The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-08-06

whlch rest upon the facts drawn from the archive
Of Mexico, and embodied ia the infaliible pam
phlet referred to-. The next assertion made b
Veridicus s in regard to the acknowledged {
Mexico Of the transfer by Garay the British sub
jscts. Manning and Macintosh. threads as follows
"Garay, to whom General Santa Anna, on tn
LIST Of March, 1912, made tho grant which ha
given rise to the present question, transferred 4
Messrs, Manning and Macintosh, English sub
jec'. on the tn Of January. ls47. the right to CO
lon!ze. and not tho prsoiiegs Of opening tie soGy
communication, of which that formed part, ns ap
pears from the public contract, in which II
stated that ne does not gius them any right to carry
on navigation from one sea to the other Th'
Mexican government. on the 18th Of July. 1s4s
was made acquainted with this transfer limited Il
the object Indicated"
This is point of such imp lance in this contro
versy, that the reader must be referred to the RE
nonstrance" for the argument. Nis in reply to tn
report Of the Senate Of Mexico, which accompanied
the resolution of annulment.
The report then commences the effort to invali
date the title by asserting that the transfer Of Ga
ray OF the rights Of transit was void, because h,
bad given no notice to the Government of suct
transfer.
BY reference to the charters granted to Garay
by the Mexican government, they will be found te
contain provisions which may be thus classified:
l. Grant of the right of way Of communication
from sea to sea across the Isthmus OF Tehuantep
2. A grant Of certain rights of colonies ton.
8. grant OF certain other rights not necessar nv
to be now recited. ..a...
Ia
distinct recognitions Of the unlimited right OF
transfer to natives foreigners; nor does It con
tain any obligations whatever to give notice to the
government of any such transfer, nor indeed any
notice OF any sort the grant Of the right of transfer
ia follows:
"The supreme government declares and pro.
mises that all and every one of the concessions
mentioned in the pre.inserted decree shall be ho.
morally fulfilled, now and at all times piedging
the honor and public faith Of the nation to main
tain the protector, Don Josei de Gsray as we'll as
any prirate indir,duaLs Company, succeeding or
representing him., either natioes or for1gners in the
undisturbed enjoyment of all the concessions
granted, holding the national administration re-
sponsible for any acts of its own or its agents,
which, from want Of proper fulflment of the cove
nant. might n;urc the intercst Of the proprieors;
all, OF course, subject to the tenor Of the pre-
inserted Decree" (Of LIST March, lS42)
In the decree Of the 9Th Of November, 1876, will
be found the following:
Art. IL. "The enterprise shall submit for the
approval Of government all contracts which il shall
make for the introduction Of families and aborers,
and it shall keep public authentic register Of
all lts transactions in respect to matters Of colo.
nizatiOn."
1t has been seen that when Ga,ay contracted
with Manning and Macintosh, he COMPLIED with
the requirement Of the quoted article by notifying
the government OF the contract of colonization,
obtaining it's assent, with such an Interpretation Of
the article OF colonization its terms in the opn
ion OF the government, required.
Neither Manning and Macintosh nor Garay
asked the approval Of the transfer Of the rights Of
transit, because it not necessary under either
of the charters that they should do So
That Garay did not concede his reservatit ms of
the rights Of transit as also his intention trans
fer them subsequently, is shown by the 9Th article
of the contract itself:
"ART 9. AS soon as the time shall arrive for
treating Of the way Of communication between the
two seas, Don Jose Garay and Messrs. Manning
& Macintosh, and John Schneider, will enter into
for the formation Of company for the
execution Of said work OF transit GA the Isthmus"
In accordance with this article, lie subsequently,
the right Of transit and o,her fran
chises to the same parties After the quotations of
the 9Th article of the contract between Garay and
Manning & Macintosh, your memorasts read
with much surprise the following assertion in the
Senate report: "The house Of Manning & Mac
intosh presented itself Tin the notice Of 18th Janu
airy, lS49, OF the suspension Of the work) the
grantee Of Garay, not only in respect to COLOMBIA
ton, but in every thing else having relation 10 the
way OF communication between the two seas. re-
porting itself as the successor, owner and posses
sor OF oil the rights granted to him. This idea
for the first time made knoun to the government. It
is true that the contract which Garay made with
the said house, and with that Of Schneider. of
London. approved, as has been seen, with the mo-
dfication contained in the order Of the 9th July,
lS49, he conveyed to them the lands to which lie
had a right, destined Tor colonization; but from
none Of It's clauses it be- deduced that on this
cesslon and transfer was included every thing re-
atng to the way Of communication"
Now, the 9Th article Of the contract quoted shows
that the right Of transit a reserved subject Of
ransfer, and that it was to be conceded to Man
ming Il Macintosh at subsequent period, for the
purpose Of organizing joi mt stock company for
the construction of the way of Communication upon
the lsthmus.
In the classification Of powers arising under the
charters which we have presented, 1t will be seen
hat the rights of colonization and transit are dis
tinct. The charter Of the LIST March, 1872 allowed
all foreigners "to acquire real property and to
ercise any trade or calling, not even excepting
that of mining, within the distance of fifty leagues
either eide of the line of transit That territory
shall be the country of all who may have come TO
establish themselves there, subject, however, to the
laws of the republic"
This article was susceptible OF abuse. Under
it's provisions an enemy might have introduced
its citizens into the territory OF Mexico, and expe-
riencc had taught the Republic that it would be
more wise to discriminate amongst the immigrants
who might be attracted by the liberal terms Of in.
accordingly it was materially modified
by the decree of the 9Th November 1876, which re.
1ured foreigners to renounce the privileges Of their
original domic SO long rs they reside in this coun
try, subjecting themselves to NIL the existing colo
NAL regulations which are in conflict with the
present law" The same decree exempts colonists
rom military service and from all other than inu-
nicipal ia xation.
1t prohibited colonists from settling who are at
the time citzens Of a State at war with the re.
public.
1t required the enterprise "to submit for the ap-
prevail OF government all contracts which it shall
make Tor the introduction OF families and laborers
and to keep public and authentic register Of all
ts transactions in respect to colonization.''
These prudent regulations were due to the Mex
can government for its protection against the
abuse Of the privileges Of immigration. But there
was no proprety in requiring either a notice or
assent to the tSanster Of the right of transit. The
work was too stupendous to be executed without
he grant Of liberal privileges. Its ransfer to for.
sign capitalists had been permitted and was indis.
oensable. nor could any purchasers be expected to
invest their means in contract subject u out
'tandng right Of notice and approval in the Mexi.
ian government; still less, if there reserved
light Of modification in the government since the
purchase Of the rights subject to such reservation
u power, would have been unwise and futile. The
Government would have held the purchaser bound
{ the contract were an advantageous one, but
would have insisted upon modification if other
wise. Such a contract would have been a nulty. |
But If the Mexican government contends that 1t
entitled to notice Of the transfer Of the rights
II transit, then it had notice tina. Garay claimed
he reservation of those rights and intended their
transfer, and again notice that the transfer had
been contaminated by the mmunicaton Of Man |
hing Macintosh OF 18Th June, lS49.
We could not have conceived, however, that at
er 80 distinct recognition Of tho validity Of tho
iecree Of 9Th November, 1896 that contained in
he act of the (soys nm nj nj I'M