Some of the money has to be refunded in two cases where the condemnation by the district court has not been sustained. The sale took place, but the condemnation is not sustained in two cases in the Supreme Court, and there has to be a restitution. The residue of the money will be paid to the captors under the provisions of this bill.

The bill was reported to the Senate, ordered to be engrossed for a third reading, read the third time, and passed.

ALEXANDER J. ATOCHA.

Mr. STEWART. I move that the Senate proceed to the consideration of Senate bill No. 488.

Mr. HOWE. I really thought the Committee on Claims was going to have some chance this evening.

Mr. STEWART. This bill will take but a minute or two. It is a private bill.

The motion was agreed to; and the bill (S. No. 488) to amend an act entitled "An act for the relief of Alexander J. Atocha," approved February 14, 1865, was read the second time, and cousidered as in Committee of the Whole. It authorizes Alexander J. Atocha, in the prosecution of his claim referred to the Court of Claims by the act of February 14, 1865, to use such portions of the evidence taken in pursuance of the rules and regulations of the commission established under the fifteenth section of the treaty of Guadalupe Hidalgo and laid before the commission as consists: first, of the evidence of persons since deceased; second, of the evidence of persons whose testimony cannot with due diligence be obtained; and also the official letters of the authorities of Mexico on the subject of this claim. And such evidence is to be received by the court, and the court is to give it such weight as in their judgment under all the circumstances it ought to have.

Mr. STEWART. If any explanation is desired I can give it.

The bill was reported to the Senate without amendment.

Mr. EDMUNDS. I should like to have the Senator from Nevada tell us what this case is, and upon what principles of law or justice it proceeds. I remember the investigation that was had about it in the Judiciary Committee, and in which it was my misfortune to differ in opinion from the Senator from Nevada, and, I believe, from the majority of the committee, as to the propriety of entering upon this species of legislation, to declare that evidence which is not legal evidence shall be used in trying to assert a very old claim growing out of the Mexican war, that has been passed upon frequently by the Senate, or once at least, and adversely again by the Court of Claims; and I should be glad to have the Senator from Nevada tell us a little about the bill.

Mr. STEWART. I do not wish to occupy much time; but the Senate will understand this case in a few moments. This bill proposes to amend an act passed February 14, 1865. In order that Senators may understand what that act is, as it is very short I will read it:

That the Court of Claims be, and the said court is hereby, directed to examine into the claims of Alexander J. Atocha against the Government of Mexico for losses sustained by him by reason of his expulsion from that republic in 1845; and if they shall be of opinion that the said claim was a just one against Mexico, when the treaty of 1848 was ratified, and was embraced by said treaty, they shall then fix and determine the amount of the same; and that the loss or damage so sustained being adjudicated and determined by said court, the same shall be paid to the said Alexander J. Atocha out of any money in the Treasury not otherwise appropriated: Provided, however, That the amount so to be paid shall in no event exceed the balance of the $3,250,000 provided by the fifteenth article of the treaty of Guadalupe Hidalgo for the payment of claims of citizens of the United States against the Government of Mexico, which still remains unapplied to that object."

This act was passed after a very careful consideration and a report by Mr. Foster, which explains the whole case. I will not go into the merits of that case, or review the action of the Senate in passing this act in 1865. If that should become necessary I shall have to

call for the reading of the report made by Mr. Foster, which is a very able and thorough one, reviewing the whole case on its merits. This amendatory act simply provides for using certain evidence before the Court of Claims. The case has not yet been tried before the Court of Claims; and on examination it is ascertained that a large number of the witnesses have died since their testimony was taken before the Mexican commission.

Mr. POMEROY. I want to ask what the claim consists of. What is the claim?

Mr. STEWART. Mr. Atocha was a citizen of the United States, and the Mexican Government expelled him from that country, whereby he lost his property, and in making the treaty of Guadalupe Hidalgo the Government of the United States provided that they would reserve $3,250,000 for the payment of claims that American citizens had against Mexico.

Mr. EDMUNDS. Will the Senator from Nevada be good enough to read that clause of the treaty?

Mr. STEWART. I do not understand that the United States agreed to indemnify beyond a certain amount.

Mr. HENDRICKS. The Senator will allow me to say this: the Committee on the Judiciary did not go back to the merits of that. The committee simply stood upon the law of 1865, which said Mr. Atocha might prosecute his case in the Court of Claims. Now, in support of that case, the committee say that he may use the evidence which has accumulated before the commission.

Mr. EDMUNDS. Is that any reason for not reading the treaty? [Laughter.]

Mr. STEWART. The United States, to the extent of $3,250,000, agreed to indemnify those of its citizens who had been injured by Mexico, driven out of that country.

Mr. POMEROY. How does the account stand now? Is there any of that money left? Mr. STEWART. Yes; there is a balance remaining. The law provides that the amount allowed in the settlement of this claim shall not exceed the amount that was thus provided, the amount of the guarantee in that treaty. This matter was thoroughly investigated at the time of the passage of the bill in 1865. The additional relief now proposed is only to enable the case to be tried at all. Several of the witnesses have since died; some of them are beyond the jurisdiction of the court; and the evidence proposed to be used was taken in pursuance of the rules and regulations of the Department providing for the commission. The evidence was taken with great particularity.

Mr. EDMUNDS. How much is claimed?
Mr. STEWART. The law provides that

the amount allowed shall not exceed a certain sum.

Mr. EDMUNDS. How much is claimed by the claimant?

Mr. STEWART. I do not know. I did not investigate that. I do not know anything about the amount of the claim. I understand it is much larger than the amount that can possibly be paid.

Mr. EDMUNDS. Precisely; you are right

about that.

Mr. STEWART. But I do not propose to interfere with that. Congress has already passed on that question. The only question now is whether the testimony of witnesses since deceased and those who cannot be procured shall be used to carry out the objects of the act of 1865.

Mr. EDMUNDS. Mr. President, I feel it to be my duty, as one of the minority of the Judiciary Committee, although I believe there is a lady or two in the case, and I trust the Senator from West Virginia will therefore sympathize with me

Mr. WILLEY. I have no sympathy with you now-none at all. [Laughter.]

Mr. EDMUNDS. To state what this case is. This gentleman, Mr. Atocha, I believe, was a naturalized American citizen. He chose to cast his lot in Mexico. During the internal

troubles in Mexico preceding the Mexican war of 1846-47 he chose to enlist his fortunes on the side of Santa Anna and his faction. The Government in possession of the country expelled Santa Anna and his adherents for resist ance to law, as they claimed, and as in point of fact it was. They were the Government de facto. They expelled them as belligerents, insurrectionists, disturbers of the peace; for what we should call, if we were not a little tender now-a-days, treason. This gentleman, undoubtedly, in the course of that expulsion suffered injury. Most people who fail in treasonable attempts do. He was expelled.

Then came on the Mexican war with the United States, which resulted in a victory to our arms, as I hope all other wars will. In the treaty of peace we received a certain strip of Mexican territory, and agreed to pay to Mexico a certain sum of money that we did pay. We also agreed that we would indemnify Mexico against the just claims of citizens of the United States existing prior to the conclusion of this treaty of peace, with a proviso that in no event should the amount we should be obliged to pay to the citizens of the United States exceed a certain sum-seven or eight or nine or ten millions; I do not remember the amount. The treaty also provided that in order to ascertain what citizens of the United States had these just claims against Mexico which we had thus assumed a commission should be formed, a special tribunal, to hear, try, and determine upon the merits of these respective claims. That commission was formed. Notice was given and the claimants appeared. Among others appeared this gentleman with his claim.

Mr. POMEROY. What do I understand the Senator to say his name is?

Mr. EDMUNDS. Atocha. This same gentleman.

Mr. POMEROY. He is no American, judging from his name.

Mr. EDMUNDS. He claims to be a naturalized American. This gentleman appeared with his claim. The commission decided, upon the evidence that he presented, that he was not one of the persons embraced within the provision of the treaty or entitled to share in this guaranty payment that the United States had assumed on account of the facts and the circumstances under which he rested in the course of his operations in Mexico. They therefore declined to go into an investigation of the detail, the quantum, or the intrinsic merit of his claim, because they decided against him upon this preliminary and jurisdictional fact; and so he went his ways.

He afterward appealed to Congress, his claim being, as my friend from Nevada properly states, to come out of the balance of the $3,250,000 that is left unexpended of this guarantee that we gave. He appealed to Congress. Congress sent him to the Court of Claims. The Court of Claims, upon a hearing of his case, decided it against him upon the ground that the decis ion of this tribunal, to whom the matter was committed, was conclusive, and therefore the Court of Claims declined again to enter into the detailed merits in the abstract.

Mr. STEWART. Oh, no; the Court of Claims has never decided against it.

Mr. EDMUNDS. Bring on the decision and let us see whether it has or not. The decision of the Court of Claims was read in committee when we were considering the case.

Mr. STEWART. You are speaking of another case, the Chorpenning case.

Mr. EDMUNDS. Not at all. I remember the matter distinctly, unless I am much mistaken, in which the Court of Claims declined

Mr. STEWART. Oh, no; you are entirely mistaken.

Mr. EDMUNDS. We can settle that question of fact to-morrow when I get the report, in which the Court of Claims declined to entertain his case upon the ground that it had already been determined, and he claimed, therefore, that he was injured by the Court of Claims

not reaching its merits. Then he applied to Congress again; and, as my friend from Nevada states, the then Senator from Connecticut, Mr. Foster, reported a bill which directed the Court of Claims to proceed to consider the case upon its merits, to retry that which the commission had once tried, waiving this question of jurisdiction for the time being, or rather waiving this estoppel from the previous decision, and to retry it upon its merits; to again consider the question as to his relations to the reigning powers in Mexico; and if it turned out that he was one of the persons embraced within the provisions of the treaty upon this retrial to proceed to administer to him that equity which the merits of his case might entitle him to, not exceeding the balance of the $3,250,000. I am not mistaken about the fact, I venture to assert with a good deal of confidence.

Mr. JOHNSON. I think it is Meade's case. Mr. EDMUNDS. No, sir; it is not Meade's case. [To Mr. STEWART.] Have you got Mr. Foster's report?

Mr. STEWART. Yes, sir.

Mr. EDMUNDS. Let me see it, if you please. [After an examination of the report.] It does not appear from this report whether the case has been submitted to the Court of Claims or not; but this does appear:

"After the board of commissioners had closed their labors. many citizens of the United States whose claims had been rejected petitioned Congress to review the decision of that board, and the Senate of the United States appointed a special committee to sit during the recess of Congress, with the power to send for persons and papers, and with instructions to examine each case and report such as, in their judgment, were entitled to relief.

That committee, in discharge of the duty assigned them, did investigate every claim which had been presented to the Senate for relief, and in every case, except this of Mr. Atocha, reported definitively. In bis case no report was made because of an equal division of that committee upon his title to relief, so that this is the only case which has not received the supervision of the Senate, and it therefore appears to your committee that for this reason, also, the memorialist is entitled to have his claim now investigated and affirmatively decided upon by the Government."

This report does not show; but as I said before, I shall turn out, in my own estimation, to be very much mistaken if I cannot produce to-morrow, or whenever this claim comes up again, if it is not disposed of now, a decision of the Court of Claims on this question in which they have decided what I need not repeat. But it is immaterial to my present purpose to consider whether that is correct or not, because if the Court of Claims decided upon it, it was merely upon the ground that the case having once been decided by the commission they did not feel authorized to reopen it.

When the act passed upon which my friend rests this case it was supposed by Congress, I take it, that they had passed all the relief to which the claimant was entitled; that is to say, they permitted him upon the same principle that they permit other suitors against the Government to appeal to the Court of Claims, and try his case upon the same rules of law, upon the same rules of evidence as to what should be admissible and what not, that other claimants against the Government are required to conform to. Now, it turns out, two years or three, whatever the length of time may be, after this case has been sent to the Court of Claims, that the claimant comes back here for further and additional legislation which is not implied in, or which does not follow as a consequence from that which the Senate did three years ago. They only decided then that he had a sufficient case to entitle him upon the ordinary principles of proof, to try his cause in the ordinary way in the Court of Claims. Now he asks us to provide that the Court of Claims shall decide it upon a new and different principle of evidence, upon different proofs from those which other claimants are obliged to produce; and what is the fact upon which he claims that equity over and above everybody else? He says some of his witnesses are dead. That is a misfortune of the claimant. Who knows but what some of the witnesses on the other side are dead? The course of nature, I take it, operates upon all witnesses alike; and if some of the

claimant's witnesses have died, there is a fair presumption that some of those witnesses whose testimony would countervail that of the claimant are dead, too. Others, it is said, are absent. So may be some of the witnesses on the other side.

Now, it is proposed to supply witnesses to this claimant in order to aid him take $3,250,000 out of the Treasury, and that upon proof which the bill says may have been filed with this commission. What is the nature of that proof? Who are the witnesses? Who knows their character and credibility now? Who attended to their cross-examination? Who produced them before the commission in order that they might be cross-examined and reexamined in the furtherance of truth? We know not; we are in the dark about all that. It does seem to me, Mr. President, that when this is a question of $3,250,000 in these times it is worth while to be a little careful how we go out of the ordinary and universal rules of evidence and undertake to supply the absence of proof to a claimant upon the ground that we had before provided that he might go to the Court of Claims, and therefore upon the ground, as his abettors say, that we had agreed to furnish him with all the evidence that would enable him to carry his case through. That does not follow.

Mr. STEWART. Mr. President, I regret that the Senator from Vermont should find it necessary in opposing this bill to make these wild statements, to tell the Senate that there are $3,250,000 involved in it.

Mr. EDMUNDS. That is what you read. Mr. STEWART. Three and a quarter millions involved in it! Mr. EDMUNDS. left. Mr. STEWART. No; I do not say anything of the kind.

You say that is the sum

Mr. EDMUNDS. I understood you to read it so.

Mr. STEWART. I read the act of 1865, the proviso to which is :

Provided, however, That the amount so to be paid shall not exceed the balance of the $3,250,000 provided by the fifteenth article of the treaty," &c.

I understand there is only about two hundred thousand dollars, or a little less, left. Three million two hundred and fifty thousand dollars was the whole amount. This claim never has been passed upon by the Court of Claims. I have investigated this claim and know something about it. There is no such sum as $3,250,000 involved in it. The Congress of the United States gave this matter & very thorough consideration three years ago, and after the speech of the Senator from Vermont I do not know but it might be well to have the former report read. I call for the reading of the report that was made by Mr. Foster, as this is really an important matter.

The PRESIDENT pro tempore. The report will be read.

Mr. STEWART. After that is read I shall have some other testimony to present. I think I am abundantly able to show that this is a very meritorious case. Mr. Atocha is now old and poor and helpless.

Mr. EDMUNDS. What has that to do with this case?

Mr. STEWART. The fact that he has been hardly treated by the Government of the United States has something to do with this case.

Mr. EDMUNDS. The fact that he is helpless, if he is, does not help it.

Mr. STEWART. I call for the reading of the report.

The Chief Clerk read the following report submitted by Mr. Foster on the 19th of May, 1864, from the Committee on Foreign Rela

tions:

The Committee on Foreign Relations, to whom was referred the memorial of Alexander J. Atocha, praying that his claims against Mexico, disallowed by the commissioners under the treaty of Guadalupe Hidalgo, may be investigated, and, if found just, paid by the United States, have considered the subject, and now report:

That said claim has been pending before this body for some ten years past, and has always been regarded with favor by the committees who have acted upon

it. Your committee consider the claim to have substantial merits, and they adopt as their own, with slight alterations, the report of a former committee of this body.

The memorialist was a citizen of the United States residing in Mexico. On the 2 th of February, 1815, he received from that government an order "to leave the city of Mexico within the period of eight days for Vera Cruz, in order to depart from the republic.'

It appears that the memorialist at the time protested, through Mr. Shanuon, the American minister, against this order as a violation of the treaty of April 5, 18 1, between the United States and Mexico, and notifying the latter Governinent that he would hold it responsible for the losses he might sustain by reason thereof.

Forced by this order to retire from the Mexican territory within the period of eight days, the memorialist alleges that he sustained great pecuniary loss; and that he filed his claim specifying such loss, with the vouchers sustaining the same, before the board of commissioners appointed under the treaty of Guadalupe Hidalgo, which he alleges was unjustly rejected by that board, and he therefore petitions Congress for redress.

Believing that it would be dangerous to go behind the decision of the commissioners, unless it should appear that they had erred in the law applied to the case, your committee have examined with care the grounds assigned for an adverse decision in this case, and are satisfied that the commissioners erred in the law upon which they predicated their decision.

The commissioners assume, in their opinion, that the loss of the memorialist, by reason of his expulsion from Mexico, is established by the proofs filed by him, and decide against the validity of his claim exclusively upon the assumption that the order of expulsion was legal and proper, because, as they assume, of the complicity of the memorialist with Santa Anna in his resistance to the Government de facto in their efforts to depose him as the president of the republic.

The commissioners assume that the connection of the memorialist with the political movements of Santa Anna is established-first, by the fact that he remained there with Santa Anna until he was forced to abandon the Government and leave the Mexican territory; and secondly, because Mr. Shannon, the American minister, did not reply to a communication of the secretary for foreign affairs of Mexico, in which that officer, in acknowledging the receipt of the protest of the memorialist against the order of expulsion, says that Mr. Atocha was one of the principal agents who wrought against the Government, as is notorious, and as his excellency, Mr. Shannon himself, well knows."

The error of the first of these assumptions of fact by the commissioners is now established by the certificate of the officer having charge of the archives of the Mexican Government, which states that Mr. Atocha does not appear to have had any connection with the movements of Santa Anna: and by the letter of Santa Anna himself, who, on the part of Mexico, made the treaty of Guadalupe Hidalgo, stating emphatically that Mr. Atocha never had any political connection with him, and that he remained with him by his invitation, because "in those times of disorder and insubordination, he could not separate himself from him without imminent risk."

The error of the second assumption of fact by the commissioners is established by the letter of our minister, Mr. Shannon, in which he expresses the conviction that the memorialist was not in any manner connected with the political movements of Santa Anna, and that he did not reply to the communication of the Mexican minister for foreign affairs, not because he knew the correctness of his charge against Mr. Atocha, but because the memorialist had left the country before the receipt of that communication, &c. But, for the purpose of the argument, assume, contrary to the fact, that the commissioners were right in saying that Mr. Atocha was connected with the political movements of Santa Anna, will it follow that the Government of Mexico was authorized to issue the order of expulsion against Atocha? The solution of this question will depend upon the construction of the treaty of 1831 between the United States and Mexico.

The twenty-sixth article of that treaty was intended to provide for the protection of the citizens of the two nations in the event of war between them, and the stipulation is: "That if war should break out between the two contracting parties there should be allowed the term of six months to the merchants residing on the coast, and one year to those residing in the interior of the States and Territories of each other, respectively, to arrange their business, dispose of their effects, or transport them wheresoever they may please, giving them a safe conduct to protect them to the port they may designate. Those citizens who may be established in the States and territories aforesaid, exercising any other occupation or trade, shall be permitted to remain in the uninterrupted enjoyment of their liberty and property so long as they conduct themselves peaceably, and do not commit any offense against the laws; and their goods and effects, of whatever class and condition they may be, shall not be subject to any embargo or sequestration whatever, nor to any charge nor tax other than may be established upon similar goods and effects belonging to the citizens of the State in which they reside, respectively; nor shall the debts between individuals, nor moneys in the public funds, or in public or private banks, nor shares in companies be confiscated, embargoed, or detained."

During the late war with Mexico many citizens of the United States, who were residing as merchants in the territory of that republic at the time war was declared to exist between the two countries, were summarily expelled in disregard of this stipulation of the treaty of 1831, and most of the claims presented

to and allowed by the board of commissioners, appointed under the treaty of 1848, were for damages consequent upon such violation of the treaty of 1831. The fourteenth article of the treaty of 1831 was designed to secure to the citizens of the two republies, respectively, protection to their persons and property in time of peace; and, after stipulating for such protection, the two Governments contract and agree that the citizens of either party shall enjoy, in every respect, the same rights and privileges, either in prosecuting or defending their rights of person or of property, as the citizens of the country where the cause of action may be tried.".

At the date of the order of expulsion of Mr. Atocha, Mexico and the United States were at peace with each other, and it necessarily follows, in the opinion of your committee, that for any offense with which he may have been charged, Mr. Atocha was entitled, under this article of the treaty, to be tried, and to have afforded to him all the means of a fair trial which are provided for in that article.

It seems to your committee to be also very clear that the Mexican Government, under this treaty stipulation, possessed no other or greater power to punish a citizen of the United States domiciled within her territory than she possessed to punish one of her own citizens for a similar offense; and they are advised that the Mexican Government did not possess, under the constitution and laws of that republic. the power to expel a Mexican citizen without trial for any offense. Indeed, the minister for foreign affairs who issued the order of expulsion against Mr. Atocha, in response to the letter of the American minister which had inclosed the protest of Mr. Atocha against the legality of the order, and his notice of intention to claim damages for the losses which it would occasion him, says, that his Government is authorized by the laws and constitution of the republic to expel from its limits non-naturalized foreigners pernicious to the country."

For the reasons assigned, your committee are of opinion that the expulsion of Mr. Atocha from the Mexican territory was a violation of the stipulations of the fourteenth article of the treaty of 1831, and consequently that he should have been awarded by the board of the commissioners organized under the treaty of Guadalupe Hidalgo such damages as he could show were sustained by him in consequence of that expulsion.

Your committee are advised that of the $250,000 stipulated by the fifteenth article of the treaty of Guadalupe Hidalgo to be appropriated to the payment of claims of citizens of the United States against Mexico, the sum of about a quarter of a million dollars still remains in the Treasury, and consequently to that extent the fund set apart for that purpose still exists to indemnify Mr. Atoeba, if he can establish his claim by satisfactory proof.

Your committee have not deemed it their duty to investigate the quantum of indemnity to which Mr. Atocha may be entitled. And it being conceded that he was and is a citizen of the United States, they have confined themselves to the inquiry whether his claim was intended to be provided for by the treaty of Guadalupe fidalgo, and the affirmative of this question is, in their opinion, clearly demonstrated by the papers and proofs in the case.

Among the papers filed by Mr. Atocha your committee find the instructions of Santa Anna, then the president of the republic of Mexico, to the minister of his Government, charged with the negotiation of the treaty, directing him to have the name of Mr. Atocha inserted in the treaty as one whose claim was to be paid under its provisions, and they find other and repeated recognitions of its justice as against Mexico, from the obligations of which that Government claims to be released, solely because of the release by the United States, in that treaty, of all claims of its citizens against Mexico. We find that Mr. Almonte, the accredited minister of that republic to this Government, was instructed to see that this claim, "the most just of any which had been presented," should be paid from the fund which Mexico had provided by the sale of a part of her territory for the liquidation of claims of citizens of the United States against her.

With the presentation of another view of this subject, your committee will close this report.

After the board of commissioners had closed their labors, many citizens of the United States whose claims had been rejected petitioned Congress to review the decision of that board, and the Senate of the United States appointed a special committee to sit during the recess of Congress, with the power to send for persons and papers, and with instructions to examine each case and report such as, in their judgment, were entitled to relief.

That committee, in discharge of the duty assigned them, did investigate every claim which had been presented to the Senate for relief, and in every ease, except this of Mr. Atocha, reported definitively. In his case no report was made because of an equal division of that committee upon his title to relief, so that this is the only case which has not received the supervision of the Senate, and it therefore appears to your committee that for this reason, also, the memorialist is entitled to have his claim now investigated, and affirmatively decided upon by the Government.

Your committee, in accordance with these views, have prepared, and submit herewith, a bill for the relief of the memorialist, which directs that his claim shall be investigated by the Court of Claims, and providing for the payment of such amount as shall be found due him, provided that the amount so paid shall not exceed the balance of the fund provided by the treaty of Guadalupe Hidalgo which remains unapplied to the objects of that treaty.

Mr. STEWART. I desire to have the printed letters which I send to the desk read. I have the originals here.

Mr. HOWE. I appeal to the Senator to allow this case to go over.

Mr. STEWART. Let us hear something about the case first.

Mr. CONKLING. Let us adjourn. Mr. STEWART. I will not give way to an adjournment until those letters are read. I ask to have them read as a part of my speech.

Mr. HOWE. I really supposed that this evening session was voted for the purpose of passing upon some claims from the Committee on Claims, and my table is covered with them; cases which will lead to no debate and afford a great deal of relief; but this ease will evidently occupy the evening, and not be settled then. I wish the Senator would allow it to go

over.

The pro tempore.

paper

Mr. STEWART. Let us have a few minutes longer. Let us have those letters read. I ask Senators to listen to them. The PRESIDENT will be read if there be no objection. The CHIEF CLERK. This paper is headed: "Connection of Mr. A.J. Atocha with the treaty of Guadalupe Hidalgo, by which California and New Mexico were acquired. Letters of Hon. Thomas H. Benton, James Buchanan, and Robert J. Walker"Several SENATORS, We do not want those letters read.

Mr. STEWART. If we can have a vote on the bill I do not wish to debate it further. any Mr. EDMUNDS. I have something to say upon it.

Mr. BUCKALEW. I desire to propose an amendment. I move to strike out the second division. I ask the Clerk to read it.

The CHIEF CLERK. It is proposed to strike out all of the bill after the word "deceased," in line ten, in the following words:

Second. Of the evidence of persons whose testimony cannot with due diligence be obtained, and also the official letters of the authorities of Mexico on the subject of this claim. And such evidence shall be received by the court, and the court shall give it such weight as in their judgment, under all the circumstances, it ought to have.

Mr. BUCKALEW. What I desire is to so amend the bill as to permit the use of this evidence where the witnesses are dead, and in the next place to permit the official documents before that commission to be used; but as to living witnesses I would not break down the rules of evidence, and in this case I think there is a particular reason. I do not know how the fact may be, but I suspect that those papers were ex parte; they were mere affidavits not taken with cross-examination; no representative of the Government of the United States or of the Government of Mexico being there.

Mr. STEWART. Yes, they were. They were taken under the rules which I hold in my hand, which requires the American consul to act for the United States, and they were to be taken before him, and he was to require evidence of the character and standing of the parties. They were taken in pursuance of the rules of the Department.

Mr. NYE. I do not so understand. Mr. BUCKALEW. I desire by my amendment to relax them only in cases of witnesses who are now dead and who caunot be called, and in case of official documents having sanction by having been before that commission; but I think it is a shocking proposition to allow a party to read papers informally taken before a consul or before any other authority where the witnesses are now living.

The PRESIDENT pro tempore. The question is on the amendment of the Senator from Pennsylvania.

Mr. BUCKALEW. I want to strike out the second clause, and ending before the reference to the public documents.

Mr. STEWART. I should like to have it reported, so that I can understand what the amendment is.

The CHIEF CLERK. It is proposed to amend the bill by striking out the word "first" in line nine, and also by striking out in lines ten and eleven the words "second, of the evidence of persons whose testimony cannot, with due diligence, be obtained;" so that the bill will read:

That Alexander J. Atocha shall be, and is hereby, authorized, in the prosecution of his claim referred to the Court of Claims by the act to which this is an amendment, to use such portions of the evidence taken in pursuance of the rules and regulations of the commission established under the fifteenth section of the treaty of Guadalupe Hidalgo and laid before said commission as consists of the evidence of persons since deceased, and also the official letters of the authorities of Mexico on the subject of this claim, &c.

The amendment was agreed to.

Mr. EDMUNDS. I move to amend further by inserting after the word "Mexico," in the twelfth line, the words "which shall have been obtained pursuant to the said treaty and the rules and regulations of said commission;" so that it will read:

And also the official letters of the authorities of Mexico which shall have been obtained pursuant to the said treaty and the rules and regulations of said commission on the subject of this claim.

The treaty provides that application may be made to the Mexican Government for these official documents first. Then comes a proviso:

"Provided, That no such application shall be made by or at the instance of any claimant unless the facts which it is expected to prove by such books, records, or documents shall have been stated under oath of affirmation."

The object of that was, as the Senate will at once perceive, to enable the commission and the authorities of the United States who had got to pay this money to know the class of documentary evidence that was to be obtained, so that they could send out and get corresponding documentary evidence which might rebut it, or explain it, and so have notice of the nature of the evidence that was to be obtained. Now, then, if this man has obtained any official letters from Santa Anna, who made this very treaty, you understand, and was his friend -he was expelled with Santa Anna-which were not obtained upon notice such as the treaty provided, he ought not to be permitted to use them; but if he wants them now he should give notice in some way, so that the solicitor of the United States could send out and see that a full copy was obtained, and

nesses,

whether in our own or foreign countries. Mr. NYE. I should like to ask the Senator from Pennsylvania whether, after all, when this evidence is submitted, the court is not the proper judge of its proper weight? I do not understand this bill as authorizing it to be evidence.

Mr. EDMUNDS Certainly it does.

Mr. BUCKALEW. If you remove all the rules of evidence and allow the court to admit the parties to go before them and make their own statements, they might judge what they were worth.

Mr. NYE. Not at all. I understand the scope of this bill to be very different.

Mr. BUCKALEW. This bill is to relax the laws of evidence.

throw light on it. I am sure my friend from Nevada will not object to that.

Mr. STEWART. I do not know about that.
Mr. JOHNSON. Let it go.
The amendment was agreed to.

Mr. EDMUNDS. Now, I wish to say a word or two more on the subject of the merits of this case. I want to ask Senators to reflect for a moment upon this, whether they believe that if what is contained in this present bill had been attached to the bill that was reported in 1865 it would have passed then. It appeared that previous committees of the Senate had been divided about it; and the ground upon which the bill of 1865 passed at all was that the very tribunal that all parties had agreed upon to try this cause had merely made

.

an error oflaw, and had decided the cause wrong, because the law was different from what they supposed it to be. Would the Senate, if the language of this bill had been used, have revived this cause twenty years after the commissioners, fairly selected, having no interest, hearing this party upon his own proof, ex parte papers and arguments, had decided that he did not come within the treaty? I wish to ask this Senate if they would have passed this bill of 1865 with such an amendment as this, or declaring that he might try that question over again and every other question, and that they would permit him to use such testimony as he had taken ex parte before that commission who had decided against him, when no such privilege was extended to the United States?

I understand my friend from Indiana [Mr. HENDRICKS] to agree with me that in his judgment the decision of the commission, under the treaty of Guadalupe Hidalgo, and that the committee of 1865 were wrong in deciding that that commission made a mistake; but he holds himself bound by the act of 1865 as foreclosing that question, so that by the law of 1865 it is to be taken that the decision of that commission was wrong. The act of 1865 does not declare that the decision of that com

mission was wrong by any means. It merely sends the case to the Court of Claims, after twenty years, to try it over again. Evidently, the act of 1865 passed as strong as it could be made for the benefit of this claimant consistent with the sense of Congress; and the same facts existed two years ago that exist now. Having therefore got this relief, so to speak, piecemeal, having got Congress to consent that upon the regular provision of proof he might go to the Court of Claims, he then turns around two years afterward, after that is partly forgotten, and says, "Now permit me to use the proof that the law does not permit any claimant in any court in the world to use,' upon a claim, I beg Senators to understand that in the judgment of my friend from Indiana, and with proper modesty I may say my own, and I do not know but all the members of the committee agreed as to that

Mr. STEWART. No!

Mr. EDMUNDS. In the judgment of my honorable friend from Indiana and of myself, the decision made twenty years ago was rightly made. If we are to review all the decisions which have been made against claimants by commissions that the Government has ap 'pointed to decide their cases, after twenty years, upon the ground that you can get a majority one day upon a hasty argument in the evening to decide that they had made a mistake in law, when the same persons might the next day decide otherwise, and then, in addition to that, declare that evidence which no court in the world receives shall be sufficient proof for him, it seems to me it is making a raid upon the Treasury that is a little too strong.

Mr. STEWART. The Senator from Vermont asks whether the Senate would have passed the bill in the form now suggested at the time they passed the original bill. I suppose the Senate intended at that time that the case should be heard before the court. I suppose they expected that this claimant would be heard; and if they had known that there was a technical obstacle in the way to prevent the case being heard I suppose they would have removed it at that time.

The Senator talks about legal proof. The testimony proposed to be admitted was taken according to the rules of the commission and with great particularity. The American consul in Mexico appeared for the United States. The parties were required to furnish evidence of their character and standing before him; but the testimony was not taken in a litigated case. If it had been taken in a litigated case under the rules of evidence, if the parties have since deceased, the evidence might be used. It has been taken in this case by depositions, and where the parties have died it might be used. It has been taken with about equal

particularity. It is following the principle by which you use the testimony of witnesses since deceased in legal proceedings in many instances where you would not use it if they were living. It is following the well-known analogies of the law, and it is carrying out the idea of the act of 1865. That act is worth nothing without this. Several of the important witnesses, whose depositions have been carefully taken, are dead; and I think, as the bill is now amended, the chances are ninety-nine in a hundred that it will be impossible, in the revolutions in Mexico, to find the other witnesses who are living in order to obtain their testimony. Mr. Atocha is a cripple. He is sick and poor, and very likely it will be out of his power at this time to get the testimony of the witnesses whose testimony has been onee taken. The amendment of the Senator from Pennsylvania has probably placed it out of his power, if the bill passes; but certainly allowing the testimony of witnesses since deceased, to be used is following nothing but the analogies of the law. It is perfectly in harmony with the spirit of the act of 1865 when it was passed.

Mr. DRAKE. So far as the remarks of the honorable Senator from Vermont would influence the mind of the Senate, when he declares that this evidence which it is sought to be allowed to be used is such as no court would allow to be used, perfectly ex parte in its char. acter, I beg leave very respectfully to correct him.

The law of the United States as it has stood on the statute-book, I think ever since 1789, authorizes depositions in every civil case pending in any United States court to be taken without notice to the opposite party where the place at which the depositions are to be taken is more than one hundred miles distant from the place where he resides.

Mr. EDMUNDS. If this evidence is admissible now, what is the use of this bill?

Mr. DRAKE. The simple ground of its inadmissibility is, that it was not taken in the pending case. But, sir, in a United States court to-day, if the United States sues an individual, that individual may go to the furthest end of the nation and take the deposition of a witness there, without giving notice to the United States at all, and have that deposition, taken ex parte, and having no higher character than a mere affidavit, read on the trial of the case in virtue of the law of the United States regulating the matter; and that is just the character of the testimony which it is sought to give this man the benefit of in the case of witnesses who have died or whose testimony cannot now be procured; and yet the honorable Senator from Vermont says that that is to let in testimony in this case such as no court in the land would let in in any case. I beg leave to state that the Senator is mistaken in his facts.

Mr. EDMUNDS. My friend from Missouri confesses that this testimony would not be admissible in any court. He admits that; and yet he turns with the air of Paul to one of the youngest of the disciples, and tells me that I am mistaken in saying that no court in the world would admit this testimony. It is the very fact that no court in the world will admit it that makes it necessary for this claimant not only to carry a law through that gives this court jurisdiction, but to require it to decide without evidence, or upon such evidence as the claimant pleases to produce. That is the fact about it; while it does not give any such privilege to the United States. The United States is to find its evidence the best way it can. If the United States has taken any testimony that is on file anywhere, the Judiciary Committee, in its supreme wisdom, inasmuch as this man is a cripple, I suppose, as it is said, concluded it was best to debar the United States from having the same privilege that the claimant had. They only provided that this new wrinkle of law that my friend from Missouri is so fond of should be used for the benefit of the claimant and nobody else. If that is the kind of legislation to pay away the people's money, then I am opposed to it; that is all.

66

My friend from Nevada says that this gentleman is poor. I do not know but that he is; I take it for granted. He says he is a cripple. I dare say he is. There are many poor men and many cripples in the country, Mr. President, who have to pay taxes, and whose hardearned dollars have got to pay just such claims as this. I am in favor of leaving the money, until a case is made out on the ordinary proofs, in the hands of the poor men whose sweat has to produce it, rather than to have them pay it out for the benefit of this claim.

Mr. HENDRICKS. On investigation of this case before the Committee on the Judiciary I agreed with the Senator from Vermout that the report of the committee in 1865 did not establish a case. I was not satised that there was a claim due this man Atocha; but I think that question was settled by Congress in 1865, that it was such a claim as ought to be heard in the Court of Claims.

The only question now presented to Congress is, whether we will allow some evidence already produced to be read which cannot be read under the existing law. This evidence, as it is now guarded in the bill, it seems to me will not endanger the interests and rights of the Government. I am willing to vote for the bill as it is now framed, although I think, as the case now stands, the Court of Claims will decide against the claim unless a different case is made out from that which was made before the committee when Senator Foster made his report.

I do not exactly feel as the Senator from Vermont does on this subject. I do not feel that this is paying money out by the Government of the United States. We agreed with Mexico in the treaty for the payment of certain moneys and reserved three million dollars and more to pay the claims of citizens of the United States against the Government of Mexico. We retained the money in our own hands. The question is whether we will pay this claim, if the Court of Claims should so lind, not out of money due the United States exactly, but out of moneys retained by the Government according to the terms of the treaty. Mr. EDMUNDS. Do you contend that if we do not pay this to the claimant we shall have to pay it to Mexico?

Mr. HENDRICKS. That is a question that need not be settled now.

Mr. EDMUNDS. I ask my friend for his opinion, because we considered that in the committee, I remember, in connection with the treaty.

Mr. HENDRICKS. It stands just thus: the Government of the United States agreed to pay Mexico $10,000,000, as I now recollect, for certain considerations; but in the treaty the Government of the United States retained $3,250,000, and became herself the paymaster to her own citizens of claims against the Government of Mexico. The money she retained was not her own, but money that she had agreed in other provisions of the treaty to pay to Mexico. She was the trustee to both Governments for the payment of the claimants who were citizens of the United States against the Government of Mexico. Suppose there had been no claims presented against the Government of Mexico at all, and no portion of that $3,250,000 had been paid out by the United States upon claims against Mexico, I-ask the Senator from Vermont would we have retained that?

Mr. EDMUNDS. Yes; we should have retained it, clearly.

Mr. HENDRICKS. I am not sure that we ought.

Mr. EDMUNDS. Let me read the treaty, and you will agree with me.

Mr. HENDRICKS. In-a moment. I do not care much if Atocha gets something out of that money. I think it is really a question between him and Mexico, whether we, as trustee under that treaty, shall pay this claim to Atocha for a wrong which he claims the Government of Mexico did him, he being a citizen of the United States. I do not care if the

Court of Claims shall take a liberal view of the case. If Santa Anna, in the exercise of powers as a dictator, banished Atocha from the City of Mexico upon charges not tried by any court, but heard by himself, and thus destroyed his estate and his interests, I do not care if Atocha does get some advantage, so far as the law will give it to him, and does get some portion of this money. I do not think the United States are so much interested in it. He was banished; banished without the decision of a court; banished under the command of a dictator. He was a citizen of the United States when he was banished. He said he had done no wrong. Still, I do not think that the report of the committee made out a case under the treaty. It did not at the time I investigated it.

Mr. COLE. Will the Senator from Indiana give way for a motion to adjourn?

Mr. HENDRICKS. No, no; my speech is not of that sort.

Mr. COLE. We cannot get through with this bill to-night.

Mr. HENDRICKS. I am just through. Mr. CORBETT. I should like to know how long was this man a citizen of the United States?

Mr. HENDRICKS. I do not care if he was only a citizen for five minutes and a quarter. He was as much a citizen as it was possible for him to be.

Mr. CORBETT. I should like to know whether there is any evidence to substantiate that he was a citizen of the United States, and whether after he left the United States he did not become a citizen of Mexico?

Mr. HENDRICKS. I understand that all the evidence the Committee on the Judiciary bad on the subject was the report made by Mr. Foster to the Senate in 1865, which goes upon the ground that Atocha being a citizen of the United States, but transacting commercial business in the city of Mexico, aecording to the comity between the two countries and according to treaty stipulations, he was banished by the decree of the dictator and his estates destroyed.

Mr. EDMUNDS. Now, shall I read the treaty?

Mr. HENDRICKS. Yes, sir.

Mr. EDMUNDS. I will read that part of the treaty just to show whether this $3,250,000 is money retained which otherwise would be due to Mexico, or whether it is money of the United States:

"ART. XII. In consideration of the extension acquired by the boundaries of the United States, as defined in the fifth article of the present treaty, the Government of the United States engages to pay to that of the Mexican republic the sum of $15,000,000."

*

ART. XIV. The United States do furthermore discharge the Mexican republic from all claims of citizens of the United States not heretofore decided against the Mexican Government which may have arisen previously to the date of the signature of this treaty which discharge shall be final and perpetual, whether the said claims be rejected or be allowed by the board of commissioners provided for in the following article, and whatever shall be the total amount of those allowed.

"ART. XV. The United States, exonerating Mexico from all demands on account of the claims of their citizens mentioned in the preceding article. and considering them entirely and forever canceled, whatever their amount may be, undertake to make satisfac ion for the same, to an amount not exceeding $3,250,000. To ascertain the validity and amount of those claims a board of commissioners shall be established by the Government of the United States, whose awards shall be final and conclusive."

Then it goes on further as to what principles the board shall be guided by.

Mr. HENDRICKS. I think there is some other provision of the treaty which bears on this subject, which I do not at present recollect? Mr. EDMUNDS. No, sir; here is the treaty.

Mr. FRELINGHUYSEN. We held this money for that purpose.

Mr. DRAKE. Will the honorable Senator from Indiana allow me a word?

Mr. HENDRICKS. Certainly. Mr. DRAKE. Mr. President, my friend from Indiana was rather quicker in getting the

floor after the close of the remarks of the Senator from Vermont than I was, and, by his courtesy, I am permitted to say a few words in reply to the remarks of the Senator from Vermont. The Senator from Vermont seemed to think that he had settled that matter very conclusively; but I take leave to differ from him on that point. It seems that the United States is here a mere trustee, and when the evidence was taken before that commission the United States was represented, and the depositions were taken there with a representative of the United States present.

Mr. EDMUNDS. Where is the evidence of that?

Mr. DRAKE. You stated it, or the Senator from Nevada.

Mr. EDMUNDS. You misunderstood him. Mr. DRAKE. I understood that the consul there represented the Government of the United States.

Mr. EDMUNDS. No; he was the magistrate before whom depositions were to be taken.

Mr. STEWART. By the rules established by the United States, the United State required the evidence to be taken before its consul.

Mr. DRAKE. Very well. Now the matter stands just in this way: under this treaty the evidence was taken in the manner stated. The presentation of that claim before that commission was in effect a suit against this trust fund in the hands of the United States.

Mr. EDMUNDS. It was no trust fund. Mr. DRAKE. If it was not a trust fund, I think it was a suit against the United States for claims against Mexico.

Mr. EDMUNDS. That is it.

Mr. DRAKE. Now, sir, what is the claim of Atocha in the Court of Claims but just a reproduction of that same suit against the United States in the Court of Claims after it had been before another forum? So that it is in effect just exactly what the Senator from Vermont specified as if it were in this suit, for it is about the same subject-matter, though it is in a different forum and the parties are different. It is Atocha against the United States. In the other it was Atocha against this money that the Mexican Government put there to have paid to citizens of the United || States.

Mr. EDMUNDS. Will the Senator permit me to ask him a question?

Mr. DRAKE. Certainly.

Mr. EDMUNDS. I wish he would tell the Senate what he thinks of that clause of the treaty under which this man filed his claim which declares that the decision of that tribunal shall be final and conclusive upon him.

Mr. DRAKE. That is a totally different question from that upon which I am at issue with the Senator from Vermont. I am not going into the merits of the case. The Senator from Vermont affirmed before the Senate squarely that we were going to let in by this bill such evidence as no court in the country would let in. I take issue with him. I say that it is a litigation here about the same subject-matter concerning which the depositions were taken before.

Mr. EDMUNDS. Then what is the use of this bill?

Mr. DRAKE. Because, under the rules of evidence that they have, it cannot be admitted without legislation.

Mr. EDMUNDS. Then by law it is not admissible.

Mr. DRAKE. By the present law it is not admissible; but we want to make a law by which it shall be admissible.

Mr. EDMUNDS. If it is not admissible by law, would a court admit it; and if a court would not admit it, is not my assertion cor

rect?

the mau have the benefit of the evidence he has taken in the former phase of the case, when the witnesses are now dead and their testimony cannot be obtained?

Mr. EDMUNDS. Why not let the United States have the same privilege?

Mr. DAVIS. Mr. President, by the treaty of Guadalupe Hidalgo the United States acquired a vast mineral country from Mexico. It has resulted in almost untold millions of dol lars to our country. A part of the considerstion, indeed most of the consideration of that vast purchase, was $15,000,000. Citizens of the United States had claims against the Government of Mexico, and it was stipulated in one of the articles of the treaty that of that $15,000.000, $3,250,000 should be reserved in the hands of the United States to satisfy the claims which the citizens of the United States had against Mexico. Those claims might have amounted to five or ten millions, or any sum above $3,250,000; but the effect of that treaty was that those claims, whatever they amounted to, should be satisfied by $3,250,000. Many of the claims had been presented against the Mexican Government and liquidated and paid. It has left a balance yet unappropriated of about five hundred thousand dollars. It is said that this claim of Atocha amounts to two or three million dollars. If it should amount to the whole of that sum, $3,000,000, by the terms of the treaty, he cannot receive more than the residue of the $3,250,000 that is now in the possession of the Government of the United States for the satisfaction of such claims.

The Government of the United States presents itself in this position to its own citizens and to Mexico: whatever be the amount of the valid claims which the people of the United States have against Mexico they are to be satisfied, so far as Mexico is bound to pay them, by $3,250,000. This claim, it is said, amounts to two or three millions. If it does amount to that, the uttermost cent that Atocha can have of claim against the Treasury of the United States or Mexico is the residue of that fund of $3,250,000, after deducting the amount that has been paid to other claimants; and that is stated to be about $500,000.

I was on the Committee on Foreign Relations, three or four years ago, when this subject was considered. I examined the claim twice, and I came deliberately to the conclusion that it was a claim founded in justice. Mr. Atocha was a Spaniard by birth. He came to, the United States and resided a while in New Orleans, and was there naturalized. He then went to Mexico for the purposes of trade and commerce. While he was there he was charged with being complicated with some faction, and was banished by the ruling authorities of Mexico summarily and immediately from the territory of Mexico. The Committee on Foreign Relations, of which Mr. Foster was then a member, examined the subject, and I examined the case twice afterward as carefully as I could, and concurred with him in all of his conclusions in the report that he made as to the facts and the law. The committee became thoroughly satisfied that Mr. Atocha had not been complicated in the political intrigues for which he was banished, but was entirely innocent of such a charge. The committee also examined the treaty of 1831 between Mexico and the United States, which stipulated mutually that the citizens of the respective coun tries should not be banished from the other until they were allowed six months for the purpose of prosecuting and winding up their business and leaving the country without loss. I am satisfied that this claim is one of merit, that Atocha, a citizen of the United States, whom I saw here repeatedly for three or four years, was not implicated in any political intrigue in Mexico, and that the pretext upon which he was banished was assumed and had no foundation in fact. I am perfectly satisfied, as was Mr. Foster, who was one of the most accurate lawyers and one of the most careful committeemen that I ever served with in this body, that he was banished by the ruling authorities of