The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-08-16
VOL Nv.
THE REPU BLIC.
[coMMuNIc ATRp.l

toHeiet Waue ny 70 mesoT6. mannlng ana
Macintosh on the 7th of January, ls47, had been
| limited to the right to colonize. and not to the
privilege If opening the toay Of communication; Sc
cond, that only of the former and not of the latter
| had formal notice been given TO the Mexican gov
| ernment on the 18th Of July, lS4s. When
affirmed the first, relied not only the contract
Of that date, referred to in the fifth clause of which
il appears that the transfer was not extended to
giving them any right 70 carry on navigation from
one to the other, the reservation which the said
Garay made in il, repeated in the ninth clause,
| declaring that when "the time should arriue for
treating about the construction qf the ,oay Of com.
muncation bet,Osen the too seas, Garay and the said
Messrs. Manning and Macintosh would enter into
an agreement in regard to the formation Of com
pany for the execution Of the said ,oork in the tram
ait Of thu htasss, and that the said transfer was
"uithout connerion ,oih the ,oork Of the consiruc
ton Of q ,pay Of communicaton;" but also in the
statement made by the said Garay the 18th Of
May, l847, to the Mexican government, in which
he says expressly that the contract he had made
with Messrs. Manning and Macintosh, was "ifs
bsftpeea the too seas"
As regards the second, I had in view not only
the report of the Senate, in which extract ia
given from the e1pediente on the subject. and
wherein every thing 10 stated very much in detail
but also the instructive memoir of the Minister Of
Foreign Affairs, wherein 1t appears that Garay
having given notice TO the Government on the l4th
May, ls47, Of this very contract Of the 7th Janua
ry, and serious being observed therein, it
was approved in note dated the 9th Of July; but
it was also required that the contract should be
amended, together with the declarations and mod
ifcations made in it. Such was done; and although
on the 26th of the same month 1t was written out,
no notice was given to the Govern ment of it's di
rections having been complied with until the 18th
of July, 1848, when the said contract was trans.
mited to it; consequently this is the date when it
had formal notice OF the contract.
As this contract. as we have seen, was limited
only to the right Of colonization, and as no other
communication was afterwards addressed to the
Mexican government until the 18th January, l649,
when Messrs. Manning and Macintosh suddenly
appear not only the fransferses of the right Of
colonization, but also of the privilege Of The construc
tion Of upay Of communication be,oeen the too seas
through the Ishnus Of Ithuantepee, it il clearly de-
duced that notice of the former transfer only had
been given to the, Mexican government. and not
of the latter, which only at the last date mentioned
came TO its knowledge.
In order to answer the remarks to which these
facts have given rise the author of the article
iterates what he had already stated in pamphlet
entitled "Remonstrance," and confines himself to
asserting: First. That the fact Of Garay not having
given notice to the government OF the transfer of
the privilege of communication. was not a cir
cumstance to invalidate it. Second. That neither
was its approval necessary in order to give this
transfer its effect alleging for this that the rights of
opening the inter oceanic communication, that OF
colonization, and the others contained in the dc,
decree not requiring that notice should be given
to the government Of the transfers which might be
made nor that it's approval should be asked for and
considering on the other hand that in the contract
relative to the privilege Garay might transfer bis
rights to Mexicans or foreigners, it was evident
that to do without such requisites, did not in
validate the frah.fer; for, although they were ex-
pressly required by the decree Of 9Th November,
1916, it was only for the right Of coloni zation,
which Garay complied with when he made the
contract with Messrs. Manning and Macintosh;
but, as has been stated, the rights of co!onizing
and that of making the communication being dis
tinct, the provision in respect to the one did not
include the other. This is in brief tho argument
in oil its force which has been brought forward in
the said pamphlet, ampl6ed with quotations from
the words of the public contract executed in virtue
of the aforesaid decree Of the 1st Of March, 1912,
of the first article Of the came, Of the l4th acce Of
the subsequent decree of 9Th November 1916, and Of
the 9th article Of the contract of7th January lSI7,
already mentioned
Whoever will carefully examine the original de-
cree of concession will observe that il does not and
cannot comprehend every thing relative to and
connected with the aforesaid privilege. There are
points which were left to ordinary legislation. to
whose rules and preccpts were to be subjected all
that could not be expressly altered and modified.
Thus, for example, in So. art. the obligation ia
imposed on Garay to construct in the ports the
necessary works for shelter and convenient use,
and to construct therein forts and warehouses;
and no one will say that all this was TO be left
to the fancy, within, and discretion OF the con.
tractor, but that they to be executed in con-
formity with the pre- existing laws in regard to
public works. go far as applicable to the object
in question. In the third section of the same
ticle it is provided, that one fourth of league
might DO occupied on each eide OF the line upon
which the road should 60, even though it might
be private property. the contractor paying at
Just valuation Tor what should be thus occupied;
and yet the formalities and requisites with which
the condemnation thereof was to be accomplished
we're not done away with, among which they are
Rv fhe he 1nssfd rtie
to be collected and divided between the government
and the contractor; and although nothing is said as
TO the mode of determining them, neither could il
be supposed that this right of sovereignty could
be exercised by anybody, and as he might please,
but by the competent authority and in conformity
with the rules laid down for fixing such duties. In
quire landed property, and to devote themselves
to every specics Of industry; and no will infer
that this could be done print copients and ad lib
itum, but in the manner and form prescribed by
in conformity with the eighth article, were to be
employed in the collection of the duties, since no
mention 10 made therein as to how they were to be
appointed, and what would be their duties, nnd
the mode of performing them-a!l this remained
subject to the respective laws.
Now there is nothing expressly stated in regard
to all the foregoing in the decree OF March |, ls42;
and yet in all these cases and the other and
existing legislation. The same must be the case
with regard TO the notice and consent Of the gov
ernmcnt in order that the transfer and ccssion Of
rights might be valid and binding
To the grant was given the character of a con-
tract in the last article Of the appropriate Decree
and "taking into consideration Gas was said in
the report Of the Senate Committee) the object
to which it relates, the clauses it contains, the
rights IL gives, and the obligations it imposes, It
is seen that it 10 real contract Of partnership" As
sis contract lie founded upon the reciprocal conf
dence OF the contracting parties, and Ia entered
into by consent, II 10 clear that for the validity Of
the cesson or transfer, il was necessary to obtain
the express approval Of the government, which
could not DO tie cass in regard to persons who
were not known; and, for the same reason, il was
also necessary that the proper notice should be
given.
An effort has been made to get over this diff
Guilty, and to be rid Of the quotations and autbori.
ties upon which the report Of the Senate committee
isfounded, by in the aforesaid pamphlet
to render II doubtful whether this was n partner.
ship contract. though without alleging any reason
to overturn this opinion; bot only looking at the
disadvantagcous position in which one of the con.
tracing parties found itself, which would prove,
at most, that the contract would be bad one Tor
that party. but not that it Ia not partnershp con-
fsu>