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 responsahility 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, lut patiently sat down under a loss of that mag- nitude until the 30^^ 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 34 cause of the claim, the Commissioner couhl 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 they 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*^ 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*^, 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 troops 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^^ 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 dc. Let us suppose for a moment that all this was true; what would any man|of common sense have done in ExalFs 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»S ^-^^^ ^^^ ^^st superintendent to the mines, after their abandonment, went to Mazatlan: 2*' that he then had no funds, and 3**' 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 document 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 solliciting 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. 8T E 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 awho 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: honum 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 o^ hatred to the AmeriGans^n^ ihat 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, resided'in 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 products 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 off 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 service 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, pro 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 Alonzo A. Adams — the same individual who went to Durango and Sinaloa to forge proofs in this claim — pretending that he should be indemnified v\ 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 Jcneiv 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 proofr^ to >sas- tain it. . It appears that George C. Collins, the President of the Com- pany, is one of the witnesses considered most respectable, sines 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 a« 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 saying 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 to 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 mlKSchief; 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 ia 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. Ifc was the good luck of claimants, that Adams did not read out loud or publish in Mazatlan, — other testimonies more -im- portant still than PeSa'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 tbeir 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- privedW 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 countr^^ 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 d 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 and 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, w^ 911 — paper n^ 17. «That he knows, 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. 9 44 By this phrase it seems that he meant injuries which might give rise to international claims. M Can it now be said that when he tried to sustain this claim with his testimony, referring to loans and exactions, and difficul- ties caused by the war, he did not declare falsely in the matter? But if all this, notwithstanding, E(dieguren 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 ag^in 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 the 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 comfanies^a and that he never heard that the employees worked for the annex;ation of Mexican territory to the United States,)) 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 Companyj that hQ gave it la terms very unfavor- 45 able to the Company, stating that ((it was composed of Americans who 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 f and paid or owe^ him fees for his 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. Exall, paraphrasing freely this answer, related that Ortiz de Zdrate 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 carrt/ so far his love of truth as to sat/ 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 lawyer 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*^ 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 aamparo,)) 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 min^s 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^^ 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 Exall, 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 Dur.ango 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 infalhble, 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 w^ent to Mexico when fourteen years old and remained there up to 1872, having been a member of the Assembly, Judge of the 1'* 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 examiyied some tvitnessesj) These words of his, are corroborated in many claims in which he appears in part- nership with the XJ. S. Consul for the preparation of proofs. He says that the Governor of the State of Sinaloa General Domingo Rubi, his secretary Don Jos6 D. Martinez, the Judge 'of the 1'^ Instance of Mazatlan, J. Aldreto, 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\y> 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 Jos6 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, hut also from those who suffered the injuries. With this Joimdationf 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 desinterestedness 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? 60 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, &o.)) 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 raexi- 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- 61 tion ofTered in that infttrument 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^^ 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 oit- izens of each that may he found in their respective territorieSy sub- ject to their respective jurisdictions ^ whatever may be their occup- ations, and whether they reside in the country or are transients dc.f &G. 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 62 the protection of the authorities, as if said property was their 6WD3 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 Exall 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, 1S74 said on this very topic: ccThe 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^^ 1874, says: «Soto and the Prefect Marcos Mora — we must not forget the latter*8 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. Aquilino Calderon tried once to work in the Gristo 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, we 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 a manifefirt 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 tepetate 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 fact, 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. Gc, IMPORTANCE OF THE ACTS OF THE LOCAL AUTHORITIES IN REGARD TO THE COMPANY. 'WYi^iih.Q incessant and vexations' annoyances of the employ- yees of the companv by the authorities of Tayotlita and San 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** to the 24*^ of June, the Judge Guadalupe Soto and the Prefect Marcos Mora — the same individual whose testimony this company has filed in evidence — addressed some oommun- 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 66 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 that ExalFs life was in danger? Sole- ly and exclusively Exall'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*^ 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 Exall'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 Exall and the President of the company say, the fact is that Granger did not only remain at the mines, but dis- 67 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: aon 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: 1"* 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 ccLa Candelaria)) and (cBolanos,)) are cited. 2^^ That the mines we are speaking of, were productive only when worked with economy, its ores being smelted at a very reduced cost. 8 3^ 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 0/ hostilities on the 2^ art 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 wagCKS 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^^ A business, with a fair prospect of reaping immense pro- ducts, and having at its disposal sufficient funds to overcome ■Bny difficulty, is abandoned on account of the persecution de- clared by one or two persons invested with local authority. 2^ The business fails because the products are less than the disbursements necessary to obtain them. 69 Is tliib 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? 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 v/as 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 Moras 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 Zdrate 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«^ 1867, and that he accepted deponent b resignation in July of said year. It must be remembered that this is the very same Mdrcos 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 should 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 ^ent in his resigna^ Hon, If we read Chavarria's testimony, we will find that ihere 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, ike most distinguished lawyer in Ihe State of Durangoy also sollicited it in the name of the company. It was denied in both cases. Chavarria told mo that Zdrate was determined to drive ail the 61 American Companies from that part of the country. In 1867, — I believe it was in July, — I applied to Governor Zarate, 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 my 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,)) 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 certainly 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 Exall'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 famished 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 Zdrate 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? J CLAIMANTS DID NOT USE THE JUDICIAL RESOUKCES. — A REMEDY THAT WAS NOT EMPLOYED. The undersigned has heard with great surprise of the theory that when the political authority of a place shows some animad version to a foreigner and the Governor of the State is indif- ferent to the complain made on this accoun t, 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 (he 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^^ 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^asier to the Agent cf the Company than to file his complaint against the authorities of San Dimas and Tayoltita with the District Judge of Durango. u Why should wc 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^*^ 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 just 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, tvith a view to his 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 he 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, » 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 t^e time a Court of appeal at the city of Veracruz, but if this was not the 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 m justice, is certainly Worse than to adaiit 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 why 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 he maniainedhy one Government against another. y^ 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 Topic cannot possihly he taken as proof that he dictated the action of the judges and irihunals of the land.)) 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"^ 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- 67 tained that the want of confidence in the result of their efforts excuses them from applying to said Courts? What other guarantees 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 the 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 eare. . To consider, then, as puerile the 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 case, 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: (df the judge illegally imprisoned the claimant, it tms 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 Grovernment.* ^ In the decision of case 994, «W. L. Laird vs. Mexico) we read: wNor is it to be be ievedthat the claimant on his arrival to Matamoros should not have laid his complaint Before carrying through such an intention he should have done two things, viz; 1'* He should have consulted with the naanagers of the company, and 2^ 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 tollowed? 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 have 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 1866 to 1S64, inviting foreigners to invest their capitals in Mexi- co^ in any kind of industrial ^mr suits, 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 tvithin 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^*^ 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 71 within its territory, that the subordinate authorities will never annoy them, but simply that ihey will enjoy the same resources as the native citizens 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 hy 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, tuould 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, soleli/ 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 in, 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: 1^^ Exall's imprisonment ordered by Judge Nicanor Perez, for alleged contempt to said Judge. 73 2n^ Intimidation that if the laboftWi^4re*flSf^S!a'3>Bp|hird of their wages in money, or some oft^^^afrpangenj^^ym^e with them, the company should vacate the ^^e(ifcayft4y»i^wthe labor- ers to work them. 3*^ Suggestions to the laborers not to work for the company, and intimidation to those who were disposed to work;. 4*^ Threats to Exall. As to the first fact, if we do not pay exclusive attention to Exairs 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 he that the sentence of a judge or Court mu%i he a just one* The strong- est j^oof must he produced to justify a contrary helief, 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 bo disregarded. ExalVs 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 ccLa 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. Moreover; at the beginning of 1868 Exall — as he says — reduced some twenty tons of ore, and got from this operation ^he 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. 76 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: (fThe 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 of 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 Tayotlifca 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 BISi PROSPECTIVE GAINS. — VALUE OP THE MINES. ((MiniDg speculations)) — says 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^^ 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 $17,000 at the beginuiag 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. But 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*^ 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 cos ted. 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 undouhtedly losses in lieu of gains. It is on this ground that interest is granted as safer than pros- pective gains. 79 M WHY INTEREST 18 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, hut that they would have obtained^ at leasty regular profits. 3sr WHY PROFITS ARE NOT AISO GRAi^TED, BESIDES INTEREST. 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 isr BIS: THAT THE GOVERNxMENT OP MEXICO IS NOT CONDEMNED TO PAY 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 aro 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 of 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 Mexico, 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 eer- 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 otbor 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 say anything about it.)) In the decision of the case of Bartolo Hicks, no. 487, we 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 the 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 Umits, 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 claim&nts 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 y 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 being 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 persons, 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 af 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'^, 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, ^ith interest-if it so pleased-from the day oh 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 au intention to designate it by figures taken from the affid- avit of one of the few persons noioriously 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 io 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 $ 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, almost all 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 giood services to the company, and their ahility 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 deffendant: ((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 Chavarria's fees for the verbal p(?tiiion ho 80 made to Governor Ortiz de Zdrate, 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, cmot 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 celehration of the treaty of July 4^^ 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 m speculation of this stamp, in whioh 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 the 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 should 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 husinnes of the company/. Q Forced 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 amouat all loans and taxes paid by the company in Mexico are included. RecourvSe 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 full 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 suppose the epeculation to be, the amount paid by the company to the enemies 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 R TAX ON A TRAIN OF WAGGONS IN TRANSIT. Although when Mexico is condemned to reimburse all amounts paid for loans and taxes, no discrimination is made between those imposed ly 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: ((Once, 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.Guerra 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 QMgo from Mazatlan, a port occupied at the time hy 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 that the goods of the claimant were seized by Mexican 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.yy 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- 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 Maia^ moros was at the time occupied hy 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 instancej) 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 daf?Jr on record about this point than Exall's simple word for it: see his afidavit o^ June IV^, 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 whjit 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: aThe 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,)) 96 But Exall comes afterwards, saying that he extracted $17,000 from twenty tons 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 iji^gr^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» 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: ccl be- lieve that the amount of ores extracted, was a little over a thousand tons, or about seven thousand loads. » John Cole: (d 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 marcos 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 oro extracted. Chavarria believes, ((judging by what he heard from persons well posted.)) — Who were the)^? — ((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 jsix thousand tons of ore! Charles Dahlgren, the Admiral's son, saw the ore of the com-^ 9T 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 aivay 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.y) ((The sixty loads that Guadalupe Soto took and benefitted, with Granger's permmission, did not meet the expenses.)) Bartolo Eodriguez, Ramon Aguirre, Aquilino Calderon, and Eefugio 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 jrroduee a cent. 13 98 Andres Serrano: v-cThe mines have not produced any product- ive ores- Those abandoned by the Americans, are pure tepetate, Petronilo Santos, Leandro Martinez and Pioquinto Nunez: a The minerals extracted are nothing else hut tepetate,y> 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 ahout $5 por ton,)) 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 stiver per load, ((It then benefitted sixty loads, that did not t/ield enough^ even to pat/ the laborers employed in picking the ores,)) Martin Delgado: (d know, because it is of public notoriety, that the company piled up a large amount of minerals that con- tains no silver.)) Miguel Laveaga: (d know, and it is a notorious fact, that they piled up a large amount of tepetate, that contained no gold, nor silver.)) ((A part of this stone was benefitted, and it did not cover the iuages 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: alt is possible that the company's mines may produce from eighty to a hundred loads a month, not of good ores but of tepetate.y> It is a notorious fact that they wont 'pro- duce anything else.)) Nepomuceno Manjarrez: «The Company extracted about there thousand load of stone.)) aln May 1866, Laguel came to fake 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 ia 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 improductive specul- ation should have been given up? TJ. INSUFFICIENCY OF THE EVIDENCE AS TO THE AMOUNT OF ORES ABANDONED. As we have already remarked, it seems that it has been taken for granted that twenty tons of ore produced $17,000 to Exall, lOO 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. -sr 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 hooks 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 pre 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 diffetent 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 ivant of record o^ proceedings of the hoard 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 vsrhen 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? ^^ 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 tvhakver 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 ORES; 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 quatity not being Jcnown^ 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 Exall 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*'' of March of the same year, tvhen the war in Mexico wa8 all over, the legitimate authorities had been reinstated, and when, comequenily , he might expect to obtain an efficacious protection hy applying for it, even to the supreme authority of the Republic, if it was 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 oros; 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 ivhatever 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, wg read: ((The Umpire is unable to make an award, even if the evid- ence justified his doing so, because it is not shotvn what were the number of the cattle in question,')) 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 tvas. Nothing of this sort is done although a mining compam/ is supposed to keep hoohs^ to possess plenty of evidence of the wrongs and to be managed hj 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 sat/s 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 minimun. 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 redaction 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 inbehalf 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 Exall could have entertained the queer notion that the tepetate that existed out of the mines, had been placed there hy the enemies of the Qompany, It is possible, though not probable, that a portion of theaban 14 106 doned ores should produce a little over two dollars, free of cost, per carga'y 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. Jos^ 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 cajled «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 uReally productive mineSyH we read in the Minero Mezicano: «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 89,292 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, 84. The ttConsolidated Virginia)) extracted 64,462 tons: total product $8,862,876: expen- diture, $1,582,596, leaving as net profit $6,680, 280. The ftOphir Co ,» extracted 8,130 tons, producing $S26,075, 03: deducting $176,860 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 mines» 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, wnilst of the other two, one obtained $18,107, 63 and the other $6,340, 58. Still, even the mines of the last named company are considered as really productivey thus placing 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 inrthe same category, since the products of one iousand tont, or less, of its ores^fire estimated at one hundred thous- and dollars. lor TIME THAT MIGHT BE REQUIRED FOR REDUCINa 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 BEFORE THE ABANDONMENT OF THE MINES TOOK PLACE. According to the decision, it has not been shown that the company received any dividends before the 20^^ of March, 1S68. President Collins says: aSaid 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 madein 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, depouent, as already 109 stated, 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*^ 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*^ 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 sifpposed 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 only 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 attentioc, 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 ?5orapany, 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 stri:t conft rmit?/ with the principles of public latv, 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? Ill At some future time, if not to day, the atteutioa 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 hind tvas 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, dc, dc. Neither were certain proclamations and offers to foreigners inviting them to send their capitals to that country, on the existence of which tht 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 in 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, anti granted moreover a considerable sum for the conjestural 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, taking again conscientiously into consider- ation the circumstances of the case, he revoked, modified or confirmed his decision definitely, ^ The public opinion will give its ver edict. Heavens grant that it may reflect all honor to the author of the final decision! [Signed.] Eleuterio Avila. Filed, September 19th. 1876. 1 For the declaration of the Umpire in regard to this motion, see the pamphlet Containing the documents relating to Weil's claim. ERUA-TA.. Page. Line. 1 4 the United States in for: 2 26 injustifiable „ 5 2 whichis.., ,, 6 20 dayly „ 5 27 Still „ 8 26 notwihstanding ,, 9 vexations.... ,, ,, 25 whit , , 10 1 reimbuzsed ,, 12 6 unsufficient „ ,, 8 kep. •. „ ,, 15 y 16 necesarily ,, „ 23 justiable ,, ,, 26 becauce , , ,, 13 9 will be „ 14 9 foreing , ,, 15 5 capactty ,, ,, 8 corporator ,, ,, 26 againts ,, 16 19 makes it is binding ,, ,, 23 citezens or sujects... ,, 17 14 stipulalation, , „ ,, bindinng „ 18 6 onghfc „ „ 14 ot „ ,, 17 others ,, 18 1st line of the note: the ,, 19 82 necesity. ,, 20 2 containging ,, ,, 10 some, ,, 21 15 sights ,, ,, 19 functionnay ,, 22 15 y 16 inportunate ,, ,, 13 deem ,, „ 32 undertaking „ ,, „ difficuHties ,, 15 the United States, in unjustifiable which is daily Still, notwithstanding vexatious with reimbursed insufficient kept necessarily justifiable because will he be foreign capacity corporators against makes it binding citizens or subjects. stipulation binding ought of other the necessity containing some rights functionary unfortunate deemed undertakings difficulties Page Liae 23 15 y 16 indiscreet for; indiscreet 24 5 then ,, tliem 25 24 y 25 possessreal ,, possess real 27 5 foreing ,, foreign 28 4 situated ,, situated „ 22 ill-vill „ ill-will „ 25 Exasperated ,, 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 ,j 22 assasination ,, assassination 32 12 whic hat ,, which at 83 16 responsability .... ,, responsibility 86 22 hostillly „ hostility, 37 24 ever ,, over „ 27 be „ he 39 22 whereupon ,, whereupon 40 80 consul ,, Consul 41 13 groser^' ,, grosser „ 14 claim, ,, claim ,, 31 commonweal ,. common-weal 42 5 y 6 abnegation and that ,, abnegation that 43 15 Spaniard ,, Spaniard „ 26 knows ,, knows 44 4 exactiens „ exactions „ 6 all this, ,, all this i, 9 nimes , ,, mines 46 11 accusser.. ,, accuser „ 14 or owe, „ or owe 45 26 wntruth ,, untruth „ 28 as win , ,, was in „ 32 eye-iwtness ,, eye-witness 46 21 of „ in 49 16 necesity ,, necessity 60 7 havenotdue, ,, have not received due „ 14 aminated ,, animated ), 16 mexicans ,.. ,, Mexicans 51 13 in New York „ in New York, „ 18 mexican ,, Mexican „ 27 Therefore „ Therefore, 63 14 muting ;......, ,, mutiny Page. Line. 53 18 )) 20 it 21 54 28 f> 29 55 32 58 2 )) 5 >> 11 >> 17 59 13 60 20 n 24 }> 30 62 2 64 3 68 note 73 5 75 24 78 14 »> 16 85 27 88 17 »> 29 96 26 y 27 97 3 }} 4 >j 22 »> 26 98 18 >> 3 >> 4 99 9 100 4 101 1 101 7 »j 22 102 19 106 16 »» 24 trough, for witeness ,, eft „ vexations ,, company ,, extrated ,, machinary , „ and ,, note < „ nimes ,, superior Authorities ,, at..< ...•••.••••••. ..I .,••••••........«• ..•»....•••. jf compose ,, Ihe ,. evidence Langhland & 0°, beievedthat 3td pessonally woth costed dividens before not , attorneys witnesses being expert thrwoD , Still the ore permmission worthless, there , there , load , littlee abandomnet totala bscence Managiny explainnig difficultty of the note--10,361, 28 tousand through witness left vexatious company extracted machinery and not mines highest authorities of compare the evidence. Laughland & C.° believed that 3rd personally worth cost dividends before, not attorneys, witnesses being an expert thrown Still, the ore permission worthless. three three loads little abandonment total absence Managing explaining difficulty 103,631, 28 thousand -i^^ -^[>^-m ^ SUPREME COURT OF JUSTICE OF MEXICO SUIT OF "AMPARO" PUT FORWARD BY [rrij \ AGAINST AN ORDEK OF THE TREASURY DE^^lRT^^NT j Of August 29,*1H67, f , which ordered the confiscation of the housg situatW la h-Sa;^^uau i)^_ ' /^^ tion of the housfi situated la k-Sa;^yuauj)„^ ' / •* < ^'^^Qy • 1? 10, of the property or<^, ^ ^ / ^W^ ''^' / ' lOOi -<^ DON JUAN N. ALMONTE ^'M -si Translated from die original fSpaimh hy A. Cksar Diaz. CITY OF MEXICO Oovernment PrintiniL^ Office, in charge of Sabas A. y Mnnpjuia. 1879 — s>-&S ^^ L^.^^'^ SUPREME COURT OF JUSTICE OF MEXICO SUIT OF "AMPARO" PUT FORWARD BY AGAINST AN ORDER OF THE TREASURY DEPARTMENT of August 29, im, which ordered the confiscation of the house situated In « San Juan > Street, n? 10, of the property of DON JUAN N. ALMONTE Translated from the original iS^a^iisk by A. CfisAR Diaz. <>//X/ .\ CITY OF MEXICO Q-overnment Printing Office, in charge of Subas A. y Mungnia. 1879 SUPREME COURT OF JUSTICE FULL ATTENDANCE Documents comprising the principal evidence regarding the Suit ofaAm- paro))^ put forward hy Seftora Dolores Quesada de Almonte, against the Treasury Department, which ordered the confiscation of the house situated in San Juan Street, n. 10. Petition for "Amparo." To THE 1st. District Judge: I, Dolores Quesada de Almonte, as Administratrix of the Intestate of my deceased husband, General Juan N. Almonte, before you, with due respect, state: that by the deeds which I herewith inclose in due form, it is proven that the house marked n? 10 and situated in the 1st. San Juan Street, was acquired by my husband by virtue of the purchase which the latter made of the same from Mr. Nathaniel Davidson, on the twenty - sixth day of August, year one thousand eight hundred and sixty -four. The part which my deceased husband took in the Govern- ment of the Empire, was the cause that my property should 1 The huit of Amparo in Mexico, is a proceeding somewhat similar to the writ of Habeas Corpus of American and British law; except that in the present case, it refers to property and not to individuals, although it may embrace both. fall under the penalties imposed by the Decree of the 16th. of August, 1863, and by the laws which were subsequently promulgated against all who served under the said order of things. Among the aforesaid property was comprised the house situated in the 1st. San Juan Street n? 10, of which proj)erty, Mr. Almonte and we his heirs, have been deprived for some time by order of the Treasury Department, issued in accor- dance with the laws of confiscation and which took from my husband the only patrimony bequeathed to his children in order to insure their support after his demise. The order of the Treasury Department and the laws of confiscation promulgated in the year 1863, violated in the person of Mr. Almonte, and subsequently in those of his heirs, several of the guarantees granted by the Fundamental Code of the Republic, in strict observance of which should ever be all the acts of the authorities emanating from the same as well as those of all the citizens who live under its protection and safeguard. Article 16th. of the Federal Constitution ordains that no person shall be molested either in his domicile, papers, goods or property, unless it be by virtue of a written order issued by the competent authority; and Article 21st. of the same Code establishes that the application of all penalties is an attribute which belongs wholly and exclusively to the judi- cial authority. Let us suppose for a moment that my husband made himself liable to the penalties imposed by the decree of the 16th. of August, 1863 ; that confiscation is tolerated amongst us, and that the authorities who issued the said decree were competent enough to promulgate and enforce new laws. I now ask, without granting that the above suppositions are well founded: can we hold that the Council of Ministers, to whom x^rticle 7th. of the law of August 10th., 1863, gave authority to resolve upon all these questions, was a competent authority to determine upon the same, when the said Council absolutely lacked all judicial functions? Cer- tainly not; because Article 21st., already referred to, provides that the right to impose penalties belongs exclusively to the judicial poAver; and Article 50th. of the Constitution ex- pressly forbids the exercise of the attributes of two powers by any one of the three into which the Federation is di- vided. My arguments are now set forth, under the supposition that confiscation were admitted amongst us: but, even if this were so, that penalty could not be imposed upon Mr. Almonte, until he had been duly tried by the competent Courts, because otherwise he would have been sentenced without a hearing, and this is not admitted by any legislation of the world. Story, in his Commentaries on the Constitution of the United States, sets forth in paragraph n? 211, the following doctrine: ^'The third clause of the third article, contains a constitutional definition of the crime of treason, (which will hereafter be treated separately), and then proceeds in the same section stipulating that Congress shall have the power to impose punishment for treason. No charge for treason shall give rise to the loss of hereditary rights or to confisca- tion, except during the lifetime of the party thus accused." Article 21st. of our Constitution grants several guarantees to the accused, amongst them is that they shall have a hearing personally in their defense or by parties worthy of their confidence, and that the cause shall be drawn up in conformity with the regulations established in each suit. This being the case, and as Mr. Almonte was not submitted during his lifetime to any trial, nor did he have a hearing in his defense, nor did he enjoy any of the guarantees granted to him by article 20, already mentioned, no penalty whatever could be imposed upon him. And, why! Because a penalty presupposes the existence of an offence, and the latter the existence of some legal process or law - suit that has inves- tigated the matter and pointed out the party who committed the said offence. When all these circumstances are lacking, I really cannot see why any penalty of importance could be imposed upon Mr. Almonte or his family, in the absence of some proceedings that might have declared him guilty; because to admit any- thing to the contrary would be to tolerate the existence of a sequel or a consequence without an antecedent or a pre- cedent to produce the former. It would be equivalent to admitting the existence of a son and denying at the same time the existence of the mother who bore him; and this is such an absurdity, either in the natural as well as in the civil order of things, that it can never agree with reason or common sense. But in support of what I allege, I count furthermore upon articles 22 and 50 of our Fundamental Code, which has been referred to several times in the course of this petition ; said articles reject forever the penalty of confiscation of any property, and the reunion of any two of the powers of the Nation in any single one of the three branches into which the authority of the Government is divided. Suffice it to enunciate the first of the above-mentioned articles in order to show that his patrimony could never have been deprived of his property, because negative laws are absolute, and in no case whatever can their effects be suspended; and much less when the law of the 16th. of August, 1863, was not promulgated by the Congress of the Union, to whom this authority belonged in accordance with the precepts established in fraction 30 of article 72 of the said Federal Constitution. It will probably be alleged against me that the law relative to confiscations was issued by the Executive when the latter was invested with extraordinary powers. But aside from the fact that this does not invalidate any of the arguments presented in the manifestation of the rights which I repre- sent, the house n? 10 situated in the 1st. Street of San Juan was taken from the patrimony of my husband during the latter part of the year 1867, and during a time when, peace being restored, all the federal powers worked freely within their especial spheres. Thus, not even this argument, to which resort might be had as a last resource, is to be admitt- ed, in resolving the question which gives rise to this suit of amparo. For all the reasons above set forth, I beg that you will be pleased to consider my petition as presented in due form and within the legal time, and that you will grant amparo (protection), to the intestate I hereby represent, as against the acts of the Treasury Department, which, founded upon the law of the 16th. of August, 1863, confiscated the house marked with n? 10 situated in the 1st. Street of San Juan, from General Almonte, upon the ground that by the said acts were violated in his person the guarantees granted to him by articles 16, 20, 21, 22, 27 and 50 of the Federal Constitution ; and that you will likewise declare definitively that the Justice af the Union protects and shields me against the said acts, and in accordance with what is provided for in article 12, paragraph 1st., of the law of January 20, 1869. I beg the Court to grant my request, because it is just, and I duly protest all the law requires. Mexico, March 15, 1878. — (Signed.) — Dolores Quesada de Almonte. — Manuel Lomhardo. — As of counsel for peti- tioner. Report of tlie Treasury Department. Mexican Republic. — Department of the Treasury and Public Credit.— Section 2d.— N9 3874. This Department has become acquainted with the com- munication of the Court you preside, dated the 20th. inst., to which you accompany a copy of the petition presented by Mrs. Dolores Quesada de Almonte asking am/par Oj (pro- tection) against the order of the National Government, who declared the confiscation of the goods and property belonging to Don Juan N. Almonte, amongst which is included a house marked with n? 10 and situated in the 1st. Street of San Juan in this City, which has given rise to the said petition. It is a fact that the National Government, by an order issued on the 20th. of August, 1867, declared the confisca- tion of all the property belonging to various infident Mexi- cans as that Court may see from the exhibits n? 1 and 2, in which was declared that the said Mexicans, among whom appeared Almonte, were guilty, with aggravating circums- tances, as that of notoriety, and others to which the un- dersigned waives to allude; because in order to inform that Court in compliance with the law of amparo, it is not ne- cessary to disturb the ashes of those who carried out the foreign Intervention, nor to pronounce the sentence which History has already applied to them. The National Grovemment was invested with the niQst ample faculties by act of Congress passed on the 27th. of May, 1863, whose object was the salvation of the Republic by rejecting the foreign enemy. The said act of Congress extended the suspension of the guarantees granted by the Constitution, and therefore, any- thing that may be alleged as a violation of the said guarantees, cannot be sustained, because it would be equivalent to ques- tioning the right of self-preservation. Therefore, the amparo which is now asked, after the lapse of more than ten years, on account of the enforecement of the laws which may be properly called of ^ ^public safety," and in consequence of the punishments which may be affirmed were decreed, approved and sanctioned by the Nation itself, could not be granted without justifying more or less indi- rectly the attrocius acts of the Intervention, and without throwing a blemish upon the patriotism, proclaimed by all civilized countries, of those who placed themselves at the head of the people in order to eject from their native country the foreign invader. Now that I have the honor to reply to your said commu- nication by order of the President, I must call your attention to the very exceptional circumn stances under which were issued and enforced the law of ample powers and that of the 6th. of August of the same year, the latter being the one which was applied to Almonte; and I likewise call your attention to the confusion which would be occasioned by the judicial examination of acts already consummated by virtue of discretional pov/ers, as though the fundamental law which was saved together with our nationality, could possibly serve in the course of time, in favor of those who attacked both their country and her Constitution. 10 From tlie law of the 11th. of December, 1861, which was issued in the presence of the enemy who was invading the territory of Mexico, as were also the subsequent laws, up to that of the 27th. of May, 1863, which, according to its tenor was to be in force until one month after the meet- ing of the National Congress, — and I call very particularly the attention of your Court to this latter provision, — the powers granted to the Executive were unlimited^ and the suspension of guarantees was general. For these reasons the Executive was empowered to issue laws like that of the 6th. of August, 1863, which in Article 1st. designated the cases of high treason and imposed the penalty of confiscation as well as the corresponding corpo- ral punishment ; and when, owing to the magnanimity which was naturally produced by the final triumph of the Eepu- bhc, the penalty was reduced to mere confiscation by the law of the 12th. of August, 1867, in this amnesty were not included the most responsible parties, as may be seen in article 2 of the last mentioned law; and owing to this very just exception, as I stated at the beginning of this commu- nication, there was issued on the 20th. of the same month and year, a supplementary law or explanation regarding those parties who should suifer definitively the penalty of confiscation, the provisions of which measure were carried into effect within the time fixed for the duration of the ample powers, because Congress did not meet until several months after. Treating this question in its general importance, and with- out discussing the extension which article 29 of the Cons- titution may have, by which the suspension of guarantees is authorized and the amplification of the powers granted to the Executive, because the very salvation of the country 11 refutes any objection that niight be made in this sense; I will confine miself to call the attention of your couii to the copy of the account n? 162 which has been asked of the Fe- deral Comptroller's Department which I inclose with do- cument n? 3, and from which it appears that for the sale of house n? 10 of the 1st. Street of San Juan, it was previous- ly appraised, duly advertised, and that when sold at auction, according to law, the offer of general Francisco Paz was admitted, it being two thirds and one dollar more of the price fixed and published. — Mexico, March 22, 1878. — (Signed.) — Bomero. — To the Judge of the 1st. District Court of Mexico. — Present. Opinion of the District Attorney To THE 1st. District Judge: The District Attorney stales: That on the 14th. of Oc- tober, 1867, the Grovernment of the Republic sold at auc- tion, through the Treasury Department, the house mark- ed n? 10 situated in the 1st. Street of San Juan, which was confiscated from Mr. Juan N. Almonte, on account of the part he had taken in the French Intervention and in the es- tablishment of the so-called Empire; the said sale was car- ried out with the usual legal formalities; that is to say, it was published three times, the house was appraised by a competent party, and finally turned over to the purchaser for two thirds of its fixed price. This sale at auction under the conditions above expressed, 12 and which fully corroborates the report given by the Trea- ;^ury Department, embraces, as may be seen at once, a mul- titude of constitutional infractions; but the latter ought not to be discussed, inasmuch as the said sale was carried out precisely by virtue of the suspension of the Constitution and of the extraordinary powers granted to the Executive ; so that our examination of this case should be directed towards fixing the scope of those same ample powers, and conse- quently, the legality of the acts of the Executive. For reasons to which the war of intervention gave rise, the Congress of the Union issued on the 7th. of June, 1861, a law of extraordinary powers, which was amplified and re- newed on the 11th. of December of the same year: on May 3d., 1862, and on the 29th. of October of the same year, the said ample powers were extended, and on May 23d., 1863, a few days previous to the departure of the Government from the Capital, a last law was passed regarding the same subject. The simple perusal of the acts, which were renewed seve- ral times, shows very clearly that the guarantees suspended in May, 1863, were those established in articles 5th., 7th., 9th., lOth., 11th., 13th., 18th., 19th., 16th., 21st., 26th. and 27th.; and the same laws also authorized the Executive in the most unlimited manner to act as might be convenient, in view of the very grave circumstances through which the country was passing, with no other restriction than that of saving the independence and integrity of the national terri- tory, the form of government established by the Constitution and the principles and lavv^s of Reform. The suspension of the said garantees was to last until one month after the meet- ing of Congress, and it did not include the decision of con- troversies among private individuals nor the violation of the 13 ((uH^'^'^^HSITq constitutional privileges which are ^S^wtooeijt^i^olic officers by article 4 of the Constitution. "'^'*-— -— -^^^^^^^ By virtue of the said ample powers, the Executive at once commenced to make use of the right of legislating, and one of the subjects regarding which laws were thus passed, was the crime of treason and the penalities to be imposed for the commission of the same, and among the latter was established the confiscation of property. The law of April 13th., 1862, and those of February 17th., and of the 18th. of July and 16th. of August 1863, fully prove what we have just stated; the latter law being that which we consider the most im- portant, not only because it embraces more points and that it provides the manner in which confiscation was to be carried out, but also because under its provisions was ordered and carried into eflfect, the confiscation of the property which has given rise to the amparo now solicited from the Federal Su- preme Court. If we examine the letter and spirit of the said measure and that of the act of May 23d., 1863, by virtue of which the for- mer was given, the case of Mr. Almonte certainly presents nothing which can be deemed contrary to the said measures. Neither the confiscation nor the manner in which it was carried out, nor the period in which the sale was made, deviate in the least from the provisions contained in the laws above referred to; and it may not be out of place to observe that if, according to the law of the 14th. of August, 1867, the penalty of confiscation was reduced to the payment of a fine, Mr. Almonte was excepted from the enjoyment of that favor; and that the Congress of the Union did not meet until the 20th. of November of the same year, in accordance with the call for elections issued on the 14th. of August; and furthermore, at that time, that is to say, when Congress met, u the confiscation now before us had been definitively carried out, since the sale had taken place on the 14th. of October, as above stated. But it is likewise proper to interpret the real sense and scope contained in the decree of extraordinary powers, in conformity with which the Executive acted respecting this and other matters. Upon this subject there are two essential points to be dis- cussed. First: can the Executive legislate! Second: can he do so, establishing the penalty of confiscation! With regard to the former, it has been sustained in view of articles 50 and 29 of the Constitution, that the Executive is not authorized to legislate in any case, and that the con- cession of extraordinary powers can only refer to the suspen- sion of individual guarantees in accordance with the precise text of article 29. But if this point be duly considered, we find that the second part of this same article speaks of all the powers which may be deemed necessary in order to insure the independence or public safety in any way threatened : and to this view may be added the argument presented by Mr. Rodriguez in his notes on constitutional law, which is as follows: if the suspension of the guarantees with which the Constitution assures the rights of man be admitted, there is far more reason for suspending, when necessary, the effects of the constitutional law in all that which relates to the forms of political organization and to the powers granted to pubhc officers. It cannot moreover be said that this apparent confusion of powers destroys the Republican form of government; be- cause, aside from the fact that those powers look towards the presei-vation of a thousand other institutions which procure the existence of that very form of government, and that in 16 ao way is the latter affected by the said confusion of powers, in certain special cases it becomes necessary, with the object of saving that very form of government, to adhere to certain specified rules which pave the way towards that form, when the latter by itself alone w^ould by no means succeed. The above suHices, as regards the power of legislating; but before proceeding any farther, it is well to take into con- sideration another difficulty which is important. Congress granted extraordinary powers to the Executive, whose term expired in 1865, and the latter, of his own accord, exten- ded his term of office in November of the same year, con- sidering himself invested with the powers granted by Con- gress, the latter not having, in so doing, foreseen this case, upon passing the said act of extraordinary powers. Could the Executive, who commenced a new term in 1865, consider himself as invested with the extraordinary powers granted by Congress in 1863 to the Executive elected in conformity with the Constitution ?^ The undersigned is of opinion that the Executive was right in considering himself thus empowered, founded upon the preambles which preceded the law of No- vember, 1865, by which the presidential term was extended. Let us now see whether the Executive could legislate, establishing confiscation. This penalty, as is explained by the jurists Messrs. Crispiniano del Castillo and Eulalio Or- tega in a very remarkable treatise pubHshed in Number 36 of the newspaper called Los Bereclios del Homhre, is pros- cribed and condemned by science and civilization: it has been excluded from all modern constitutions, and even the State acknowledges that it has no right to impose the same. Slave- ry is compared to it on account of the sacred right it affects, and it has never been in force in Mexico, its application hav- ing been prohibited /oret;er by the Constitucion of 1857. 16 There is something very s]3ecial, as Messrs. Ortega and Castillo sustain, regarding certain constitutional guarantees, and that is that from their very nature they admit of no sus- pension, and really they cease to exist from the moment they are suspended: one of those guarantees is the right to hold property, and if the latter be confiscated, the said guarantee disappears forever. In short, the undersigned is of opinion that for no other reason but because it is odious, dissolving and barbarous, con- fiscation cannot have been included in the spirit of the ge- neral act of Congress of 1863, as could neither have been included in the said act the power of creating slaves or of depriving man of his life, outside of the terms fixed by the Constitution. The undersigned considers a decision in the present case as frought with many difficulties, and he has reflected before giving his opinion as far as his limited capacity and the very short space of time he has had at his disposal will permit, regretting that for these reasons he has scarcely been able to point out a few of the serious difficulties this case presents. The undersigned District Attorney concludes by asking the Court to be pleased to decree as follows: The Justice of the Union protects and shields Mrs. Dolo- res Q. de Almonte, administratix of Mr. Juan N. Almonte against the acts of the Treasury Department, in virtue of which the house belonging to her in the 1st. Street of San Juan was confiscated and sold at auction, because in the per- son of the complainant were violated the guarantees granted by article 22 of the Federal Constitution. Mexico, June 3, 1878. — (Signed.) — J, Algara, 17 Sentence of the District Judge, Mexico, July the twentieth, year one thousand eight hundred and seventy -eight. — After having examined the petition of amparo put forward by Mrs. Dolores Quesada de Ahiionte, as the wife and administratrix of Mr. Juan N. Al- monte, and as an appeal against an order of the Executive of the Union issued through the Treasury Department on the 20th. of August, 1867, by virtue of which the house n? 10 si- tuated in the 1st. Street of San Juan was confiscated, the said house being the property of Juan N.xilmonte, on the grounds that the latter had committed treason against his country, which measure has, in the opinion of the complainant, vio- lated the guarantees granted by articles 16, 20, 21, 22, 27 and 50 of the Constitution of the Republic- After having examined the corresponding report and other evidence as well as the opinion of the District Attorney and all other proofs concerning the case, and : Whereas the law of May 27, 1863, expressly declared that the suspension of individual guarantees and the concession of extraordinary powers granted to the Executive should last up to thirty days after the first meeting of Congress or before this period should the war with France have come to an end; and that in August, 1867, not only had the French interven- tion come to an end but also civil war in the country: Whereas for these reasons, constitutional order having then been reestabhshed, the Executive had not the power to order the confiscation of the property belonging to Mr. Juan N. Almonte, which act would involve a violation of the guarantees to which the complainant refers: 18 For these reasons, and in view of the provisions of articles 101 and 102 of the Federal Constitution and of the lavir of January 20th., 1869, and in accordance with the opinion of the District Attorney, we hereby declare: That the Justice of the Union protects and shields Mrs. Dolores Quesada de Almonte, as the wife and administratrix of Mr. Juan N. Almonte, against the order issued by the Treasmy Department on the 20th. of August, 1867, in vir- tue of which was confiscated and sold house n? 10 situated on the 1st. Street of San Juan. Let this sentence become known, published in the news- papers, and the proceedings sent to the Supreme Court of Justice for their revision. Thus was it decreed and ordered by the 1st. District Judge : I certify. — ( Signed. ) — B. Bamirez. — P, de A, Osorno. Order of February 19, 1879. There were present at this session : Chief Justice Vallar- ta; Magistrates of the Court, Altamirano, Montes, Martinez de Castro, Alas, Bautista, Avila, Guzman, Saldana and the Attorney- General. Absent: Messrs. Ramirez, Ogazon and Blanco. The order of the previous session having been approved, the Secretary Gonzalez Angulo gave an account of the suit ofaniparo put forward by Mrs. Dolores Quesada de Almonte, against the confiscation of house n? 10 situated in the 1st. Street of San Juan. Justice Montes spoke in favor of the peti- tioner's demand and Chief Justice Vallarta against it, the latter retaining the floor for the following session. 19 Order of February 20, 1879. There were present at this session : Chief Justice Yallai - ta, and Magistrates Altarairano, Alas, Martinez de CastrO: Bautista, Vazquez, Avila, Guzman, Saldaila and the ilttor- ney - General. Absent, with leave : Messrs. Ramirez, Ogazon, Montes and Blanco. The order of the previous session v/as approved 'Chief Justice Yallarta concluded his argument regarding the suit of amparo put forward by Mrs. Dolores Quesada de Al- monte. Then Mr. Bautista spoke in favor of the said amparo and Messrs. Altamirano and Guzman spoke against' it. The debate having closed, a vote was taken with regard to the sentence of the 1st. District Judge, which sentence grants amparo (or protection) to Mrs. Almonte, and the said sentence was reversed by the votes of Messrs. Saldaila, Guzman, Avila, Vazquez, Alas, Altamirano and Chief- Jus- tice Vallarta; and the Attorney - General and Mr. Bautista voted in favor of the said amparo as well as Mr. Montes, who had left his vote at the Secretary's office on the preceding hearing. Opinion of Cliief- Justice TaUarfca, in the Suit of "Amparo^' put forward by Mrs. Dolores Quesada de Almonte The many and very serious constitutional questions to which this case of amparo gives rise ; the incalculable trans- 20 cendency which the decision the Court is about to pronounce will exei-t, not only regarding the cases already decided some time since in conformity with the laws whose enforcement and constitutionality are now denied, but also upon that which is still far more interesting, — with regard to the exercise of the right of self-defense which belongs to the Republic whe- never her sovereignty and independence are assailed, give, in my opinion, an importance so exceptional to this case, that it demands from every one of the Magistrates the most atten- tive consideration and the most conscientious study. Desi- rous of fulfiUing the duties of the office I have the honor to hold, I have endeavored as far as my strength will permit, to study impartially and to resolve accurately the said serious constitutional questions, founding the vote I am about to give upon the principal reasons which have served me ir^ order to form my opinion. I am very far from believing that I have attained the accuracy I have sought for; but if I have been mistaken, let the arguments I now proceed to express testify to the sincerity of my convictions. II. The sentence pronounced by the inferior Court, granting the amparo asked, is founded exclusively upon the ground that "the law of May 27, 1863, expressly declared that the suspension of individual guarantees and the concession of ex- traordinary powers in favor of the Executive, should last up to thirty days after the forthcoming reunion of Congress, or before, should the war with France have come to an end; and that as in August, 1867, not only had the French In- tervention come to an end but also civil war had ceased, the 21 Execiitive lacked authority, constitutional order having then been reestablished, to order the confiscation of Mr. Juan N. Almonte's property on the 20th. of August of the same year." This argument, which if true, would be unanswerable, is made use of by the counsel of the party asking for amparo and supported, as far as historical facts are concerned, by tes- tiomonial evidence which he has produced : but the said ar- gument is groundless, and thus leaves the sentence given without a real foundation. When was constitutional order restored in the Republic after the war of Intervention! When, at which fixed and precise date, did the extraordinary powers granted to the Executive by the law of May 27, 1863, cease? Here is a question which is resolved in the most undeniable manner by official documents and contrary to the assertions contained in the aforesaid sentence. On the 15th. of July, 1867, the National Government once more established its residence in this Capital. * On the 13th. of the following August, the Executive appointed a provisio- nal municipal body to act in this City until the end of the. year, at which time the people were to elect the correspond- ing constitutional City - Council. ^ On the 1st. of the same month the Government appointed provisionally the Supreme Court of Justice, with authority to act as the Superior Court of the District, until the persons who were to form the same could be constitutionally elected by the people.^ On the 14th. of the same month of August was issued the unfortunate call for elections which caused so many disturbances on the very day of the triumph of the Republic, which not only called 1 Message of President Juarez of the same date. Recopilation of laws, de- crees, etc. : edition of 1870, vol. I, page 1. 2 Recopilation of Laws and Decrees already quoted ; p. 58. 3 Recopilation of Laws and Decrees already quoted : vol. I, p. 22. ^ 22 for the election of Federal Officers but also for that of local authorities. * On the 28th. of October the Deputies to the Federal Congress were notified to be present at the first pre- paratory meeting which should take place on the 5th. of No- vember, ^ and nevertheless Congress did not meet until the 8th. of the following December. ^ The official declaration of constitutional President of the Republic and of tliis Supreme Court was made by Congress on the 19th. of the same month of December, ^ that of the Magistrates having been delayed until the 4th. of February, 1868,^ and therefore this Supre- me Court was not installed until the 14th. of the said month. These historical facts are sufficient to prove that on the 20th. of August, 1867, constitutional order was very far from having been restored in the Eepublic. On that day there was not a single federal or local, or even municipal authority that had the least right to be called constitutional: at the said time the foreign enemy, liad scarcely left our shores, and there existed no other powers aside from those that had been created by a state of war, excepting those which the natio- nal will had most decidedly sustained in order to defend the independence of the Republic. Therefore, the argument presented by the counsel of the party referred to, namely: that on the 20th. of August, 1867, constitutional order had been restored in the country, is ut- terly groundless, erroneous and cannot be sustained. Article 1st. of the law of May 27, 1863, provided that the extraordinary powers should last '^ until thirty days after the next meeting of Congress in ordinary session, or before, 1 Recopilation of Laws and Decrees already quoted : vol. I, p. 6. 2 Recopilation of Laws and Decrees already quoted, same vol., p. 220. 3 Parliamentary Records of the 4th, Congress: vol. I, p. 67. 4 Recopilation of Laws and Decrees already quoted: vol. 1. pp. 572 and SJS. 5 The work above referred to. vol. II, p. 110. 23 should the war with France have come to an end. " When, on what exact date did this term expire? when was the con- dition referred to by this kw fulfilled! President Juarez in his message upon the opening of the 4th. Constitutional Congress on December 8, 1867, expres- sed himself as follows: ''According to the law of May 27, 1863, the concession of ample powers granted to the Execu- tive was extended until thirty days after the meeting of Con- gress, or before, if the war with France should have come to an end. The termination of the state of war cannot be de- clared by Mexico, although in fact no hostilities exist with the said nation. The latter made war upon us without having as yet expressly declared her desire not to continue the same. Thus, according to the said law, the ample powers granted to the Executive should last until thirty days from this date. Nevertheless, I have thought it more proper to declare, as I now do, in this solemn act, that I will make no further use of those powers. ... It is gratifying to me, citizen deputies, to return to you the deposit of the many ample powers you had confided to me." ^ And the Speaker of the House, commen- ced his discourse in reply to the above, with the following remarkable words: "The Nation begins once more to-day the constitutional exercise of one of the most precious attri- butes of sovereignty, that is, the power to legislate through her representatives, thanks to the heroic perseverance of her sons in the glorious struggle she has sustained for five years against foreign invasion, etc. " And farther on the same Spea- ker added : "Congress has heard with pleasure that the Head of the Executive Power returns to their source the ample powers which were granted him by the congressional acts of December 11, 1861, of May 3d., and 27th. of October, 1862 1 Parliamentary Records of the 4tli. Congress, vol. I, p. 5G. 24 and of May 27, 1863, because this fact shows that peace can be maintained with the constitutional powers of the govern- ment. " * These official and solemn declarations suffice, in my opi- nion, to determine historically and legally, that the 8th. of December, 1867, is the exact date when the ample powers granted to the Executive came to an end. As to the historical question, the documents I have quoted are so decisive, so conclusive, that I cannot imagine how it is possible that any doubt should arise regarding the facts therein related. And as to the legal point in the case, but few remarks will suf- fice in order to become fully convinced that on the said 8th. day of December, and not before nor afterwards, the ample powers ceased. •It is well known that the National Congress, after closing its sessions on the 31st. of May, 1863, did not meet again until the 8th. of December, 1867. Throughout the whole time the war lasted, the existence of Congress was really im- possible, and this notwithstanding the many efforts that were made, first by the Standing Committee at San Luis Potosl,^ and afterwards by the Government at Monterey.' It could not, therefore, be said on the 8th. of December, 1867, that the term fixed by law for the duration of the ample powers had expired, inasmuch as Congress had not acted during the war. According to the said law, those powers might have been extended untilJanuary 8, 1868, as was correctly stated by the President in his message. But was not the condition fixed also by that same law for 1 Parliamentary Records of the 4th. Congress, vol. I, pp. 68 and 60. 2 Decree of October 2, 18G3.-- "Journal of Debates* Third Congress, vol II, p. 67. 3 Decree of October 27, 1863. —Collection of laws, etc., edition of .8G7, vol, I, p. 171. 25 the cessation of those .powers fulfilled on the said 8th. day of December I Had not the war with France ended? Regard- ing this point nothing better could be said than that which was so modestly set forth in the same Presidential message. France, who made war upon us without having preyiously declared it, withdrew her troops from Mexico without either having declared that peace was restored. And the simple withdrawal of the French army did not alter the state of things created by the war. Had the Govern- ment of Mexico in view only of the said withdrawal, hastened to proclaim the conclusion of the war, it would not only have placed itself beyond the doctrines of International Law which regulate these serious questions,* but it would have sorely wounded the national feeling, — it would have compro- mised the interests and dignity of the Republic. On the other hand, the cessation of the state of war could not have been declared in the same document in which it was stated that ^^the Governments (like that of France) have broken their treaties with the Repubhc and have suspended and still sus- pend thir relations with us"^ because the rupture of treaties, caused by war, is wholly contrary to a state of peace, and a consequence of peace is the renewal of those treaties.^ However desirable it may be that a treaty should restore relations between France and Mexico, which relations still remain interrupted in consequence of the war, it is impos- i There appear to be three ways by which war may be concluded and peace restored: I. By a de facto cessation of hostilities on the part of both bellige- rants, and a reneival de facto of the relations of peace. II. By the unconditional submission of one belligerant to another. III. By the conclusion of a formal treaty of peace. Phillmore. International Law, vol. Ill, p. 510. 2 Message of President Juarez already quoted.— Parliamentary Kecords 4th. Congress, vol. I. p. 57. 3 Les conventions, dont la mise en pratique avait etait suspendue pendant la guerre, rentrent en vigeur de plein droit a la conclusion de la paix. Calvo, Le Droit International, vol. II, n? 1303. 26 sible to find in President Juarez's Message but the declara- tion of the Btatu quo post helium j a declaration, furthermore, which cannot be resolved upon by the courts, because its resolution pertains to other powers, as is provided by our fun- damental law in reference to aifairs of that nature.* In order to support my arguments upon this point, I will invoke a most important fact. These declarations set forth by the President, were made before the Congress of the Union, and the latter not only accepted them, but it adopted the policy which has been approved by subsequent Congress- es, which policy has been vigorously maintained by our Go- vernment and may be considered amongst us as time -hono- red, viz : that which considers as broken all the treaties ce- lebrated by France with Mexico previous to the war. Can it not be perceived, in view of these brief remarks, that there exist an immense' distance, an unsurmountable difficulty to be overcome in order to sustain the decision of the inferior court, when the latter declares that in August, 1867, the war with France had ceased? . . , . Hence, I will affirm, as a summary of what I have stated, that neither the period of time fixed by the law of May 27, 1863, nor the conditions provided in the same had expired nor been complied with in August, 1867 ; and that therefore, the final result of my arguments is that on the said month of August, the ample powers granted to the Executive had not expired, and that, therefore, for these reasons, the amj^aro asked for cannot be granted. 1 Sections XIV of art. 73, and viii and x of art. 85 of the Federal Constitn- tiOD. 27 III If I only sought to eombat the decision of the inferior court, with what I have ah'eady stated my object would have been attained. But upon examining this very serious case, I have wished to do so in all its various phases, and affronting the ve- ry transcendental questions to which the said case gives rise, however difficult and arduous they may be. On the other hand, when the same petition for amparo is founded upon the grounds that the law of August 16, 1863, was not issued by Congress, the same argument being reiterated in subse- quent briefs, and thus it is alleged that the said law is null and void, because it emanated from the ample powers con- ferred upon the Executive, it becomes indispensable to deal with this question openl}^, however difficult it may be. The question to which this case of amparo gives rise, may be thus put forth: Were the extraordinary powers with which President Juarez was invested during the time of the war with France, constitutional! Are the laws which the lat- ter issued, in virtue of the said extraordinary powers, valid? The laws of May 27, 1863, and those that preceded the latter and were part and parcel of the same: those of October 27 and May 3d., 1862; of December 11 and June 7, 1861, all those laws, I ask, were they legitimate and valid, or, were they on the contrary, unconstitutional and null! After stat- ing the above, it will be seen that I have affronted the most important issue involved in this case. When this Supreme Court granted the am^^aro solicited 28 by Mr. Faustino Goribar, and the Hon. Magistrate Montes in a discourse, whicli was truly able and full of learning, discus- sed this question, I at the time, not so much on account of my natural inclination for the study of all constitutional ques- tions, but in order to comply with the very delicate duties devolving upon me in consequence of the office I then held, devoted all my attention to the point which at that time was decided by the Court. And I must say with all due respect to this High Court and to the talents of the Hon. Magistrate Montes, that the reasons at that time put forth in order to deny the legitimacy of the ample powers, were insufficient to alter the opinion which I have entertained ever since, as Deputy to the Constituent Assembly, I gave my vote in fa- vor of the second part of article 29 of the Constitution. And that same opinion which, as Secretary of Foreign Affairs, I had to sustain in defense of the Eepublic, is also the one I shall do my best to demonstrate in this serious case, thus complying with my duties as Magistrate of the Supreme Court. And however painful it may be for me to have to combat the writs of execution issued by this Court, my con- science forbids me to accept certain theories which the latter rejects, on account of the respect I entertain towards the said high Tribunal. If anything can serve me as an apology for the arduous and difficult task I now undertake, let it be a feeling of duty which compels me to speak. Leaving aside all other preambles, I will now deal with the case itself , Those who sustain the theory that never , at no time, and for no reason ivhatsoever shall ample powers be granted to the Executive for the purpose of legislating, do so upon consti- tutional grounds, foimded on article 50 of the Constitution, in that part wherein the latter says: ^^ Never shall two or more of these powers be vested in one single person or corpora- 29 tion, nor shall the legislative power be confided to any single individual." Those v^ho defend this theory, give to the ad- verb never J a legal significance as absolute as that which it possesses in grammar, and believing it to be a synonyme of ^hievevj and at no time tvhatsoever,^^ subject the precept of the latter part of article 29 of the Constitution, to the interpreta- tion thus unlimited of the above text, affirming that never, at no time, and for no reason whatever, shall the power to legis- late in any matter be conferred upon the Executive. The argument I have just set forth is so forcible, that it suffices to impede any discussion upon the matter, and it li- kewise prevents the latter from being placed under its proper light. Being convinced of this truth, I desire, even if I have to deviate from the rules, to begin by resolving the said ar- gument, so as to be able afterwards to enter upon the debate and deal with this question in all its bearings. Is the absolute and strict interpretation attributed to the final part of article 50 by those who defend the theory I com- bat, acceptable or not? Is it true, be it either in view of real constitutional law or in that of the philosophy of political law, that never ^ at no time, in no case, and for no reason tvliatsoever, can two or more powers be vested in a single person or cor- poration, nor the legislative power deposited in the hands of one- individual I I do not think so, and in order to sustain my opinion I will at once state that if authority be confen'cd upon the President of the Eepublic, for the purpose of legislating in military matters for instance. Congress retaining never- theless, the supreme legislative power, neither are two po- wers vested in one person, nor is the legislative power con- fided to one individual, nor is article 50 of the Constitution thereby infringed. I believe that the said article forbids that in any one of those three powers should be included the other 30 two or even one of them, in a permanent manner, that is to say, that Congress should suppress the Executive in order to assume the functions of the latter, or that the Court should be declared a legislative power, or that the Executive should obrogate to itself judicial authority. In this manner there would certainly be a reunion of two of the three powers, which is rightfully prohibited by the said article 50. This is the way I interpret the constitutional text referred to. And I found this interpretation, among other reasons, upon other texts of the same fundamental Code, which are in ac- cordance with the one above mentioned, because I shall ne- ver admit that the various precepts contained in the Consti- tution can be irreconcilable with each other and that they are in open contradiction destroying each other mutually. I will now quote the texts to which I refer. The House of Deputies and the Senate exercise real judicial powers in certain cases, when they try high public officers of the Federation, as well as governors of the States, according to articles 103, 104 and 105 of the amended Constitution. Can the said judicial po- wers be denied to the Legislative Branch of the Administra- tion, because never, at no time, in no case, and for no reason wJiatsoever can in any corporation be united the Legislative and Juditial Powers! Can article 50 be invoked against arti- cles 103, 104 and 105 of the Constitution! Can the former be interpreted in a manner which the latter reject! Evidently it cannot. Hence, the very texts of the Constitution show us that the adverb never, as used in article 50, does not signify what is sustained by the defenders of the theory I now combat. The President of the Republic is empowered by fraction X of article 85 to ^^ celebrate treaties with foreign powers," which treaties, according to fraction I, letter B of article 72, as amended, shall be submitted to the approbation of the Se- 31 nate. And as these treaties, according to article 126, are veri- table laws, in a final analysis we shall find, according to those texts, that the Legislative Pbwer for the celebration of trea- ties is deposited in the President of the Republic, who, al- though it is true, shares it with the Senate, it is however ex- cluding the Chamber of Deputies. It is impossible to enter- tain any doubt regarding this constitutional truth. And, now; can that power to legislate be denied the President, because never J at no time, and in no case whatsoever can the said autho- rity be vested in one single individual? Can articles 50 and 51 be so interpreted as to destroy, as to annihilate the pre- cepts of the other articles I have just now quoted? I deem this to be utterly untenable. I might quote other texts which conclusively reject the interpretation of article 50 which I am now refuting. I might enumerate certain powers of Congress which are not strictly legislative but judicial, such as are conferred upon it by the latter part, fraction XXVIII, of article 72; or administrative, as are those conferred upon the same body by fractions XII and XXIX of the said article; I might refer to the fact that for slight offences, for certain faults, the political or adminis- trative authority may imj)ose corrective penalities, according to article 21, in order to sliow how it is that in these cases and on certain occasions, according to the constitutional texts themselves, the reunion of two powers in one person or cor- poration is licit and legal; in order to prove that the rule esta- bhshed by article 50 is not so absolute or inflexible that it admits of no exceptions. But I do not think it proper to trespass upon the respectable attention of this Court by going into an extensive analysis of all the texts which may favor my arguments. Those I have already quoted suffice in order to consider myself justified in concluding that the accord of the 32 precepts themselves of the Constitution compel us to acknow- ledge that the adverb never ^ of article 50, is not, legally speak- ing, a synonyme of a^ no time, o^ no occasion: that the said article does not contain a rule so general and absolute as to consider each one the exceptions contained in other articles of the same Code a violation of the latter. And if in view of positive law we have found so many excejjtions to the said rule, in view of the philosophy of po- litical right it can not be sustained that the same is as in- flexible as it is sought to make it appear. I might appeal to more than one very respectable authority in order to show that the said division of powers into the Legislative, the Exe- cutive and the Judiciary, although universally accepted by all enlightened peoples, is not traced out so mathematically as to enable one to perceive at a glance and with precision the limits of each one of those powers: and also in order to show that the same powerful reasons which tended to create that division, demand at times that one of the powers shall exercise the functions which properly belong to another. But I abstain from doing this, because before this Court no au- thority is superior to the Constitutional text, and it would therefore be superfluous to quote the jurists who establish ex- ceptions upon the principle of the attributes of each power, inasmuch as the said texts refer to those exceptions in the most explicit manner. I believe I have removed an obstacle which prevented me from placing the question of extraordinary powers in its pro- per light, because I think I have given a correct explanation of the argument which in the name of the Constitution has attacked the theory which I am. about to defend as neces- sary in cases like that to which the suit of amparo we are now discussing has given rise. 33 Having shown that article 50 does not, in an absolute manner and without any exception whatever, prohibit one of the powers from exercising the authority which properly belongs to another, I am now in a position to show the cons- titutionality of the said theory in the most direct manner. K Article 29 of the Constitution says: '*In cases of invasion, grave disturbance of the public peace, or whatever cause which may put society in great peril or conflict, only the Pre- sident of the Republic in concurrence with the Council of Ministers, and with the approbation of the Congress of the Union, and in the recess of the latter, of the permanent depu- tation, may suspend the guarantees established by this Cons- titution, with the exception of those that assure the life of man; but such suspension shall be only for a limited time, by means of general provisions, and of such a character as not to favor a determined individual purpuse. '•If the suspension take place during the session of Con- gress, this shall grant such authorization as they shall deem necessary to enable the Executive to confront the situation. If it shall take place during recess, the permanent deputation shall, without delay, convoke the Congress for its advice and action. " In this explicit and conclusive text is founded the constitutionality of the concession of extraordinary powers, as I now will proceed to show. The article above quoted is composed of two parts which are entirely diiferent the one from the other, inspired by dis- tinct views, the results of distinct wants, and which were even discussed and approved at different periods. The first 34 part only refers to the suspension of the guarantees granted by the Constitution, and provides in what cases, how and by whom the said suspension may be decreed; but the second part aUudes to another very different matter: it empowers Congress ''Ho grant the authorization this tody may deem 7ieces- sary to enable the Executive to face a difficult situation. " Ho- wever much it may have been sought to confound the sus- pension of guarantees and the concession of ample powers to the Executive, a confusion which has served to combat the constitutionahty of the extraordinary faculties, by alleging that according to article 29 only the individual guarantees are suspended and not the social guarantees which are per- petual, it is an incontrovertible truth that these are matters entirely distinct the one from the other, and that whatever may be said regarding the one is not applicable to the other. The attentive perusal of article 29 suffices to convince us of this truth. The suspension of guarantees cannot be decreed without ^Hhe concurrence of the council of ministers, " and for the concession of powers to the Executive, this requisite is not necessary. The suspension of guarantees may be ap- proved, during the recess of Congress, by the permanent de- putation or standing Committee of that body; whilst the latter can at no time grant ample powers to the Executive, because if they should become necessary during recess, 'Hhe stand- ing committee shall, without delay, convoke Congress for its advice and action." It were useless to say more in order to see very clearly that article 29 contains two precepts which are entirely different the one from the other: one of those precepts refers to the suspension of guarantees and the other to the concession of powers or authorization to the Execu- tive so as to enable the latter to confront difficult and excep- tional circumstances. 35 This being the case, I entertain no doubt whatever that in the latter part of article 29, already mentioned, is fully founded the legitimacy of the extraordinary powers which Congress may confer upon the Executive, and I am the more thoroughly convinced of this, inasmuch as if the said text is not to be thus interpreted, it would remain as a useless clause of the Constitution, and without any possible application. If the following phrase, viz: '^Congress shall grant the autho- rization Avhich it may deem necessary so as to enable the Executive to face the situation," in cases of invasion, serious disturbance of the public peace, etc,, does not signify the le- gitimacy of the extraordinary powers, in that case either our language has lost all value in the said constitutional precept or the latter must be disobeyed in an arbitrary and whim- sical manner. To hold that the said phrase refers solely to the suspension of individual guarantees, appears to me to be wholly unfounded. What is asserted by the defenders of the theory I combat is therefore, by no means correct, that is, that there is no ex- press text in the Constitution authorizing the extraordinary faculties, and that as the one which prohibits the Executive from legislating exists (article 50), the said faculties are un- constitutional. The said express text exists in the second part of article 29, and article 50 does not contain the meaning that is sought to be given to it. Because the latter is not in con- tradiction with articles 103, 104 and 105, which empower Congress to try pubhc officers for certain offences: nor with articles 85, fraction X, 72, letter B, fraction I, which em- power the President to conclude treaties with the approba- tion of the Senate: nor with article 21 which empowers the administrative authorities to try certain oifenders and impose correctional penalties, etc., and it is neither in contradiction 36 witli, nor does it destroy the said precept of article 29. It is my opinion that this interpretation, this accord between the constitutional texts is per force to be accepted. But rather than enter into abstract dissertations upon the subject, it is better to confine ourselves to the discussion of the case in question, applying to the same the theories which form the object of this debate. The law of May 27th., 1863, and those relating to the same which granted such ample fa- culties to the Executive as far as to authoiize the latter not only to legislate, but even to conclude diplomatic treaties, with the sole restriction of not admitting any kind of inter- vention, and all this for such an indefinite period as were un- certain and indefinite the hazards of the foreign war, those laws whose constitutionality is now questioned, can they be sustained in view of our fundamental Code! can they be in- cluded within the precept of article 291 These are the ques- tions which ought to be solved in the course of the present case. When the said law of May was passed, Puebla had suc- cumbed and the French army triumphant and the traitors full of insolence were approaching the very gates of the ca- pital. In vain did patriotism try to defend it; an inexorable necessity required its evacuation, and it fell into the hands of the enemy during the early part of June. The constitutio- nal Government then commenced the peregrination which carried it as far as Paso del Norte, which fact made the ene- mies of Mexico believe that the ruin of the Republic had been consummated. When Congress held their last sessions during that un- fortunate month of May, the situation was such, that only with the confidence of the purest patriotism could one hope for; the salvation not only of constitutional order, but of the 37 very independence itself. Congress foresaw, and subsequent events fully justified their foresight, that the hazards of war, that the immese misfortunes which afflicted our country, vfould perhaps prevent that body from meeting again for some time to come, and then, acting nobly and courageously in view of that terrible situation, and uot wishing that for the lack of a Congress the national sovereignty should remain without its representative, at the very time when it most needed it for its defense, the said body authorized President Juarez to legislate, to enter into treaties, to dictate all the measures which might be deemed convenient for the salva- tion of the national independence, and all this until Congress should meet again or until the war with France should have come to an end. I shall not ask public and patriotic sentiment whether Con- gress was right or not in delegating these powers to the Exe- cutive, when it foresaw that its existence was impossible un- der certain peculiar circumstances, and when it delegates the same precisely with the object of saving constitutional order and independence together with the representation of the national sovereignty. If during a given war Congress cannot exist, and if in order to carry on the former successfully it becomes necessary to legislate, the feelings of patriotism in- herent in all men cannot but applaud and approve that the President of the Eepublic, the Commander of the Army or whomsoever may be charged with the defense of the inde- pendence of the country should legislate when necessary. . . . But the question we are now discussing is constitutional and therefore it must be solved constitutionally, leaving aside whatever patriotic feelings may suggest. Was the third Con- gress right, did it act in conformity with the Constitution, upon passing the law of May 27, 1863, by which the Presi- 38 dent was as fully empowered as we have seen? Yes ; undoub- tedly, is my ansuverj fully and profoundly convinced as I am, because the text of article 29, so frequently quoted, autho- rizes Congress to grant all the potvers that may be deemed necessary so as to enable the Executive to face the situation; and as the third Congress apprehended, and with full reason, that during the war their functions, might become impossible, they deemed it necessary, also with good reason, to autho- rize the President to legislate, to conclude treaties, because only thus could he face the very serious circumstances under which the country was placed owing to foreign intervention. The arguments taken from the perpetuity of social guaran- tees j of their non- suspension, I may say, by the by, have a very eloquent reply in the history of the said invasion. The French army came not only suspending the social guarantees^ such as the division of public powers, the authority of Con- gress, etc., etc., but even denying the whole Constitution, attacking our independence and conquering Mexico in order to estabhsh an empire for a foreign prince ! . . . . And in or- der to vindicate the said social guarantees, which were not only suspended but even denied and utterly ignored, could not President Juarez ever levy taxes with which to carry on the war? could he never decree any penalties for the punish- ment of the renegades? could he not exercise those powers of war, which International Law grants to all tliose nations which are as infamously invaded as was Mexico at that ti- me? .... Let us reflect upon the seriousness of the conse- quences which would result from the enforcement of such a theory ; let us reflect upon the many dangers which the same would create for the future of Mexico ! . . . . My convictions are so profound upon this point, as to lead me to believe that if the said precept of article 29 did not 39 exist, or, what amounts to the same thing, if it is to be in- terpreted in the sense I have been combatting, the Consti- tution would contain a gap which alone would endanger not only the whole Constitution but the very existence of the Republic. What are we to do in order to carry on a foreign war, if the President can never legislate, even when Con- gress does not exist! Who is to decree the taxes the war demands? .... The abyss thus opened, if such a gap existed in the Constitution, would be immense, fathomless I only allow myself to refer to it, as the fatal term to which we would be necessarily conveyed by the theory I combat. After giving the above reasons, I may conclude by assert- ing that the faculty of legislating was included in the extraor dinary powers granted to the President in 1863; that the authorizations granted to the Government at the said period were sufficiently ample to empower the same to conclude treaties; that the said authorizations were constitutional, and that the acts executed by virtue of the said powers are legi- timate and valid. In my endeavor to found ray vote, I desire to present at least the principal reasons I have for forming my opinion. The history of article 29 in the Constituent Congress is really in- teresting, and it throws so much light upon the truths I have sought to demonstrate, that only by closing one's eyes can any one fail to perceive them. I therefore deem it indispen- sable to refer to the historical origin of the said article, in order that the facts which cannot be doubted may reveal to us the significance which it has in reality, — that which was given to it by the Congress that approved the same. 40 That which is to-day the second part of article 29, was presented as article n? 34 in the session of August 23d., 1856, and the Committee withdrew it with the consent of Con- gress.* Having again been presented without any alteration in the session of th e21st. of the following November, it was fully discussed, and then those who sustained that the consti- tutional faculties of the Government were sufficient in all cases to confront any circumstances whatever and who were ably represented by Mr. Zarco, combatted the said article most vigourously, because they thought it inclosed the dan- ger of a dictatorship, a dictatorship which for certain extreme cases was defended during the course of the debate by such illustrious republicans as Ocampo and Arriaga. ^ A vote having been taken, the said article was approved, with an amendment proposed by Mr. Ocampo to the effect that the word ^'individual" should be placed before the word '* guarantees,"^ by sixty -eight votes against twelve in the session of November 22. '* 1 Zarco, "History of the Constituent Congress," vol. 11, p. 23!. 2 The words to which 1 refer, uttered by Messrs. Ocampo and Arriaga in reply to the arguments set forth by Mr. Zarco, are the following: « Mr. Ocam- po, in reply to Mr, Ruiz, said. . . . the representation of Congress is as legiti- mate as that of the State Legislatures and as that of the Gouvernment ivhcn the latter is invested with extraordinary powers, » This same gentleman afterwards said, employing a medical simile: «that the normal condition of man is when he enjoys perfect health, that the law is the hygienic treatment, the cases of public disturbance are the dineasos and the dictatorship the remedy. » Mr. Arriaga said, « that respecting the cases of conspirators it is necessary that besides the powers of tho law there be an extraordi^iary j)OweT capable of preserving and saving social order. » And fur- ther on he added: «This article (the one luidGr discussion, which forms now tho first part of article 1-9), is a social necessity, but it is likewise a serious pe- ril, and for this reason the deputies who may wish to establish in tho same certain prudent restrictions should hasten to offer thorn in tho form of amend - ments. » In conclusion ho 8.'dd: that "in order to cure public infirmities ox- maladies, the homeopathic system should be adopted to a certain extent. » Zarco's "History of tho Constituent Congress :» vol, II, pp. 5G3, 56« and 561). 3 The work and volume already' quoted, p. 569. 4 The work and volume already quoted, p. 679. 41 Before proceeding any further it is well to make the follow- ing remark. Of the opposite opinions which were defended during the course of the del)ate, which are those that were approved by Congress in the final and definite vote above re- ferred to? Tliose that were defended by Mr. Zarco, who combatted the dictatorship in any form, that which arises from a revolution as well as the one established by constitu- tional precepts, or the opinions sustained by ]\Iessrs. Ocampo and Arriaga who acknowledge the necessity of constitutional dictatorships! Those who were opposed to the said article only had twelve votes, whilst the defenders of the same were supported by sixty -eight votes. Unanswerable as is this numerical result, the following truth is likewise conclusive when thoroughly investigated. Those who quote Mr. Zarco 's words as the expression of opinion of the mayority of the House, do not properly inter- pret, nor do they understand the spirit and significance of the said discussion in Congress. The said words of Mr. Zarco were so far from expressing the opinion of the House, that his t)wn private views upon the subject were rejected by the majority of the same. With this simple remark, the many arguments ofi'ered against the extraordinary powers, by quoting the words uttered by the deputies who opposed the said powers, words and opinions which Congress rejected, become com- pletely destroyed. The discourse of a deputy can only be quoted as a proof of the opinion which prevails in Congress when at least the majority of the members of the latter accept and sanction the opinions set forth in the said discourse. Having stated the above, I will now proceed with the his- tory of article 29. The approbation of the first part of the said article, that which refers to the suspension of individual gua- rantees, did not satisfy the majority of Congress. The latter, 4^ knoAving that the revolutionary element rises without having to contend with any legal obstacle, and fights hand to hand with the Government who is subject to constitutional restric- tions, and not wishing that in that unequal contest the Cons- titution should perish, (Congress were then beginning to feel the powerful eiforts made by 'the Church party with the object of destroying the fundamental Code), they sought for an efficacious remedy for so grave a peril, convinced as they were that the suspension of the guarantees alone would not strengthen the Government as much as it was to be desi- red in certain dangerous crises. Prompted by this idea, Mr. Olvera presented to Congress on the 9th. of December, as an addition to article 30, a bill in reference to dictatorship; and although the latter was by no means a satisfactory biU, it was nevertheless referred to the Committee on Constitu- tion. The latter did not accept the bill such as its author had presented it, but they accepted the idea which gave rise to the same; the Committee acknowledged the fact that during a formidable civil war, as that which then threatened the libe- ral party, that during a foreign invasion when Congress might be unable to act, the laws, the institutions, the sovereignty and independence of the Eepublic should not be allowed to succumb for the want of the necessary strength, power and authorization vested in the Executive, so as to enable the lat- ter to face any difficult circumstances; and the same Commit- tee then submitted to Congress as an addition or amendment to article 34, which is now article 29, that which Hterally appears at present in the second part of the latter article. In the session of the 24th. of February 1857 the said amendment was passed by a vote of fifty -two yeas against twenty -eight noes.* It is to be regretted that owing to the 1 Zarco's « History of the Constituent Congress,* vol. II, p. 640. 43 Want of time there should have been no discussion upon this point; but the official and authentic documents which are ex- tant suffice to prove that the bill on dictatorship offered by- Mr. 01 vera was the real origin of the said amendment; that the serious considerations to which I have just referred were those that induced Congress to believe that neither the ordi- nary powers of the Executive nor the suspension of guaran- tees were sufficient in certain cases to control difficult cir- cumstances, but that other authorizations might become ne- cessary, as many of those authorizations conferred upon the Government as Congress might deem convenient in order to overcome the said difficulties. With this view, with this in- tention, did the fifty -two deputies who composed the majo- rity of the House approve the said amendment. * I know very well that the enemies of the ample powers I The journal of the said session in the part which refers to the above, con- tains the following: « Session of the 24th. of January 1857. . . . An addition to article 34 which was offered by the same Committee, was also placed before the House. » The said addition or amendment is as follows: «If the suspension should take place during the session of Congress, the latter shall grant the authorizations which may be deemed necessary so as to enable the Executive to face the situation. Should the suspension take place during recess, the standing committee shall convoke Congress without delaj^ for their advice and action. » The above was put to a vote without discussion and passed by the fifty-two votes of the following gentlemen : Aguado, Anaya, Hermosillo, Aranda Albi- no, Arias, Arriaga, Arrioja, Auza, Banuet, Baranda, Bnenrostro Manuel, Cas- tellano Matias, Castillo Velasco, Cerqueda, Cortes Esperza,*,Degonado Santos, Echaiz, EmpSran, Estrada Julian, Fernandez Alfaro, Gamboa, Garcfa Anaya, Garza Melo, Guerrero, Guzman, Ibarra Francisco, Ibarra Juan N., Iniestra, Iturbide, Langlois, Lazo Estrada, L6pez deNava, Mariscal,'Mata MontaQe?, Morales, Moreno, Ochoa Santos, Olvera, Payr6, Ramirez Mariano, Ramirez Mateo, Reyes Robles, Rojas Jesus, Romero Felix, Rosas, Sanchez Jos6 Ma- riano, Torres Aranda, Vallarta, Vargas, Vega and ■ Villagran ; against the twenty -eight votes of the following gentlemen: Alcaraz, Barrera Eulogio, Contreras Elizalde, Degollado Joaquin, Del Rio, Diaz Barriga, Escudero An- onio, Garcfa de Arellano, Garcfa Granados, G6mez Farfas Benito, Gonzalez Paez, Goytia, Irigoyen, Larraz^bal, L6mus, Llano, MuQoz Jos6 Eligio, Orte- ga, Pefia y Barragan, Pefia y Ramirez, Prleto, Quijano, Ramirez Ignacio, Re- villa, Sierra Ignacio, Villalobos, Zarco and Zavala.* 44 come to the conclusion from the fact that the Committee on Constitution did not accept Mr. Olvera^s bill, that Congress rejected the idea of delegating the Legislative Power; but is this a logical conclusion! It is true that the triumvirate sug- gested by Mr. Olvera was not accepted: but are we to infer from this that Congress did not approve the idea of conferring upon the Executive all the authorizations which might be deemed necessary in order to face the situation? Historical truths protest against such a conclusion, so that it becomes unnecessary to have the same condemned by the wellknown rules of logic. And to allege now that in the said constitutio- nal precept the idea of delegating the legislative power was rejected, and that an express text authorizing such a delega- tion does not exist, etc., etc., is as mucli as to accuse the constituent deputies of not understanding their native lan- guage, and that they ignored, upon approving the following literal text: ". . . . the latter shall grant all the authorizations they may deem necessary so as to enable the Executive to face the situation," they did not approve of the idea that the President might even legislate whenever this authorization should be deemed necessary owing to the seriousness of the dangers which, in the opinion of Congress, could not be otherwise confronted. Far from deserving these reproaches, the two most remarkable events of our modern history, — the war of Reform and the French war, — fully justify the fore- sight of the constituent deputies. Allow me to say this, not- withstanding the fact that I was one of the deputies who voted in favor of the second part of article 29, approving the natural signification it contains, that is, with the understanding that the President might be authorized to issue laws, whenever it should be so required by the welfare and safety of the Re- public. 45 The historical study I have just made, clearly proves the following iTuth : the constituent Congress thought that besi- des the suspension of guarantees, it might become necessaty under certain exceptional circumstances to confer upon the Grovernment some extraordinary powers in order to prevent that the Constitution itself should be nothing but a mere sheet of paper that might be torn with the utmost impunity by the first bold and daring revolutionist who might present himself, and therefore the said Congress sanctioned expressly and in the most conclusive manner the theory of the extraor- dinary powers, authorizing Congress to grant those which might be deemed necessary so as to enable the Executive to face the situation, in view of the extent and seriousness of the dangers that threaten the country and her institutions. In order to ignore this historical truth it were necessary even to ignore the contents of the journal of the session of January 24th., 1857; it were necessary to deny the value and mean- ing of the words referred to or to erase from our fundamental Code the second part of article 29. i> I have a profound respect for the opiilions of others, par- ticularly when they are entertained and supported by per- sons whose talent and learning are notorious and whose sin- cerity cannot be doubted. And when my conscience prompts me to differ from those opinions, I deem it a duty to reply at least to the principal arguments that support the same. Those who object to the delegation of the Legislative Power in the President, present as a precedent which ought to be adhered to by all subsequent congresses, the conduct which was ob- 46 served by the first constitutional Congress, and they allege that the latter were apposed to the said delegation and offer other arguments in support of their opinions. I must in my reply take this point into consideration. President Comonfort, who was never a friend of the Cons- titution, and who was wont to govern without any restrictions whatever, considered the constitutional restrictions placed in the way of the Executive as an attack upon that which he called ^Hhe principle of authority, " and this he sustained prompted by the prejudiced idea that it was impossible to govern with the Constitution, and hence he asked of the first Congress, on October 10th., 1857, to declare that 'Hhe Pre- sident of the Republic should have discretional poivers in all that refers to the guarantees granted by the Constitution," and furthermore 'Hhat through the delegation of Congress the Executive should be fully authorized to arrange and re- gulate the finances of the Federation and to dispose of the State forces and to organize those which he might deem necessa- ry." * To ask for this was to ask for the unlimited dictatorship with which the said imprudent President appeared to be so well satisfied; that dictatorship which was created by article 3 of the Plan of Ayutla. To solicit such an authorization was not to ask for such authorizations are were necessary in order to face a situation more or less dangerous, but it was asking the suppression of the Constitution, an utter disregard for the fundamental Code. Discretional powers in matters pertain- ing to individual guarantees ! The mere fact of desiring such a thing, proved that there was no will to understand the Constitution. Powers to arrange and regulate the finances of the Federation ! . . . . The mere fact of expressing such an idea, showed plainly that there was no desire to act consti- 1 History of the first Constitutional Congress, p. 88. 47 tutionally, because the authorizations which can be granted to the Executive shall only serve the President so as to ena- ble him to face a difficult and exceptional situation, but not to regulate, as can only be done in times of peace and order, the national finances. Therefore, there was a most flagrant contradiction between the said petition and the letter and spirit of the second part of article 29. Congress granted nothing of this, and they did well, be- cause what was asked of that body could not, and should not be granted. Thus Congress placed themselves in a ground strictly constitutional, and suspended not all but only some of the individual guarantees, and conferred upon the Presi- dent the authorizations that the said hody deemed necessary so as to enable the Executive to face the situation, ^ Did the said authorizations fill their object! Or, did Congress, distrusting the loyalty of the President, refuse to grant the latter all those that could have been granted? These are questions which refer to political opinions, and their discussion here would be out of place. But it is important to ascertain whether the said Congress did not wish to grant, or whether they actually refused to grant, the authorizations which empowered the Executive to legislate. After having suspended certain guarantees, the first law of November 6, 1857, provided the following: *^The Executive shall issue the regulations and orders relative to the said suspension whenever the same is to be made effec- tive." And the Executive, at the end of the same law, pu- blished the following which he termed a xwovision: "The freedom of the press remains for the present subject to the law of December 28, 1855." Before proceeding any farther, I beg to ask: to declare in force a law which has been repeal 1 Law of Norembor 0, 1857. Dublan's collection, rol. YII, pp. 625 and 626, 48 ed, is this not legislating? If Congress had not wished that th(B President should legislate, upon suspending the guaran- tee contained in article 7th. of the Constitution, they should have declared which of the many laws repealed respecting the press was to remain in force during the said suspension. But they did not do this, and they empowered the President to legislate, because the reenfbrcement of a law previously repealed is to legislate, even though the said measure be ter- med a regulation, an order or a provision. If the other provisions be analyzed with the same care, it will be seen at once that every one of them contains some legislative act, and that too of the most serious nature. To hold that in the regulations of a law serious penalties may be decreed, such as solitary confinement in prison, exile, etc., is to be incapable of distinguishing the difference there is between a regulation of any kind and a penal law. Had the first Congress been of opinion that the legislative power could not be delegated, would they have allowed Pre- sident Comonfort to issue those regulations of the law of No- vember 6th I If Congress had entertained such an opinion, it is certain that the said body would have issued the excep- tional laws which were to remain in force provisionally dur- ing the suspension of the guarantees. But that body did not do this, and they delegated to the President the power of le- gislating upon certain matters. But, furthermore, in the other law, also of November Gtk, Congress authorized the Executive to obtain up to six mil- lions of dollars, giving as a guaranty for the payment of the said sum the part of the revenues which was unburdened, *^and also to dictate such measures as might be deemed ne- cessary in order to regulate the receipt of the said revenues, without, however, being empowered to rent out the same." 49 And I again ask, in order to do this, are regulations, orders and provisions sufficient? Who can ignore that in order to regulate the collection of taxes it becomes necessary to le- gislate, and to legislste upon a difficult subject? Who is there that imagines that in order to regulate the floating debt it is unnecessary to pass certain laws which shall determine the acknowledgment, liquidation and payment of the said debt? When Congress thus authorized the President, could it have been with the understanding that those powers might be made use of without legislating? What has been stated is sufficient: it is clear that the first Congress allowed the Executive to legislate: furthermore, that in the very nature of the authorizations which were con- ferred upon him there was included beyond any doubt wha- tever the power to legislate upon certain matters. In view of all this, I think that the assertion to the effisct that the first Congress interpreted article 29 in the sense that the legisla- tive power cannot be delegated, is wholly incorrect. There is still another remark to be made : even supposing that the said Congress did not intend to confer such a dele- gation, would this be sufficient in order to refer to that body as a model and to censure all other Congresses who should do anything to the contrary? Can the application which, un der certain given circumstances, is attributed by any Con- gress to article 29, be considered as a rule for the interpre- tation of the Constitution? In order to sustain this it were necessary that all the difficult situations, that all the poli- tical crises should be of the same identical seriousness. For this it were necessary that the situation of the country in No- vember, 1857, when the reactionary party founded all their principal hopes in the hesitation of the President and in his antipathy to the Constitution, had been the same as the 8(f one in which the country found itself in June, 1863, when the capital was occupied by a foreign army, the Congress of the Union dissolved, the President a fugitive, and when the danger which threatened the Eepublic had reached its highest point. To hold that because in 1857 Congress did not consider it necessary that the President should legislate, which is untrue as I have shown, the Congi*ess of 1863 could not and should not believe in such a necessity, is so unreaso- nable that it cannot be sustained. But since in the task I have undertaken I have been obli- ged to refer to the history of the first Congress in 1857, in order to examine impartially w^hat the said body did, it is well to go somewhat farther and see what happened afterwards. Influenced by the prejudices which animated him. President Comonfort finally rebelled against the Constitution. The fa- tal coiq:) d^JEtat of December 17, 1857, ignored and disa- vowed the existence of the fundamental Code. The instiga- tors of a military mob thought they might become masters of the destinies of Mexico, although our history has plainly taught us, by means of the most eloquent examples, that public power cannot be thus attained. When everything appeared to have come to an end, Pre- sident Juarez announced to the whole Nation, from Vera- cruz that the constitutional Government still existed. But that government in the said port was destitute of everything, it did not even have a Congress of whom it might ask for the necessary authorizations with which to face the situation. What did the Government do then? Did it per chance allow the Constitutional cause to perish because it could not issue a single law, because there was no one who could legislate? Instead of doing this, the said Government issued on the 7 th. of April, 1858, the following decree which was authorized 51 by the illustrious Ocampo: ^^The Commander-in-Chief of the Federal Army is hereby fully authorized and invested with ample powers in all that pertains to the finance and war departments, to dictate all those measures which may be deemed necessary in order to reestabhsh the democratic ins- titutions in the country." Invested with those powers which were frequently used for the purpose of legislating, Mr. De- gollado, the hero of the war of Reform, went to the interior and improvised armies, and through the force of perseveran- ce he at last compelled victory to abandon the fortunes of Mi- ramon. Meantime, President Juarez in Veracruz not only legis- lated upon everything the war and the situation required, but to every triumph achieved by the reactionary party he res- ponded with one of those law^s which through antonomasia are called of Eeform. Well Mien, is there any one who pretends to consider as constitutional infractions all the acts of the Government and of the Military Commanders to whose efforts and to the use of the extraordinary powers was due the restoration of the Constitution? Would the Supreme Court grant amparo against all the acts which emanated from those laws of Re- form? would they declare null and void the sales which were made of the property of the Clergy, as well as the civil mar- riages, etc., etc., simply because those laws which were issued by virtue of extraordinary powers are null, because accord- ing to article 50 of the Constitution the President can never and at no time legislate! ... As regards myself, I can assure you that I shall never hold anyting of the kind, because I tliink that the Constitution in certain cases legalizes the said powers. We must conclude from the above that the historical pre- 52 cedents, that the acts which then occurred, after the Cons- titution began to take effect, condemn the theory which I am combatting. E In their endeavor to prove that the Executive Power can never exercise legislative faculties, the defenders of the latter opinion bring in support of the same the political institutions and the history of other peoples, including those of ancient times. I shall not even refer to Eome, the former Mistress of the world, and this for one sole reason: because the his- torical and juridical study of the Eoman dictatorship would bring us to no practical conclusions in the constitutional ques- tion we are now discussing, inasmuch as there is an immense diiference between the political conditions of modern society and that of the Roman Republic. But this same f-eason in- duces me to pause and examine briefly what is passing in the United States of the North. When it has been asserted that not even during the gigantic war of 1861 to 1865 did the Pre- sident of the said Republic legislate for a single day; when we are told that although it is true that we have copied the American Constitution, we have only its letter but not its spirit, because we lack the education and virtues possessed by that great people, there exists reason enough for us to examine the history and the Constitution of the said coun- try, in order to ascertain to which of the two systems here discussed do the American institutions give their respectable support. That the Executive Power should exercise no extraordi- nary faculties in normal times, is so clear and natural a fact that no one disputes it. Therefore, in order to ascertain how 53 the Americans understand their Constitution regarding the point in question, we must fix our attention not upon the long periods of peace which the great Eepubhc has enjoyed, but upon the occasions when she has suiFered the calamities of war. Let us commence with her war for independence. The campaign of 1776 had been quite unfavorable for the American cause. Washington, taught by experience, address- ed Congress a memorable document in which he stated that if new vigor and strength were not imparted to the military system in order to prosecute the campaign, all hope of success should be abandoned. To the said statements of that illus- trious man, Congress responded with a decree appointing him in reality a mihtary dictator, and granting him, ^'full, ample and complete powers" to organize the army, to appoint officers even of the rank of Brigadier Generals, to fix their pay, to call out the Militia of the States, to arrest and imprison all parties who should oppose the American cause, etc., etc. That which according to the laws and practices of the United States no body could do except Congress, Washington, by virtue of the said decree, was authorized to do during a pe- riod of six months. ^ This precedent, which may properly be called classical, is the first presented to us by the History of the United States. And it is not the only one that occurred during the said pe- riod. One of the State Legislatures also granted extraordi- nary powers to the Governor, so as to enable the latter to confront the difficulties of the war. '^Governor Eutledge," says the historian Spencer, alluding to the events of the war of 1780, ^ Vas invested with dictatorial powers and authorized to do aU that was necessary for the public welfare, except to deprive any citizen of his life without trial. The Assembly, I Spencer's « History of the United States,') vol. I, pp. 455 and 456. 54 after delegating to the Governor this power, which was to last up to ten days after their next reunion, adjourned."* Let us now devote our attention to another epoch: to that of the war with England in 1812. Who ignores what General Jackson thought necessary to do, and what he really did, for the defense of New Orleans in 1814? He proclaimed martial law, but with such severity that perhaps he may not be for- given for it by the history of a free people,^ and notwithstand- ing this, the Governement and the Congress of the Union, in spite of the eloquence of Henry Clay, approved the conduct of the said General, several years after the war had taken place, that is, in 1819.^ But the period of the history which we are now consult- ing that affords more illustrations of the point I am endea- voring to clear up, is that of the War of Secession. There are so many acts of the said period which prove that President Lincoln made use of extra -constitutional powers, so many of his acts and proclamations which show that he even legislated upon certain matters which the Federal Congress themselves were forbidden to touch, that it were perhaps too tedious and too lengthy to quote them all. From the beginning of the war, the said President autho- rized General Scott to suspend the habeas corpus ^ an authori- zation which was not only carried out, but was defended be- fore Congress by the President himself with the following remarkable words: ^^The Constitution provides that the ha- heas corpus shall not be suspended excepting when, in cases of invasion or rebellion, pubhc safety should so require it. . . . The Constitution does not provide who is to decree the said 1 spencer's « History of the United States," vol. II, p. 71. 2 The same work, vol. Ill, p. 280. 3 Spencer's "History of the United States,)) vol. Ill, p. 219. 55 suspension, and as the said provision was clearly intended for a dangerous situation, it cannot be supposed that the authors of the Constitution desired the peril to increase until Con- gress might be able to meet, especially when the efforts of the rebellion tend to prevent the said meeting. " * Among the various legislative acts, which properly pertain to Congress, and which could be quoted as having been performed by Pre- sident Lincoln, those that mostly call our attention on account of their notorious seriousness, are his proclamations of the 19th. and 27tli. of April, 1861, which declared the state of war, and established tlie blockade in the poi-ts of the Sou- thern States, ^ when, according to the Constitution, Congress only has the power "to declare war, to issue letters of mar- que and to establish regulations for the capture of prizes or spoils in land and sea."^ Congress, far from disapproving these acts as unconstitutional, rendered the same valid, re- solving on August 6 of the same year that "all the acts, pro- clamations, and orders of the President of the United States after the 4th. of March, 1861, respecting the Army and Navy of the United States and the calling out of the States' Mili- tia, are hereby in all respects approved and legalized and re- validated with the same eifect as if they had been ordered and executed under the previous and express authority and direction of the Congress of the United States."''* The said Congress did then, what no Mexican Congress has ever do- ne : that is to say, they granted to the President of the Re- public legislative powers with a retroactive effect. "' * I President Lincoln's "Message to Congress, July, 1851. ij United States Statutes at largo, vol. XII, pp. 1259 and 1260, Z Article I, Section 8tli. of the United States Federal Constitution. 4 United States Statutes at large, vol. XII, p. 326. 5 In 1863 the validity of the blokade decreed in the proclamations of the i9th. and 27th. of April, 1861, was discussed at length in the Supreme Court, and Mr. Kelson, Magistrate of the said Tribunal, said, with regard to this 56 I shall not relate all what President Lincoln did afterwards, exercising the powers of war in an extra- constitutional man- ner, at times taking possession of the telegraphic messages in the telegraph -offices, ^4n order to discover who were the sympathizers of the Confederates,"' at others destroying the liberty of the press, ^ or suspending the habeas corpus j and ordering arrests without the constitutional requisites, &c.^ I shall only call attention to the follomng fact: Congress, in December, 1862, approved once more all what had previous- ly been done ; they sanctioned the conduct of the President and conferred upon \\mifiill authority to suspend the habeas corpus whenever in his opinion public safety should so re- quire it/ Is anything more needed? Then there exists ano- ther Act of Congress which ratifies and legalizes the previous extra -constitutional acts of the President; viz: the Act of the. 2d. of March, 1867, which not only confirmed but also pro- vided that no Court of the United States should be able to take cognizance of the matters resolved upon by virtue of the said acts of the President. * point: "Congress on the 6th. of August, 18G2, passed an Act confirming aU acts, proclamations and orders of the President after the 4th. of March. 1861, respecting the army and navy, and legalizing them, so far as was competent for that body, and it has heen suggested, but scarcely argued, that this legis- lation on the subject had the effect to bring into existence an ex post facto civil war with all the rights of capture and confiscation jwrc belli, from the date re- ferred to The instance of the seizure of the Dutch ships in 1S03 by Great Britain before the war, and confiscation after the declaration of war which is well known, is referred to as an authority. But there the ships were seized by the war power, through orders of the government, the seizure being a partial exercise of that power, and which was soon after exercised in full. The precedent is one which has not received the approbation of jurists and is not to be followed. See W. B. Lawrence, 2d. edition, Wheaton's elements of Int. Law, p. 4, ch. 1, sec. 11 and note. But admitting its full weight, it af- fords no authority in the present case. » Whiting, War-Powers under Consti- tution, 43d. ed. p. 155. 1 Spencer's « History of the United States, vol. IV, p. 31 and note 2 Spencer's "History of the United States, vol. IV, p. 94. 3 Work quoted. 4 Spencer's « History of the United States, vol. IV, p. 9:iL " 5 United States Statutes at largo, vol. XIV, p. 462. If all this is not sufficient to sliow how Lincohi Jegistative authority, with and without the previous aiilfe^ri^^i , zation of Congress, I will quote some of his acts, his legisla- tion, I may term it, relative to slavery. Af\er the many and prolonged hesitations upon this point, on the 1st. of eJanuary, 1863, he issued his famous "Emancipation Proclamation'' declaring all the slaves of the Confederate States free fore- ver. * In support of this act of such transcendental importan- ce, an act which does honor to the civilization of the present century, Lincoln does not appeal to the Constitution, but to the justice of emancipation, to the military necessity whicli the Constitution recognizes, and also to the impartial judg- ment of the human race. But constitutionally speaking, and laying aside all philoso- phical and humanitarian considerations which ennoble Lin- coln's conduct, that act was not only legislating but it was legislating upon a matter which even the Federal Congress was forbidden to touch. And this is so true that at the be- ginning of the war, the Government had offered to respect slavery, as a private and domestic institution of the States;'"^ and so much so that afterwards, in 1864, Lincoln himself re- commended to Congress the constitutional amendment for the abolition of slavery, '' an amendment which was finally sanctioned on the 1st. of February, 1865, and is now the XIII of the Constitution. I trust to the eloquence of the above facts in order to as- certain whether there is any truth in the assertion to the effect that in the neighboring Republic the Executive Power has never exercised extraordinary faculties and that it has 1 Uuited States Statutes at large, vol. XII, p. 1208. 2 Spencer's History of the United States, vol. IV, p, 261 and Whiting's War -Powers under Constitution, 43d. ed., p. 393. 3 Tlie same work and volume already quoted, p. 60G. 58 never legislated. And the following remarkable circumstance should be borne in mind : in the said country Congress nevei* failed to convene, even in the darkest days of the war: the thirty-sixth up to the thirty -ninth congresses performed their functions regularly from 1861 to 1866. And in Mexico we know that since the 17th. of December, 1857, up to the 9th. of May, 1861, and afterwards from the 31st. of May, 1863, till December 8, 1867, it was impossible for the national re- presentation to meet. After the brief study I have just made of the American Institutions, I believe it opportune, I even think it necessary, in honor of our Constitution which has been so unjustly cen- sured, to offer an important remark. The American Constitu- tion contains no precept like article 29th. contained in ours: section 8th. of article 1st. only provides that the privilege of habeas corims may be suspended in cases of rebellion or in- vasion, but without stipulating what authority may decree the said suspension. And from this omission it has been sought to conclude that the President is authorized to decree the sa- me. I need scarcely allude to the superiority of the Mexican Constitution over the American upon this point. Neither does the American Constitution provide whether in certain dan- gerous crises can extraordinary authorizations be conferred upon the Executive; but the historical truth is that when their employment has become necessary they have been ma- de use of even as far as legislating upon matters which Con- gress itself was forbidden to resolve upon, the said omission in the constitutional text having been filled with reasons ta- ken from the very spirit of the Constitution as revealed in the preambles of the same, as also from International Law, or from the necessity of the self-defense of the people, who, upon approving their Constitution, could not for a moment 59 intend to sign their own death-warrant. In order to fill the gap which such an omission left in the Constitution, in order to satisfy the want of a precept like the one contained in our article 29, a work has been written in the United States, ot which forty -three editions have been published from 1862 to 1871. ^ This is a work which, in its endeavor to support the dictatorial powers of the President in time of war, arrives at conclusions which our public laws condemn; but the said work is a standing testimony of the fact that the Constitution which provides for certain abnormal and exceptional situa- tions, and which furnishes adequate resources in order to overcome the same, is far wiser than that which believes in a perpetual era of peace and in the regular exercise of the public powers. For us, who are the sincere friends and staunch partisans of the Constitution of 1857, it is very gratifying that the com- parative study of the two fundamental laws should lead us to the above forcible conclusion : but the greatest praise I can possibly bestow upon the Constitution of Mexico is to apply to its article 29 an idea of Mr. Whiting, the author of the said book, in reference to what he terms the « war -powers.)) If in the American Constitution there existed a precept like the one contained in the above mentioned article of the Mexi- can Constitution, we might say, by altering the words only but not the idea of Mr. Whiting, that the Southern States would not have rebelled; and that had they done so, notwith- standing the said article, the Federal Power could have crushed the rebeUion in its cradle.^ Let any one now pre- 1 War- Powers under Constitution of the United States by William Whi- ting. 2 If Southern rebels, with all their treasonable notions on the subject of State rights, had recognized and appreciated the War-Powers of the Union, it is not probable that they would have attempted armed rebellion. Had the 60 tend to commend as something perfect in the American Constitution, that which is nothing but a lamentable gap which ours does not contain, and which in the former has been filled with interpretations which, strictly speaking, are untenable I -F May 1, from the above statements, come to the conclusions which I have endeavored to establish! I think it possible: the said conclusions are as follows: the extraordinary powers which in 1863 were conferred upon President Juarez for the defense o( the national independence which was then threa- tened by the French war, authorizing him even so far as to conclude ti'eaties, were legitimate and constitutional: the law of the 16th. of August, 1863, which the said President issued for the punishment of the parties who had committed the cri- me of high treason, is a real and obHgatory law, which does not violate article 50 of the Constitution: this am-parOj there- fore, cannot be granted, because the act which has given rise to the same is founded upon a law issued hy the Executive. Upon concluding the long analysis which has accupied so much of my time with regard to the question of extraordinary powders, in order to found my opinion, which opinion, I re- gret to say, is contrary to a writ of execution issued by this loyal people of the country and the administration promptly assumed and with energy employed those powers, treason might have been strangled at its birth; and ifthe judicial department unbiassed by political proclivities of in- dividual judges, shall ultimately sanction a liberal and statesman -like cons- truction of the sovereign and belligerent rights of the people, under our Consti- tution, it will, by so doing, strengthen the power of our Government to defend itself against rebellion; it willincrease our confidence in the stability of the re- public, and it will become a new safeguard against the dangers of civil war. » War -Powers under Constitution, p. X. 61 Court, allow me to utter a few words respecting my perso- nal opinions. Can these lead any body to believe that I am a partisan of dictatorships or of tyrannical governments? Can any body charge me Avith having defended the abuses which have been perpetrated in our country under the shadow of the extraordinary powers! Can my words be interpreted as the eulogy of the crimes which certain Congresses have committed in granting ample powers to the President, solely with the object of forwarding partisan interests I . . . All this would be very unjust; because I most emphatically condemn those abuses, because I have deprecated the said crimes, when the abuse of the extraordinary powers and the syste- matic pressure brought to bear upon the public vote have sought to establish upon the ruins of the constitutional vdgi- me, a perpetual and unrestraimed dictatorship ! . . . . But deprecating as I do tlie said abuses, the said crimes, I cannot out of simple hatred towards the same and much less as a Magistrate, disavow nor ignore a constitutional pre- eept which was written for such trying times as those of the war of reform and of the French intervention. Admitting as I do that the extraordinary powers have been granted too often, deprecating that they should have been so ample upon many occasions, reaching so far as to invade the local regime of the States, disapproving the nonresponsibility with which they have been employed, sincejcongresses do not take pains to examine the acts executed by virtue of the same, etc., etc., I cannot, notwithstanding all this, entertain even a single doubt respecting the legitimacy of the powers which sus- tained the war with France, and much less can I nor do I wish, to deprive my country in the future of the resources which article 29, so often quoted, which international law and even common sense itself, afford her for the defense of 6S her sovereignty and independence, should she unfortunately have to sustain another war. If the said article has been im- properly used, as cannot be doubted, even so far as employ- ing it as a v^eapon against our institutions, those abuses can in no manner justify the disavowal of a precept upon which greatly depends the preservation of the independence itself These explanations have become necessary in order to assu- me, as I do, the responsibility of my opinions such as they are. IV. But this amparo is solicited upon other grounds. I cannot abstain from examining the latter even though it be briefly, so as not to trespass upon the attention of the Magistrates who are listening to me. It is alleged that article 7th. of the law of August 16, which authorized the Council of ]\Iinisters to resolve upon all questions pertaining to confiscation, violates article 21 of the Constitution which only recognizes the judicial power as a competent authority to impose penalties such as is undoubt- edly the act of confiscation, concluding from this that article 50 has also been violated, inasmuch as the said article forbids the reunion of any two powers in a single person. This ar- gument can be very easily answered. The suspension of gua- rantees to which reference is made was so complete, and the authorizations conferred upon the Government were so am- ple, that they had no other limit but the one expressed in ar- ticle 4 of the law of October 27, 1862, enforced by that of May 27, 1863. The latter article says : a It is hereby declared that the Executive has no authority to interfere nor to resolve upon civil matters between private individuals, nor upon cri- 63 minal affairs tvhen the latter only refer to offences against pri- vate rights. » And as the offence of treason is by no means a criminal aifair of that nature, but one that affects pubKc right, it is very clear that the said offence was not included in the exception of the law above referred to ; and from this we must conclude that during the war with France, the gua- rantees in question were suspended, and that therefore, upon this ground, the amparo should not be granted. But, it may be objected, that although all this is very true, it is no less true that the penalty of confiscation is always un- constitutional, because article 22 of the fundamental Code declares it abolished a f or ever , » a word which the legal text only employs upon that occasion, reproving the penalties which civilization and the philosoj)hy of penal laws have con- demned. This objection suggests at once the following cons- titutional question : can the guarantee conferred by the said article 22 be suspended, or does the word nforemr)) which it employs signify that confiscation can never be decreed, that the said guarantee can never be suspended! Article 29, in my opinion, resolves this question very clearly. The said ar- ticle provides that « the guarantees conferred by this Con^i- tution may be suspended, excepting those that assure the life of man. » From this precept we ma}^ conclude without any doubt whatever that the guarantee which forbids confisca- tion may likewise be suspended. But did Congress really suspend the said guarantee in 1863? I am inclined to think so, by virtue of the accord w^hich exists between the provisions of the laws of May 27, 1863, of October 27 and May 3, 1862 and of the llth. of December, 1861. The authorizations granted to the Execu- tive by the said laws are so ample and they restncted to such an extent the enjoyment of the constitutional guarantees, that 64 it cannot be doubted that the President had authority to de- cree the confiscation of property as a war- measure against the enemies of the RepubHc. The law of December 11, 1861, fully authorized the Exe- cutive to dictate all those measures which might be deemed convenient, wliitJi no otJier restriction but that of saving the in- dependence and integrity of the national territory, the form of government established by the Constitution and the prin- ciples and laws of Reform.)) The law^ of May 3d., 1862, ex- tended those authorizations with the above mentioned res- triction besides another one to the effect that the Executive should not be able to intervene in judicial questions arising among private individuals. The law of October 27, of the same year, confirmed all the provisions of those laws adding a new restriction to the efiect that the provisions of Title IV of the Constitution should not be infringed upon. And finally the law of May 27, 1863, extended again those authorizations mth the restrictions above mentioned, and fur- thermore delegated to the Executive the power of conclud- ing treaties, but without being authorized to admit of any intervention whatever. In view of these very ample autliorizations, who can en- tertain any doubt as to the power of President Juarez to de- cree in the law of August 16, 1863, the penalty of confisca- tion of the property belonging to the foreign enemy and to his allies? Even to entertain any scruples upon this point would not only be to ignore the laws I have referred to, but it would even be to deny to the Republic the rights which are granted to it by International Law, in case of war, for the defense of its independence and sovereignty. In order to better found my opinion upon this point, allow me to make at least a few brief remarks regarding it under 65 the light of international and constitutional law. I will begin by affirming that our Constitution, liberal and progressive as it is, upon abolishing confiscation forever^ did not by any means intend to establish a precept which should be ins- cribed in the Code of Nations, — it only excluded from our laws a penalty which is condemned by civilization. Of this truth, fraction XV of article 72 of the Constitution affords us an irrecusable testimony, because the said fraction authori- zes privateering and sanctions the legitimacy of the confisca- tion of spoils on land and sea. The said constitutional text recognizes the rights which war confers upon belHge rents according to the law of nations, and among the said rights is found that of capturing and confiscating the enemy's pro- perty. The Constitution could not establish international pre- cepts, it only sought to establish interior public laws for Mexico: it neither sought to limit with its provisions the rights which are granted to the Republic, as a sovereign and independent nation, by International Law, because it would be absurd and unreasonable to suppose that a people would be willing to accept a Constitution which would tend to des- troy their sovereignty* that they would be willing to surren- der the rights of independence, of equality and of self - defen- ce which all nations possess. If it should be sought to main- tain that some constitutional precept has limited a single one of those international rights, the forcible conclusion of this would be, that as the said precept is obligatory for the Mexi- cans and not for foreigners, the Government of Mexico would remain under very unequal conditions respecting those of other countries. This consideration, which is so evident and conclusive, induces me to believe that the theory which affirms that the 66 Constitution also prevails upon international alFairs, is false and exceedingly dangerous for the autonomy of Mexico ; be- cause it also affirms that during a foreign war Mexico cannot make use of reprisals, nor of retortion and that she can nei- ther confiscate nor, in a word, deny the enemy any of the individual guarantees. I profess a very different theory, that which teaches us that in matters of that kind it is not the constitutional but the international law that which defines the hmit of the sovereign rights of every country : I am of the opinion, like the illustrious John L. Adams, that: ((The war power is only limited by the laws and usages of nations. That power is formidable, and although strictly constitutional, it breaks down the barriers so carefully erected for the protec- tion of liberty, of property and of life. »* It is not now oppor- tune to discuss those theories; it suffices for me to have al- luded to the above considerations, even without taking into account the opinion of Adams wliich is the one I entertain, in order to conclude from them that article 22, in the part which refers to confiscation, is not apphcable to intc^riintioiial affairs. This is so true, so constitutional is the confiscation decreed by a belligerent against the property of the enemy, that frac^ tion XV of article 72 already quoted, leaves no doubt wha- tever upon the matter; it is so true that when Mexico was invited by France to adhere to the declaration of the Pleni- potentiaries of the Congress of Paris which abolished priva- teering in March, 1856,^ Mexico refused to do so, and she was perfectly right, because having no shipping nor navy, in case of war she would be deprived of the only means at her disposal for combatting the enemy's shipping and navy. Far 1 War -powers under Constitution, p. 77. 2 Mexican International Law, toI. I, p. 960. 67 from considering this resistance on the part of the Mexican Government as contrary to the Constitution in not wishing to abohsh privateering and the confiscation of the enemy's property captured at sea, I think that the said act merits the approbation of every Mexican. Having estabhshed these truths, which in my opinion cannot be doubted, there only remains to be resolved the following question: according to international law could Me- xico, during the war with France, decree and apply the pe- nalty of confiscation against her enemies? Could Mexico confiscate the property which was here, in the EepubHc, ac- quired by the unfortunate Archduke Maximilian, that which belonged to Marshall Bazaine, that which pertained to Al- monte? There are certain questions whose mere proposal re- solves them : certain truths whose sole enunciation demons- trates the same. Why quote authorities in order to prove that nations possess and have but very recently exercised the right to confiscate the enemy's property! Wliy invoke the names of able jurists, or call to mind the terrible laws of confisca- tion of the United States during their late war? ' I think it would be losing time to take pains to show all this. Holding as I do that Mexico could confiscate the propei% of her enemies during the foreign war, I desire to enter into a single explanation so that my opinions may not be erro- neously interpreted. I am very far from believing in the bar- barous nature of the Roman maxim, aAdversiis ostem ceterna autJioritas est, » and I do not even admit the doctrines of the ancient writers and jurists who declared that all the property belonging to the subjects of the unfriendly Power and found 1 Acts of the 6th. of August, 18GI (U. S. Stat, at large, vol. XII, p. 316), of July 17, 1862 ( Work and vol. quoted, p. 589 ) and of March 12, 1863 (Do. do. p. 820). ^8 within the territory of the other belhgerent could be confis- cated: on the contrary, I acknowledge and applaud the pro- gress made by International Law upon this point; and for this reason I do not by far pretend to hold that all the French property found within the Republic when the war broke out could have been confiscated. But who can fail to see the im- mense diiFerence which exists l^etween this and the case under discussion? Can any body fail to understand that the exception estabhshed in favor of peaceful foreigners, who perhaps were friends of Mexico, does not and cannot apply to her foes, to those who took part in the war, either using arms against her or intriguing in the European cabinets, that the latter might work against the independence of the Re public! Therefore, even though article 22 of the Constitution had not been suspended by the laws of which I have made men- tion, confiscation would in this case be legitimate, and can- not, on account of the amparo, be invalidated, because the said article has no appKcation in international matters and also because International Law authorizes that class of mea- sures which are only the exercise of the rights of war which the Constitution recognizes. However much I may be of the opinion that confiscation is a penalty not to be tolerated in our penal codes, an opinion which I have on another occa- sion defended before this Supreme Court, the present case comes under the provisions of other laws and cannot be con- sidered simply in view of our national penal laws. For these reasons I think that the am][)aro which has occupied so much of my time is neither to be granted on account of confiscation being a penalty which has been abolished amongst us. I must now end my long task, although with the fear that I have trespassed too much upon the attention of this high 69 Tribunal. Let my apology for this, however, be the desire I have had of founding tlie vote I am about to cast against the amparo which has been solicited in this very serious subject. Opinion of Magistrate Bfiiitisii. Magistrate Bautista said: that after having heard the ad- dresses delivered by the able Mr. Montes and by the Pre- sident of the Court, it might be considered as temerity on the part of the speaker to address the said Court, with the object perhaps of combatting one of. those addresses, but the necessity of complying with his duty and of founding his vote, compels him to make a few remarks, stating however, beforehand that he has not devoted any study to the subject with which he was not acquainted until to-day, and that far from entertaining any sympathies for the traitors, he consi- ders them as great criminals of the firgt rank, and believes that no penalty is sufficiently severe for the punishment of the said crime in our penal code. But betwefen this and the viola- tion of the constitutional precepts there is a profound abyss, and the speaker will never in any manner contribute towards the discredit of those precepts, notwithstanding the many abuses which have been committed in their name. The address of Mr. Montes is eminently constitutional, and the speaker accepts it in all its parts, and therefore vnth- holds from repeating any of the arguments contained in the same: and respecting that of Chief- Justice Vallarta, Mr. Bau- tista said: <(I deem it worthy of being published, because it is a lengthy treatise formed during many days, in \aew of the necessary documents and of the most respectable authorities; it embraces vital questions for the country, which have been 70 treated with ability and erudition; it is even eloquent, and for all these reasons it merits my respect; but it is not cons- titutional, and here, in this precinct, in the Supreme Court of Justice, the Mexican Constitution of February 5, 1857, is the most important book in the world, and the history of other nations and the best writers on public and constitutional law occupy a secondary place. For these reasons, and supported by our fundamental Code, allow me to say a few words res- pecting the above mentioned remarkable address, and tho- se words will serve me in order to found my vote, since it may not be possible to attain any other end in the difficult task I am about to undertake. Our Chief- Justice presents as the principal ground for his address, the law of extraordinary powers of May 27, 1863, declaring the same strictly constitutional, and thus comes to several hasty and absurd conclusions, and amongst these ] find that which asserts that one or more powers may on some occasions be vested in a single person or corporation, and that the legislative power may be vested in an individual, and also that by virtue of the precepts of article 29 of the Constitu- tion, Congress may delegate to the Executive the iliculty of legislating. Let us see what article 29 says: (dn cases of m- vasion or serious disturbances of the public peace, or any others that may place society in great peril or danger, the President of the Eepubhc only, with the concurrence of the Council of Ministers and with the approbation of the Con- gress of the Union, and during the recess of the latter with that of the permanent or standing committee, may suspend the guarantees granted by this Constitution, excepting those which assure the life of man: but he shall do so for a hmited period, by means of general measures, and in such a manner that the suspension shall not aifect any determined party Ij I ^•^ the suspension take place during the sessioi^eSfJJ^cnigxess, latter shall grant the authorizations they may deem ne€jegS£uy so as to enable the.Executive to face the situation. If the sus- pension occur during recess, the standing Committee shall convoke Congress for their advice and action. » Thus it is seen that this article did not omit the case of an invasion, but that it foresaw and provided for the same, and even then its desire was that upon the suspension of certain guarantees, Congress, and Congress only, should grant to the Executive the authorizations they might deem necessary so as to enable the former to face the situation. And therefore that law which conferred such unlimited powers upon the Executive is not constitutional, because it did not adhere to the express text of article 29. On the other hand, this question is not a matter of form but a matter guarantees, which are the basis and object of our institutions; and if the said article 29 desired at all events to attend to the salvation of the country and to furnish public power with all the authorizations which might be deemed necessary precisely for a case of foreign invasion, which is the most serious that may occur, it did not forget the life of man and all the other precepts which form the basis of our insti- tutions. Well then, upon the suspension of some of the gua- rantees, not in an arbitrary manner, but when necessity so re- quires it, it is natural that the autorizations shall correspond to the suspension of the said guarantees; and thus, should soldiers be needed, the guarantee contained in article 5 is suspended and recruiting by force is authorized; if money be required, the guarantees contained in article 27 and in frac- tion 2d. oF article 31 are suspended, and in this manner all the money needed can be obtained, and the same thing may be said of the other guarantees. 72 In the harmony Avhich should ever exist between the Le- gislative and Executive Powers, and notwithstanding the provisions of the said article 29, the latter power addresses iniciatives to Congress regarding the suspension of certain guarantees and asks for the authorizations that may be deem- ed necessary, and then Congress grants them; but those authorizations never have included the guarantees not sus- pended, and much less can it be inferred that Congress dele- gates all the power to legislate upon the Executive, because this is very far from being included in the authorizations to which the said article refers. The former is in conformity with the constitutional text; the said authorizations, however numerous they may be or however extensive, do not embrace all the power to legislate ; they are merely the basis of the powers which Congress may deem necessary so as to enable the Executive to face the situation, and furthermore their object is to empower the said Executive to dictate, within the limits of those authorizations, all the measures that may be deemed convenient; and what is still of far more impor- tance, viz : that the people may become acquainted with the said authorizations so that the Executive may not go beyoud the limits of the same in employing them, availing himself of the extraordinary powers conferred by Congress. From the express tenor of the said article, we must (iome to the conclusion that Congress cannot delegate upon the Executive all the power to legislate, because this would be in open violation of the provisions of article 50, and also because article 29 empowers the said body to confer upon the Execu- tive certain authorizations, after the suspension of some of the guarantees, and this is quite different from delegating the whole of the power to legislate. The law of extraordinary powers of May 27, 1863, which 73 authorized the Executive in such au unlimited manner to confront the situation, was an especial law, the effect perhaps of fear or of pure^patiiotism under the circumstances, but it was not a constitutional kiw, because it did not conform with the precepts of the said article 29, and for these reasons i1 cannot be invoked at all in the study of constitutional law, nor can it serve the President of the Court in support of some of his opinions respecting the idea that the Executive may legislate, and that Congress nmv d^lpo^ate upon the former all the legislative power. Neither can it be said that the great respect we entertain towards our Constitution can endanger the national indepen- dence, if the Executive lack the necessary authorizations with which to defend the same; because such a case is im- possible, since our Constitution is strong enough in itself and provides fully and furnishes the resources and authorizations with which to combat any invasion; so that if at any time wc are vanquished, it will be on account of our misfortunes or of our weakness, but not because our Constitution has left any gap, since with wisdom and forethought it has provided for such an em(^rgency. What has happened hitherto is that there li'as been no desire to comply with article 29 of the Constitution; it has been misinterpreted and a different sense has been given to it at times, so as to form dictatorships even in cases that were not included witlnn the text of the said article; and afterwards those abuses are offered as a basis in order to arrive at conclusions which are not and never can be strictly constitutional. I will not sustain that our Constitution is a pertect work, when this is impossible in all human affairs; but in this case I think that it is disparaged by those who appeal to extraor- 10 74 dinary means Avlien those that it provides for cases of inva- sion are so ample and fully suffice to overcome any situa- tion. On the other hand this law was t© last, according to its ex- press text, until thirty days after the reunion of Congress, or before if the tvar ivitli France should come to an end, and as Congress did not meet again until the latter part of 1867, it is clear that the said law remained in force until February, 1867, when the war with France came to an end and the invading army abandoned the national territory. Our President believes, nevertheless, that the war lasted even after the months of August and September of the same year during which was decreed and carried into execution the penalty of confiscation on the house in question, because France did not pass a law, declaring that the war had come to an end nor was any treaty of peace concluded, which is one of the means of ending war. I think that the invasion by France which commenced de facto without any previous de- claration of war by means of a law, terminated likewise ipso facto the moment the French army abandoned the national territory after having suspended hostilities, there having been no necessity for the passage of any law making the said de- claration, and much less was there any necessity for the con- clusion of a treaty of peace, and it might be said that since that time up to tbe present war existed with France, and this is an inadmissable absurdity. It is true that very respectable authors state that this is the means of putting an end to war between two nations; but over and above those authors I have the Mexican law which provided that the ample faculties should last until the war with France should come to an end, without saying any- thing regarding a treaty of peace, which is something quite 75 different since nations have a perfect right to conclude them or not, and they need not be a necessary consequence of war The result, therefore, is that the war with France ended ipso facto in the same manner as it began, and that it ondpfl in February, 1867. Let it be observed, furthermore, that the guarantee con- tained in article 22 of tlie Constitution which prohibits the confiscation of property, was not suspended by the laws of extraordinary and unlimited powers, and that for this reason it may be held that the Executive could do nothing against the said guarantee, because it prevailed and was in full force notwithstanding the unlimited powers ; but even admitting that, by virtue of those unlimited faculties or of the war- powers, or above all, for the salvation of the country, the Executive could impose the penality of confiscation, doing away with all consideration respecting its unconstitutionality, in that case his competency was derived from those faculties, because outside of the latter it were useless to look for the former; and as those faculties ended in February, 1867, as has been shown, it is evident that during the months of Au- gust and September of the same year, in which the said pe- nalty was decreed and carried into effect, the Executive lacked authority for the purpose, because the Republic had saved her autonomy and independence and the Constitution had recovered its full force and vigor, and then the said unli- mited faculties no longer existed, but in their stead there prevailed article 128 of the Constitution which says: ((This Constitution shall lose none of its force or vigor, even though its observance be interrupted on account of any rebellion. In case that on account of any pubHc disturbance there shoidd be established a government contrary to the principles it contains, so soon as the people recover their libei*ty, its ob- 76 servance shall be restored, and in accordance with the same and with the laws which may hereafter be passed by virtue thereof those parties who may have figured in the govern- ment emanating from the rebellion as well as those who may have fostered the same, shall be tried. » In accordance with these principles, I think that had the President imposed the penalty of confiscation within the term of the faculties, even though the same had been subsequently carried into effect, nothing could be objected; but this was not the case; and this omission or neglect on the part of the authorities cannot be remedied within the constitutional pre- cepts but by violating them again, as is happening with this case of ampa7'0 wherein it is sought to establish doctrines which are wholly opposed to the writ of execution of the Su- preme Court of Justice of August 10, 1877, in the case of ihe amparo of Goribar. It is, therefore, evident that in August and September, 1867, only the Constitution and the laws that emanated from the same could have been invoked for the imposition of the penalty which is now l)eing sustained, because the extraor- nary powers had absolutely come to an end and the latter could not be extended beyond the period fixed by the very law which granted them. We must not look for the duration of those powers in the meeting of Congress nor in the words uttered by the Pre- sident in his address, wherein he said that he would make no further use of those powers: we are to find the duration of the same in the text of the law itself which provided : that those powers should cease so soon as the war with France should come to an end; and to say now that such a war has not ended because no treaty of peace has been concluded, is almost laughable, notwithstanding everything that has 77 been said to the contrary and all the authorities which have been quoted, as it is also preposterous to establish the dura- tion of those powers in view of what the President said in the opening of Congress, because all these arguments cannot be brought to bear against the express text of the law refer- red- to. I forbear to take into consideration the penalty of contis- ration in its unusual and transcendental nature, because I consider it inadequate for the punishment of the crime of high treason : I do not attack it because 1 deem it too severe for the chastisement of those who commit the crime referred to, inasmuch as I would recommend th e apphcation of all kinds of penalties for the punishment of the same; but I deny the authority to apply such a penalty when the law of ex- traordinary powers had ceased, and when the Constitution had once more attained its supremacy. Perhaps my remarks may appear to be too much in favor of our Constitution; but that is the Code to which I must subject my conduct here, in the Supreme Court of Justice, wherein I occupy a post thanks to the kindness of the Mexi- can people; and since the history of other peoples and the doctrines established by jurists are contrary to the text of the above, I follow and adhere to the Constitution as the supre- me law of the country to which I have a thousand times sworn fidelity. I shall, therefore, vote in favor of" the sentence pronounced hv the Disfvifl Jurhro 'who f/nrparn, Jounial of February 19, 1879. There were present at this session: Chief- Justice Vallar- ta, Magistrates Altamirano, Montes, Alas, Martinez de Cas- 78 tro, Bautista, Avila, Vazquez, Guzman, Saldana and the Pro- secuting Attorney. Absent, with leave, Magistrates Ramirez, Ogazon and Blanco. The journal of the previous session was approved. . . .' Secretary Gonzalez Angulo read an account of the suit of amparo put forward by Mrs. Dolores Quesada de Almonte against the confiscation of house n? 10 in the 1st. Street of San Juan. Magistrate Montes spoke in favor of the amparo and Chief- Justice Vallarta agains it, retaining the floor for the next session. Journal of Fcbnieiry 20, 1879. There were present at tliis session: Chief- Justice Vallar- ta, Magistrates Altamirano, Alas, Martinez de Castro, Bau- tista, Vazquez, Avila, Guzman, Saldana and the Prosecuting Attorney. Absent, with leave, Magistrates Ramirez, Ogazon, Montes and Blanco. . . . Chief- Justice Vallarta finished his address regarding the suit of amparo put forward by Mrs. Quesadn de Almonte. Then Mr. Bautista spoke in favor of the amparo and Messrs. Altamirano and Guzman against it. After the debate closed, a vote was taken respecting the sentence pronounced by the 1st District Judge, by which amparo was granted to Mrs. Almonte, and the said sentence was reversed by the votes of Messrs. Saldana, Guzman, Avi- la, Vazquez, Alas, Altamirano and Chief- Justice Vallarta- the Prosecuting Attorney and Messrs. Bautista and Montes voted in favor of the amparo. 79 Journal of February 27, 1879. There were present at this session Chief- Justice Vallarta, Magistrates x\ltamiraiio, Montes, Blanco, Bautista, Vazquez, Avila, Guzman, Saldana and the Prosecuting Attorney. Absent wiht leave: Me'^>^r< Ramirez, Ogazon, Alas and Martinez de Castro. The journal of the previous session was approved. . . . Mr. Blanco having wdth drawn, the Chief- Justice read the draft of the sentence in the suit of amparo put forward by Mrs. Dolores Quesada de Almonte, for the draAving up of which he \vp>: commissiniKMl., rtnd is ns follows^" t Mexico, February 20, 1871:). a Considering^ 1st. — That on the 20th. of August, 1867, on which date the order for the confiscation of Mr. Juan N. Almonte ^s property was issued, the extraordinary powers granted to the Executive by virtue of the law of May 27, 1863, had not yet expired, because the said law provided that the same should last ((until 30 days after the forthcom- ing reunion of Congress in ordinary session, or before that time should the war with France have come to an end, » and on the 20th. of August nothing of this had taken place. The period marked by the said law had not expired, because after the 31st. of May, 1863, Congress were imable to resume their ftmctions until after the 8th. of December, 1867, and as dur- ing this whole period there was no ordinary session, the said term of 30 days did not commence to nm from the 20th. of August. Nor had the other conditions prescribed by that law been complied with, because although during the said month. 80 of August there existed in reality no hostilities with France, and the latter had withdrawn all her troops from the natio- nal territory, this did not suffice, according to International Law, to put an end to the state of war w^hich existed between the two beUigerents, inasmuch as far from having concluded any treaty making such a declaration, or of having renewed the former relations of peace, the President, in his opening address before the 4th. Congress, stated that all our treaties with France were broken as well as all our relations with the said Power. On the other hand as the Mexican Government has kept up that same policy up to the present time, this Supreme Court cannot declare that on the 20th. of August, 1867, the war with France had come to an end, because it is not one of its attributes, but pertains to the other Depart- ments of the Government to declare the state of peace with all the legal consequences which such a declaration involves, regarding the renewal of treaties broken by war, or the ce lebration of new ones. Considering M. — That the extraordinary and very ample powers which the law of May 27, 1863, and the other similar laws of October 27 and May 3, 1862, and December lltb. and June 7th. 1862, granted to the Executive so as to ena- ble him to save the national independence, are cojistitutio- nal, since they are authorized by part 2d. of article 29 of the Constitution. This truth can be demonstrat-ed with tlie fol lowing considerations: I. It is not true nor exact that article 50 of our fundamen- tal law can be interpreted in the sense that Congress can ne ver grant to the Executive authority to legislate because never can two of the three powers into which the Government is divided be vested in one single person or corporation. There are many constitutional texts which prove that in some ca- 81 ses, under certain given circumstances, the reunion of those powers in one person or corporation is legitimate, such as articles 103, 104 and 105, as amended, which confer upon the legislative power judicial authority to take cognizance of the offences committed by high officials; such as fraction X of article 85 which empowers the President to conclude treaties, which treaties, according to fraction 1st., letter B of article 72 as amended, are to be approved by the Senate only, thus excluding the action of the House of Deputies; such as article 21 which empowers the administrative authorities to impose conventional penalties for slight offences. All these texts, and others that might be quoted, clearly show that the adverb anever^y) which appears in article 50, should not be taken in its grammatical sense : that the rule which the said precept contains is not so absolute as to preclude any excep- tions recognized by the constitutional text itself To deny this would be to affirm that the said article 50 is in contra- diction with the other articles just quoted. The same reason which compels one to see their accord and to take them in such a manner that the precept of the one shall not destroy those of the others, requires that articles 29 and 50 be inter- preted in such a manner that the former shall not be in con- tradiction with the latter, as is the case in sustaining that if Congress deem it necessary in some serious case to delegate to the President the power to legislate, such delegation is always to be considered as unconstitutional, since anevery) can two powers be united in one person. The judicial juris- diction of Congress in certain cases, is an exception to the precept contained in article 50, and so is the delegation of the legislative power upon the President, since both excep- tions are supported by constitutional texts. II. The second part of article 29 says to the letter that 11 82 Congress ((shall grant the authorizations they may deem ne- cessary so as to enable the Executive to face the situation. » One of the cases wherein the authorization to legislate should be considered necessary, is undoubtedly when, during a for- eign war Congress foresee that their existence becomes.im- possible, aud when they must seek to save the national in- dependence ; and such a case is really presented by the suit of amparo in question. If the third Congress who apprehend- ed that they would be unable to perform their duties owing to the occupation of the capital by the French army and on account of other hazards of war, had not granted to the Exe- cutive in 1863 the authority to legislate, or if this Supreme Court should now declare that such authorization was un- constitutional, we would have to come to the inevitable con- clusion that not only was everything that was performed dur- ing the war with France in defending our independence, an attack upon the Constitution, but, what is still more serious, that Mexico, from the moment Congress disappears owing to the machinations of her enemies, cannot any longer main- tain her sovereign rights nor defend herself against her do- mestic or foreign foes, since the President has been unable to levy taxes, to increase the army, to dispose of the National Guard of the States, nor to issue, in a word, any law that may alter or interfere with the estimates in time of peace, and all this notwithstanding the fact that Congress may have conferred upon him the authority to do everything that should be required. This argument ah ahsurdo has been clearly pro- ven by the French Intervention, and sustains those which show the accord that exists between the constitutional texts and enables us to affirm that article 50 does not prohibit the President to legislate whenever Congress, in view of excep- tional and serious cases, may deem it necessary to confer 83 Upon him that authority so as to overcome a difficult and dangerous situation. III. The Constituent Congress understood and approved the second part of article 29 in this sense. The facts which show this may be summed up in the following manner. That which at present is the first part of the said article was pre- sented as article N? 34 in the session of the 26th. of August, 1856, and then withdrown with the consent of Congress; but it was again presented without any alteration whatever in the session of the 21st. of November. Fully discussed, it passed on the following day by sixty- eight votes against twelve. The majority of the House, not being satisfied with the suspen- sion of guarantees allowed by the said article, and apprehend- ing that neither this nor the constitutional faculties of the President would suffice to overcome certain situations of ex- ceptional seriousness, heard the reading of the bill on dicta- torship offered by Mr. Olvera in the session of December 9, 1856, and referred it to the Committee on Constitution. Nei- ther the latter nor Congress saw fit to approve the bill as its author had presented it; but they accepted the spirit which had suggested the same and the arguments which supported it; and in the session of January 24, 1857, that which is now to the letter the second part of article 29 was passed by a vote of fifty -two yeas against twenty -eight noes. This ac- count of the facts shows that the Constituent Congress be- lieved that besides the suspension of guarantees, which was passed and completely finished during the sessions of No- vember 22, extraordinary powers vested in the Executive might become necessary under exceptional circumstances; and also that they thought it proper to confer upon the said Executive the atitJiorimtions which Congress might deem ne- cessary so as to enable him to face the situation^ thus leaving 84 to the patriotic discretion of Congress the delegation even of the power to legislate, should they deem it necessary in order to overcome the perils that might endanger our institutions or our country. Therefore, it does not foUov^ that because the Constituent Congress rejected Mr. Olvera's bill respect- ing the triumvirate, they also rejected the idea of granting extraordinary powders, even so far as to legislate, should Con- gress deem them necessary. This conclusion is not only in open contradiction with the facts referred to, but also with the precise text of part second of article 29, approved on the 24th. of January. Considering J 3d. — That the law of August 16, 1863, is- sued by the President, by \'irtue of the authorizations which were granted to him by the law of May 27 of the same year, is legitimate, as has been shown in the preceding conside- randum, and that, therefore, the appeal ofamparo cannot be brought to bear against the same. Considering J 4t^i. — That article 7th. of the said law of Au- gust 16, which authorized the Council of Ministers to resolve upon questions regarding confiscation does not violate article 21 of the Constitution, since by virtue of the authorizations granted to the Government the guarantees contained in the said article were suspended, because the law of May 27, 1863, extended ((the suspension of guarantees provided for by that of October 24, 1862, and the concession of the po- wers granted to the Executive, » and article 4 of the same law of October 24 only limits the extraordinary powers of the Executive respecting judicial matters in the following li- teral terms : (( It is hereby declared that the Executive has not the power to interfere in nor decide upon civil affairs aris- ing among private parties or criminal matters wherein may be involved offences against private rights, » and inasmuch as 85 the crime of treason is one of those that affect pubUc rights, it was by that fact beyond the hmits prescribed by the said law. Considering, 5th. — That although article 22 of the Cons- titution ordains that the penalty of confiscation is abohshed forever^ it cannot be doubted that the guarantee which re- garding this point is contained in the said article, may hke- wise be suspended, since article 29 declares that ((the gua- rantees granted by this Constitution may be suspended with the exception of those which assure the life of man. » Considering J 6th. — That the accord which exists between the laws of December 11, 1861, May 3d. and October 27, 1862, and May 27, 1863, proves that the said guarantee was also suspended, although not in an express manner. The first of the said laws, (( authorized the Executive in an unlimited manner to dictate all the measures which he might deem convenient, with no other restrictions but that of saving the national independence and iii^egrity, the form of government established by the Constitution and l)y the laws of Reform. » These ample powers and authorizations were extended until May 27, 1863, upon which date the President was empower- ed even so far as to conclude diplomatic treaties, and all this with the object of saving the national independence against the invasion of the French. And in these most ample autho- rizations we should also include that of dictating all the coyi- venient measures against the traitors who joined the foreign enemy, measures which had no other restriction but that ex- pressed by the law, that is, of saving the national Indepen- dence, the Constitution and the laws of Reform. Therefore, to suppose that the constitutional precept which prohibits confiscation remained in force respecting traitors, is not only to disown the spirit which dictated the said laws, but is to 86 contradict and disown their literal tenor which withdrew all restrictions from the same, excepting the one already men- tioned, as to the measures which the Government might deem fit to dictate in order to repel the foreign enemy and their allies. Considering, 7th. — That even if the said laws which grant- ed such ample powers to the Executive should iiot be inter- preted in the above sense, neither should the enemies of the Republic engaged in a foreign war invoke in their fevor ar- ticle 22 of the Constitution to the eifect that their property cannot be confiscated ; because although the said article de- clares confiscation abolished /orey^, this is to be understood as an ordinary penalty in our Penal Codes, and the said pre- cept cannot prevail in international matters nor limit the rights which are conferred upon belHgerents by Internatio- nal Law. This truth, which besides all the other arguments which might be brought to bear in its support, is shown clearly by fraction XV of articlg 72 of the Constitution which sanctions privateering, and it recognizes the legitimacy of the prizes captured on land or sea, and it accepts, as it could not fail to accept, the precepts of International Law respecting the rights of peace and of war. Considering, 8th — That as the Constitution of the Repu- blic cannot establish international precepts but only deter- mine the interior public laws of Mexico, it were absurd to apply the said Constitution to matters and affairs which can only be regulated by the law of Nations; because such an application would but serve to limit and restrict the rights of Mexico which are acknowledged by the said law, without even entertaining the hope of any reciprocity on the part of foreign powers, who are under no obhgations as regards our Constitution; and the result of such an absurdity would be 87 that Mexico in her international relations would remain un der Y^ry unequal terms respecting foreign governments. Considering J 9th. — That as the Constitution recognizes the right of confiscation, as it is sanctioned by international law whenever the latter and not the former has to be applied in certain matters, although the guarantee contained in article 22 be not suspended, the property of the enemy may be con- fiscated in the RepubKc, accor<^ing to fraction XV of article 72 ah'eady quoted, and under the terms and in the manner prescribed by International Law. Considering^ 10th. — That during the war between Mexico and France, it was not the Constitution but International Law which defined the rights and duties of the belligerents, and that among the said rights that of capturing and confis- cating the enemy's property on land or sea is fully recogniz- ed, without it being included among the limitations which in the exercise of that right have been established by the philosophical theories of modem authors, that of the enemy's property who makes war personally and whose property is captured by the other beUigerent; the consequence of all this is that, even had the constitutional guarantee on confis- cation not been suspended, the Grovemment of Mexico could impose the same, exercising the powers of war acknowledg- ed by International Law and in due representation of the so- vereign rights of the Republic. Considering^ 11th. — That this Supreme Court, in its writ of execution of July 2d., 1869, in a case similar to the present one, declared that the penalty of confiscation imposed upon traitors by the law of August 16, 1863, does not violate the individual guarantees, because the latter were suspended during the war, and that the said law is legitimate as having emanated from the ample powers which were conferred upon 88 • • the Executive by the law of May 27, 1863, and other simi- lar laws. In view of the above considerations, and founded on arti- cles 101 and 102 of the Constitution, it is hereby declared: that the sentence pronounced by the 1st. District Court of this Capital. on the 20th. of July, 1878, ought to be reversed and is hereby reversed: and it is furthermore declared that the Justice of the Union does not shield nor protect Mrs. Do- lores Quesada de Almonte as the widow and executrix of Mr. Juan N. Almonte, against the order of August 20, 1867, issued by the Treasury Department, and by virtue of which house n? 10 situated in the 1st. Street of San Juan was con- fiscated. » The first considerandum having been put under discussion, Mr. Avila requested that there should be su])pressed the words: ((And the Mexican Grovernment having, <&c.)) up to the words ((other new ones, » and that the said paragraph be substituted by the following one: ((On the other hand, Pre- sident Juarez in the act of opening Congress, declared that from that moment he ceased to make use of the Extraordi- nary powers, which declaration Congress accepted, from which it follows that the said date is the one to be taken as the expiration of the said extraordinary powers.)) The above modification having been accepted by the Chief Justice, the first considerandum was approved by the votes of the Pro- secuting Attorney and of Messrs. Saldana, Avila, Vazquez, Altamirano and of the Chief Justice: Messrs. Guzman, Bau- tista and Montes voted against it. The second considerandum having been put under dis- cussion with the first of ist arguments or considerations by which it was supported, was rejected by the votes of Messrs. Guzman, Avila, Vazquez, Bautista and Montes: the Prose- S9 cuting Attorney and Messrs. Saldana, Altamirano and the Chief Justice voted in favor of the said clause. Mr. A\dla was commissioned to substitute the same. The second argument or consideration in which the se- cond clause is founded having been discussed^ Mr. Avila stated that he accepted the same, and that in this sense he also accepted the considerandum, and thus the second ar- gument remained as first, having been approved by the votes of the Prosecuting Attorney and of Messrs. Saldana, Guz- man, Avila, Vazquez, Altamirano and of the Chief Justice; Messrs. Bautista and Montes voted against it: and further- more, at the instance of Mr. Avila, the following words were suppressed: a comes in support of those ivMcJi are fiirnished by the accord ivhich exists among the constitutional texts in order to affirm that article 50 does not forbid the President to legis- late^ whenever Congress^ in certain serious cases may deem it necessary to confer upon him the said authorisation in order to overcome a difficult and dangerous situation; » and it was decided that the same should end with the following words: ait is made manifest by the French Intervention.)} The third argument of the same clause was withdrawn by the Chief Justice, the latter stating that although that was his opinion, as it had connection with the first argument already rejected, he thought it should be suppressed. The third clause having been discussed, it was approved by all the votes excepting those of Messrs. Bautista and Montes. The fourth having beeii discussed, it was approved by the votes of the Prosecuting Attorney and of Messrs. Saldana, Avila, Vazquez, Altamirano and of the Chief Justice; Messrs. Gruzman, Bautista and Montes voted against it. The fifth was discussed and approved by the votes of the 12 Prosecuting Attorney and of Messrs. Saldana, Avila, Vaz- quez, Bautista, Altamirano and of the Chief Justice: Messrs. Guzman and Montes voted against it. The sixth having been discussed, it vras approved by the votes of Messrs. Saldaila, Avila, Vazquez, Altamirano and of the Chief Justice: the Prosecuting Attorney and Messrs. Guzman, Bautista and Montes voted against the same. The seventh having been discussed, it was approved by all the votes, excepting that of Mr. Montes. The eighth and ninth were likewise discussed and appro- ved in the same manner as the previous one. After discussing the tenth it was approved by all the vo- tes, excepting those of Messrs. Bautista and Montes. The eleventh was discussed and approved by all the vo- tes, excepting those of the Prosecuting Attorney and of Mr. Montes. Mr. Bautista stated that he had voted in favor of the eighth and ninth clauses, in view of the- general ideas they contained; and in ikvor of the eleventh because it only con- tains a single fact. Mr. Montes requested that it appear in the journal of the proceedings that he was opposed to the whole draft, and hav- ing withdrawn, he left his negative vote in the Secretary's office. 91 Writ of Execution of the Supreme Court. Mexico, February 25, 1879. — Having examined the suit o{ amparo put forward in the 1st. District Court of this Ca- pital by Mrs. Dolores Quesada de Almonte, as the widow and executrix of Mr. Juan N. Almonte, against the order of the Executive of the Union issued by the Treasury Depart- ment on the 20th. of August, 1867, by virtue of which, for and on account of the crime of treason, house n? 10 of the 1st Street of San Juan was confiscated, belonging to Mr. Juan N. Almonte: with wbich order, according to the opinion of the complainant, were violated the guarantees granted by ar- ticles 16, 20, 21, 22, 27, and 50 of the Federal Constitution. Having examined the petition presented by the complainant on the 15th. of March of last year; as also de accompanying documents, with which she indentified her personality, and also that the property in question was acquired by Almonte, who purchased the same from Mr. Nathaniel Davidson, on August 26, 1864, by virtue of a deed drawn up by the No- tary Public, Mr. Agustin^Vera y Sanchez; the report given by the Treasury Department on the 22d. of March of the same year, in which it is affirmed that, in accordance with the law of May 27, 1863, the individual guarantees were suspended, and that the Executive was invested with unli- mited powers, for which reasons he was authorized to pass laws such as that of August 16, 1863, which designated the cases of infidence or treason and imposed the penalty of con- fiscation, which was carried out respecting Almonte by or- der of August 20, 1867, within the period of time fixed beforehand for the duration of the unlimited powers, because 92 Congress did not meet until many months after the above date; having likewise examined the enclosures of the said report, by which it is shown that after the three notifica- tions prescribed by law, house n? 10 of the 1st. Street of San Juan was sold at auction, and bought by General Francisco Paz for the two thirds of its price and one dollar more as previously valued. Having examined the evidence offered by the plaintiff as also her briefs. Having examined the Prose- cuting Attorney's opinion, recommending the granting of the amparo solicited, because article 22 of the Federal Constitu- tion had been violated, which prohibits forever the penalty of confiscation. Having examined the sentence of the infe- rior court, dated July 20 of last year, in which, in conformity with the Attorney's opinion, the amparo solicited was grant- ed, it being offered as an argument for this proceeding the fact that in August, 1867, the war with France had not only ended but also civil war had come to an end and that the- refore the extraordinary powers had ceased, which were conferred upon the Executive by the law of May 27, 1863. And having examined the other documents and evidence bearing upon the subject. Considering, 1st. — That on the 20th. of August, 1867, on which date the order for the confiscation of Mr. Juan N. Almonte's property was issued, the extraordinary powers granted to the Executive by virtue of the law of May 27, 1863, had not yet expired, because the said law provided that the same should last « until 30 days after the forthcom- ing reunion of Congress in ordinary session, or before that time should the war with France have come to an end, » and on the 20th. of August nothing of this had taken place. The period marked by the said law had not expired, because after the 31st. of May, 1863, Congress were unable to resume their 93 functions until after the 8tli. of December, 1867, and as dur- ing this whole period there was no ordinary session, the said term of 30 days did not commence to run from the 20th. of August. Nor had the other conditions prescribed by that law been complied with because although during the said month of August there existed in reality no hostilities with France, and the latter had withdrawn all her troops from the natio- nal territory, this did not suffice, according to International Law, to put an end to the state of war which existed between the two belligerents, inasmuch as far from having concluded any treaty making such a declaration, or of having renewed the former relations of peace, the President, in his opening address before the 4th. Congress, stated that all our treatise with France were broken as well as all our relations with the said Power. On the other hand, President Juarez, upon the act of opening Congress declared that at that moment he ceased to make use of the extraordinary powers, which de- claration was accepted by Congress, and it follows from this that the said date is the one to be taken as the expiration of the extraordinary powers. Considering J 2d. — That the extraordinary and very ample powers which the law of May 27, 1863, and the other si- milar laws of October 27 and May 3, 1862, and December 11th. and June 7th. 1862, granted to the Executive so as to enable him to save the national independence, are constitu- tional, since they are authorized by part 2d. of article 29 of the Constitution. This truth can be demonstrated with the following considerations. The second part of article 29 says to the letter that Con- gress ((shall grant the authorizations they may deem neces- sary so as to enable the Executive to face the situation. » One of the cases wherein the authorization to legislate should 94 be considered necessary, is undoubtedly when, during a for- eign war, Congress foresee that their existence becomes im- possible, aud when they must seek to save the national in- dependence 5 and such a case is really presented by the suit of amparo in question. If the third Congress who apprehend- ed that they would be unable to perform their duties owing to the occupation of the capital by the French army and on account of other hazards of war, had not granted to the Exe- cutive in 1863 the authority to legislate, or if this Supreme Court should now declare that such authorization was un- constitutional, we would have to come to the inevitable con- clusion that not only was everything that was performed dur- ing the war with France in defending our independence, an attack upon the Constitution, but, what is still more serious, that Mexico, from the moment Congress disappears owing to the machinations of her enemies, cannot any longer main- tain her sovereign rights nor defend herself against her do- mestic or foreign foes, since the President has been unable to levy taxes, to increase the army, to dispose of the National Guard of the States, nor to issue, in a word, any law that may alter or interfere with the estimates in time of peace ; and all this, notwithstanding the fact that Congress may have conferred upon him the authority to do everything that should be required. This argument ah ahsurdo has been made ma- nifest by the French Intervention. Considering J 3d. — That the law of August 16, 1863, issued by the President, by virtue of the authorizations which were granted to him by the law of May 27 of the same year, is legitimate, as has been shown in the preceding conside- randum, and that, therefore, the appeal of amparo cannot be brought to bear against the same. Considering y 4tk — That article 7th. of the said law of Au- 95 gust 16, which authorized the Council of Ministers to resolve upon questions regarding confiscation does not violate article 21 of the Constitution, since by virtue of the authorizations granted to the Government the guarantees contained in the said article were suspended, because the law of May 27, 1863, extended ((the suspension of guarantees provided for by that of October 24, 1862, and the concession of the po- wers granted to the Executive, » and article 4 of the same law of October 24 only limits the extraordinary powers of the Executive respecting judicial matters in the following li- teral terms: ((It is hereby declared that the Executive has not the power to interfere in nor decide upon civil affairs aris- ing among private parties or criminal matters wherein may be involved offences against private rights, » and inasmuch as* the crime of treason is one of those that affect public rights, it was by that fact beyond the limits prescribed by the said law. Considering^ 5tli. — That although article 22 of the Cons- titution ordains that the penalty of confiscation is abohshed forever J it cannot be doubted that the guarantee which re- garding this point is contained in the said article, may like- wise be suspended, since article 29 declares that ((the gua- rantees granted by this Constitution may be suspended vrith the exception of those which assure the life of man. » Considering J 6t1i, — That the accord which exists between the laws of December 11, 1861, May 3d. and October 27, 1862, and May 27, 1863, proves that the said guarantee was also suspended, although not in an express manner. The first of the said laws, ((authorized the Executive in an unlimited manner to dictate all the measures which he might deem convenient, with no other restrictions but that of sa\dng the national independence and integrity, the form of government 96 established by the Constitution and by the laws of Reform. » These ample powers and authorizations were extended until May 27, 1863, upon which date the President was empower- ed even so far as to conclude diplomatic treaties, and all this with the object of saving the national independence against the invasion of the French. And in these most ample autho- rizations we should also include that of dictating all the con- venient measures against the traitors who joined the foreign enemy, measures which had no other restriction but that ex- pressed by the law, that is, of saving the national Indepen- dence, the Constitution and the laws of Reform. Therefore, to suppose that the constitutional precept which prohibits confiscation remained in force respecting traitors, is not only to disown the spirit which dictated the said laws, but is to contradict and disown their literal tenor which withdrew all restrictions from the same, excepting the one already men- tioned, as to the measures which the Government might deem fit to dictate in order to repel the foreign enemy and their allies. Considering^ 7th. — That even if the said laws which grant- ed such ample powers to the Executive should not be inter- preted in the above sense, neither should the enemies of the Republic engaged in a foreign war invoke in their favor ar- ticle 22 of the Constitution to the effect that their property cannot be confiscatedj because although the said article de- clares confiscation abolished ./brev^r, this is to })e understood as an ordinary penalty in our Penal Codes, and the said pre- cept cannot prevail in international matters nor limit the rights which are conferred upon beUigerents hy Internatio- nal Law. This truth, which besides all the other arguments which might be brought to bear in its support, is shown clearly by fraction XV of article 72 of the Constitution which 97 sanctions privateerings and it recognizes the legitimacy of the prizeis captured on land or sea, and it accepts, as it could not fail to accept, the precepts of International Law respecting the rights of peace and of war. Considering^ 8th. — That as the Constitution of the Repu- blic cannot establish international precepts but only deter- mine the interior public laws of Mexico, it were absurd to apply the said Constitution to matters and affairs which can only be regulated by the law of Nations; because such an application would but serve to limit and restrict the rights of Mexico which are acknowledged by the said law, without even entertaining the hope of any reciprocity on the part of foreign powers, who are under no obhgations as regards our Constitution; and the result of such an absurdity would be that Mexico in her international relations would remain un der very unequal terms respecting foreign governments. Considering, 9th. — That as the Constitution recognizes the right of confiscation, as it is sanctioned by international law whenever the latter and not the former has to be apphed in certain matters, although the guarantee contained in article 22 be not suspended, the property of the enemy may be con- fiscated in the Republic, according to fraction XV of article 72 already quoted, and under the terms and in the manner prescribed by International Law. Considering, 10th. — That during^the war between Mexico and France, it was not the Constitution but International Law which defined the rights and duties of the belKgerents, and that among the said rights that of capturing and confis- cating the enemy's property on land or sea is fully recogniz- ed, without it being included among the limitations which in the exercise of that right have been established by the philosophical theories of modern authors, that of the enemy's 13 98 property who makes war personally and whose property is captured by the other beUigerentj the consequence of all this is that, even had the constitutional guarantee on confis- cation not been suspended, the Government of Mexico could impose the same, exercising the powers of war acknowledg- ed by International Law and in due representation of the so- vereign rights of the Republic. Considering J 11th. — That this Supreme Court, in its writ of execution of July 2d., 1869, in a case similar to the present one, declared that the penalty of confiscation imposed upon traitors by the law of August 16, 1863, does not violate the individual guarantees, because the latter were suspended during the war, and that the said law is legitimate as having emanated from the ample powers which were conferred upon the Executive by the law of May 27, 1863, and other simi- lar laws. In view of the above considerations, and founded on arti- cles 101 and 102 of the Constitution, it is hereby declared: that the sentence pronounced by the 1st. District Court of this Capital on the 20th. of July, 1878, ought to be reversed and is hereby reversed: and it is furthermore declared that the Justice of the Union does not shield nor protect Mrs. Do- lores Quesada de Almonte as the widow and executrix of Mr. Juan N. Almonte, against the order of August 20, 1867, issued by the Treasury Department, and by virtue of which house n? 10 situated in the 1st. Street of San Juan was con- fiscated. )) Let these proceedings be returned to the District Judge who sent them for their revision, accompanying him a cer- tified copy of this sentence for its due efiects ; let it be pu- blished and put on file. Thus, by a majority of votes was it decreed by the Chief Justice and Magistrates who formed 99 full quorum of the Supreme Court of Justice of the United Mexican States, and they signed. — Ignacio L. Vallarta. — Ignacio M. AUamirano. — Ezeguiel Monies. — Manuel Alas. — Jose M. Bautista. — Juan M. Vazquez. — JEleuterio Avila. — Simon Guzman. — Jose M. Saldana. — Jose JEligio Munoz, — JEnrique Landa, Secretary. The above is a certified copy of the original. — Mexico, March the third, one thousand eight hundred and seventy- nine. — (Signed) Enrique Landa^ Secretary. -1^ UNIVERSITY OF CALIFORNIA LIBRARY, BERKELEY THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW Books not returned on time are subject to a fine of 50c per volume after the third day overdue, increasing to $1.00 per volume after the sixth day. Books not in demand may be renewed if application is made before expiration of loan period. mj 1 m^vi A i*^ n cff'n Hi u ' DEC DEC 2 1 196^ SENT ON ILL AUG 2 1 1998 U. C. BERKELEV 50m-S,'26 '^ , .- ■- / r ; q UNIVERSITY OF CAIvlFORNIA lylBRARY ^^^^ ^m ..«V-.*(v* ..4li^ % .: --^M^ .^ ^^•% ^^ji!^-:v" •4-^ '-^IW^ . i>*^ :, . f^v^*