The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-08-16
WASHINGTON: MONDAY MORNING, AUGUST 1852

Of company for the execution of said work across
the isthmus; and if the said gentlemen should no.
be able to come 70 an agreement with the grantor
he shall be entirely free 10 make arrangements and
stguIations With any other persons, companies, SC.
From this article II Ia concluded, Is.. That al
the date Of the transfer, that it, on the 18th January
ls47. the privilege Of constructing the way Of corn
munication had not as yet been transferred. I'd.
That 1t was not thereby transferred to Messrs
Manning and Mackintosh, since tho time had not
yet arrived for treating IN regard to the eonstruc
lion Of The .cay of communication befsueen he seas
nor lor entering into sipulations in regard to the
formation Of a company for the execution Of said
work ac ross the Isthmus Sd. That he reserved to
himself the liberty of making arrangements and
stipuatons with others, If he could not do 30 with
them. r.
From these premises the following deduction is
drawn, viz: That a transfer which had not yet
been made and completed could not have been ap.
proved; because how can II be maintained that, by
this article, notice was given 10 the government Of
Mexico OF said privilege having been transferred to
Niessrn. Manning and Mackin,osh, when they were
right to do 30 hereafter was cxpressly reserved!
Can thing be considered as dore which is an
nounccd merely as being possible to happen? The
anticipated approval OF contract which 1t is not
known will be made or not, whereof the terms and
conditions are unknown, and which cannot there
fore lie examined TO discover whether it con j..
tans any thing prejndicial to the rights Of the
an absurd suppostion---it is thing which could
scarcely be possible; because it ia not presumahle
that person who had his right senses, and the
proper and energetic use OF reason, would consent
to it. The article advanced hope, it admitted tho
preference to treat with Messrs Manning and
Macintosh; but between this and the contract
made. there is US much difference as between the
hing and the possibility, the past and future, the
certain and the uncertain.
The second argument is derived from the reply
made by the Mexican commissioners to Mr.. Trist
in the conferences that took place in order to con.
+clude the treaty Of Guadalupe Hdalgo, in which,
n Tor fhn nnFth a rt<rI,t t,A
port merchandise across the lsthmus exempt from
dues, and the free passage for citizens of the Uni
ted States he was answered that some years ago
privilege IN regard to this matter had been granted
to private contractor, which was afterwards
transferred, with the authority Of the government,
to English subjects, of whose rights Il could not
dispose; from these words, which the author of
the article applies TO the transfer of the privilege
OF the construction Of the way OF communication,
he pretends to infer the recognition of the govern
ment
This argument has been satisfactorily answered
in the report of the Senate committee, and subse.
quently in the instructive memoir Of the Minister
Of Foreign Affairs, showing, LIST. That in said an.
swer no ailusion could have been made to fact
which, when TINT answer was given, viz. on the
9th September, ls47, had not yet occurred; il did
not ues trist, since by Garay's own admission, as
appears in the public contract of 2Sth September,
lS4S the transfer of the privilege for the consruc-
ton Of the way of communication did not take
place until the 10th June, ls4s; and therefore it
Io47, what did not take place until nine months
later. I'd. That the transfer referred to by the
commissioners could be none other than that Of
which the government had official notice; and that
was the ono relative to the privilege in regard TO
colonization, as appears from the public instrument
of the 7th January, 18{7 and the resolution adopt
ed by the government in regard to this contract,
communicated to Garay on the 9Th Of July, Of the
same year. 3d. That II also appears from the lst,
9th, It'll, and 9th clauses Of the instrument, that the
transfer was limited solely to lands and the intro
duction of settlers; Garay reserring to himself ex
pressly and eoDelu:iveiy the GIT in regard to the
What is meant 10 be understood in the reply of
the commissioners is, that in the conferences re-
specting peace, it was not desired that any thing
in regard to Tehuantepec should appear, because
Of the complication and difficulties which would
result on account of the transfer (of which they
had some general knowledge) made to- Messrs.
Manning and Macintosh without stopping to
inquire at that time what part Of the privilege
was or was not transferred with the author
ty OF the government. 1t was sufficient to
know that transfer had been made; and, as has
been seen from the examination of the documents
in regard to it. that was nothing more than of the
right Of colonization. II wac, perhaps, as is said
in the cited report Of the Senate committee, "a
want of explanation and clearness in fixing the
IDEA with full exactitude; but this cannot be al
legged against the facts and assertions of the very
persons who have relied upon this argument"
Mexico has not denied the solemn declarations
she has made, but has only explained the meaning
and natural sense to be given to whit was stated
by her commissioners. She we'll knows her duties,
and how far they are binding upon her. But from
all the antecodents OF this business and from the
engagements she has contracted it does not follow
that she has at any time approved the transfer Of
the privilege for opening the way Of communica-
ton. of which notice was not given to her, as
ought to have been done, for her approval, in con
formity with the laws applicable to the present
question, including the decree of concession of the
4th March, 1912, in whose spirit and provisions
this obligation is implicit, as has been demon.
strated
These views arc fully unfolded in the aforemen.
toned memoir of the Minister of Foreign Affairs of
Mexico, in which, intoxicating the same, and stat
ing tina, Garay could not transfer the agency nor
the direction of the work because they were con-
fdential charge, and in doing he would be fail
ing in his duty to the government and to the law,
far from transferring legitimate right, he would
have incurred great responsibility, he says, as
follows:
"But the house of Manning and Macintosh has
asserted, in order to weaken these grave charges,
that the government had been previously informed
of the transfer made by Garay.
This is mere evasion. entirely destitute of
plausibity, and only calculated like all that class
Of arguments, to confirm the shallowness of their
pretensions. 1t 10 founded on passage OF q note,
dated September s, ls47, which was addressed
to Mr. Nicholas Trist by the commissioners ap
pointed by the government to negotiate peace |
with the United States; this passage runs thus In
of free passage through the lsthmus
Of Tehuantepec to the South Sea is solicited in |
favor Of American citizens; we have verbally in.
formed your exccllency that some years ago pri-
vege in regard to this matter wac conceded to a |
private speculator, which was subsequently made |
over by the authority Of the same government to |
British suects qf tohose rights Merico cannot dis
pose
From tho phrase in italics, the house Of Man
ming and Mackintosh, in its manifesto, concludes
hat the Mexican government authorized and con
sidercd as firm and valid the transfer which Garay
made Of the privilege for opening the line of COM
muncation through the Isthmus of Tehuantepec.
This Interpretation s wholly unjustifabe. because
The antecedents do not authorize IL, and because,
IA it will be seen, it rests upon an objectionable
anachronism.
"The first remark that presents itself against such
, line Of argument upsets the defence completely,
because the fret question is, at what time before
he date OF that note 18th Scptember) had Garey
,r the house Of Mackintosh obtained the previous
consent Of the government, in order to be able to
'ay with precision that, from the language con-
aimed in that note, il had authorized and consd-
Dred firm and valid the transfer which the for
ner had made to the latter There is no proof
whatever that they had askod for such permission;
md although this mode Of argument unde niably
proves that they had not done SO, they may still
81 A..