The republic. [volume] (Washington [D.C.]) 1849-1853, 1853-03-23
y. Yes; / commanded company at Vera

An,. Yes; I commanded a company at Vera
Cruz.
the frontier OF Mexico, in the service of the Gov.
eminent? If 90, state what you were engaged in.
Ans. have been engaged on the Boundary
Commission for running the boundary between
Mexico and the United States, under the treaty Of
Guadalupe Hidalgo.
CUES. You have been through what part of the
| country where the boundary is to be located?
Ans have been from the Atlantic to the Paci-
nc. went from San Antonio, Texas, to the Paso
| del Norte; remained there about one year, then
went to carry supplies to the Pinos Indians the
ella river; remained in the Pinos villages about
4 six weeks; passed down to the mouth of the ella,
| and arrived in San Diego on the 7th of January,
| year ago; remained there until the last OF May,
| then came down to Central America, crossed,
shipped, and arrived in New York on the 26th of
| July Last
CUES Have you knowledge of the Spanish Ian
guage?
Ans. have partial acquaintance with the lam
| guage. l am able to converse in it, and under
stand what is said. do not speak 1t very correctly
or very dramatically.
Ques Your duties on this boundary survey led
you to explore new and wild country?
Ans Anew, wild, and almost unknown country.
Mr.. BRADLEY. That was part OF your duty?
Ans. Yes, because part of the time was ex-
By Mr.. MAY. Have you ever been in the State
| of San Luis Potosi?
Ans. have.
CUES. When?
| Ans. (After referring to memorandum which
witness said he made at the time.) entered the
State of San Luis Potos about the 18th of October,
/ 1852.
Cues. Have you visited the county of La
guinilas, in the department of Rio Verde, in that
State?
| Ans have.
| CUES For what purpose?
Ans. | went there for the purpose of seeing if
any mines, such as are represented in DR.. Gardi-
ner's memorial, existed in that place. My object
| was as much to establish his innocence, if that
could be cone, as to prove the charge against him.
examined the country thoroughly, and left no
means untried-
Mr.. BRADLEY. l ask you before you go further,
how you know the dimensions of the district?
1 tVitness ascertained the boundaries from off,
| cial maps which were furnished me by the project
and the people of the country.
project of Rio Verde would be very hard person
TO get here now.
Mr.. MAY. You may establish boundary by
hearsay.
After some conversation,
The CoURT said it had got down witnesses answer
in this way: 81 had been in Laguinilas to il
| there a mine there such as DR.. Gardiner
claimed for the ioss of. The dimensions of the
district or country were pointed out to me by the
people of Laguinilas.''
By MIR. BRADLEY. You say you went out to see
If the mines could be found. At whose instance
did you go?
/ T.
The Court. If it relates to admissibility, the
| defence is correct; if not, it is out of order.
| Mr.. BRADLEY. That is the very thing we wish
to show, that it does relate to admissibility.
/ Mr.. MAY. 1t can make difference whether
i the witness went there Mr.. Smith MIR. Jones.
The gentleman saves his point by the exception he
| takes. That he went there since the indictment
| was found everybody knows. 1t can make no diff
ference to the evidence he is to give whether he
| went at the instance of the Government on his
| own hook
The CoURr said it had added to its minutes that
witness said he went there after the indictment Of
| Gardiner was found.
! Mr.. PERRY. The objections which seem to strike
my mind are these: that the witness goes into the
country and endeavors to gain information from
the authorities OF the country to the localities of
these mines. The government of the country hav
ing claimed the surplus of the money appropriated
for Mexican claims it is the interest Of these
| thorites-the alcaldes and other officers-to give
false Information to the localities of these Mines
The case would have been very different if the wit
ness had been there years before and obtained in
formation as to the boundary of the district or
country. But going after the suit is instituted
after the indictment is found-it becomes the in
terest OF the citizens of the republic, the officers of
the government, and of all the enemies of DR.. Gar
diner to give false information; and it to me
that higher authority must be appealed to in order
to establish boundaries in that republic. And
submit that the authorities will not sustain the
prosecution in introducing evidence of this sort;
for it is permitting party interested in the
aege that the whole of the boundaries of the
country have been misrepresented, and they must
appeal to some higher authority-to maps and
charts, or to persons who have made surveys
before this evidence can be admitted
Mr. FENDALL. am at loss to know how it
can be known that boundaries to be proved
until the witness is heard; but the rule of law is
clear that hearsay evidence ia admissible on a
question of boundary. We are not to show the
authorities. We show the principle.
Mr. CARLISLE. ] should like to see the authority
that says that hearsay evidence is admissible,
upon question of boundary, in criminal prose-
cution.
Mr.. FEsDALL. We state the general principle
OF evidence, that hearsay is admissible in cases of
boundary
Mr.. CARLISLE. What is your authority?
Mr.. FENDALL. / state it in the hearing of the
court. If is objected to, will find the authority
The exception sought to be introduced here is an
exception not founded on question of boundary,
but on supposed bias of the witness. All that is
assuming what there is foundation for-that
these persons were interested in giving statements
to the witness. That is not question of evidence
That is question for the jury to decide.
Captain Barry was asked if he had made known |
his object to any one in LaguiniIlas; and said
never made known to none in LaguiniIlas the |
object of my visit. / went there as an American,
and under the pretcnce of looking for coal |
mine.
Mr.. BRADLEY moved that the papers read to the
jury to- day be filed with the clerk
Mr.. FENDALL said the United States had not yet
After some discussion
The Couar decided that the papers should be
filed hereafter but for the present the United States
were entitled to their possession.
Mr.. MAY followed in support of the admissibility
of the testimony, and cited 4th Maule and Sell
wyn, 489; 4th Campbell's Nisi Prius, the Berkeley
Peerage case, 40l; and Elliott U.s. PeersoIl, 1st
Peters, 337
Mr.. BRADLEY replied
And at four O'Clock, the court without deciding
the question, adjourned.
TENTH DAY-Ihesday, March %. -
The question pending at the adjournment yes
terday was, should the witness captain Barry)
be allowed to answer the question whether, after be
went to Laguinias in the fall of 1852, he learned
from the people of that country the boundaries of
Laguinlllas and TO state what he had thus learned
to the jury.
The argument was renewed by Mr.. CARLrsLE in
support OF the objection. Heopposed the admissi
bility OF this species of hearsay testimony, the
parties whose declarations are offered being living.
and cited 10 Peters's Rep, 22l; Phillips on Evi.
| dence, 1879.
| This was hearsay evidence post Item n,otam, and
| was clearly inadmissible | Phillips on Ev., 1873.
1879; Greenleaf Ev., secs. 100, 2, 8, a Starkie,
| Sd Am. ed, "a; Campbell, 444; Campbell nisi
| prus-tbe Berkeley Peerage case-4O9. The depo-
stions of every man, woman and child in Laguin
iIlas her oath could not he here. xuopId