Tehuantepec and its Title. I regret that I cannot add anything more to the important memorial referred to, (of 1844,) except to recommend it earnestly to Congress; for this alliance will not only serve to protect us in the present crisis, but by giving to America the political importance to which she is entitled, enable her to contend with the impoverished nations of Europe; and perhaps, by the proposed policy, to become the centre of civilization. "In such a result, what position will be due to Mexico, it is unnecessary to state, nor will I indicate it, since nature herself has pointed it out. "One of the considerations which decided the government to grant the decree of November, 1846, was, that the opening the canal of Tehuantepec would promote a commerce with some of the aforesaid republics, by rendering our relations with them more intimate and active. Persuaded of the importance of every thing connected with this policy, it is left to the wisdom of this august body to provide the méans essential to form a more intimate connection with the Southern republics, and which the existing government had not been able to effect, as well for the few days of existence which were left it, as because it was obviously obliged to consecrate its energies exclusively to the regulation of our interior affairs, and to sustain the unjust and unprovoked war of the North, which has occupied us to the exclusion of other things." Independently of the merits of Garay's application for an extension of the term within which he was required to commence the construction of his work, the government of Salas was actuated by a wish to provide for the defence of the Republic, by the encouragement of immigration. 9 warlike race of colonists, who should become the defenders of their adopted country against foreign aggressions, and against the savage enemies upon the northern frontier. In pursuance of this policy, Texas was opened to immigrants, and the most liberal donations of land made to empresarios and actual settlers. The government of Salas seems to have adopted the same policy, confining, however, the invitation, as far as possible, to Europeans. After having descanted upon the extent and fertility of the Republic, the minister asks,-Of what value is all this without population? He then affirms that the development and defence of the Republic alike demand the introduction of foreign immigrants. A plan had been proposed to the government to encourage desertion from the army of the United States, because it was composed, in great part, of foreigners who would enter with alacrity that service which should present the greatest inducements." "This would weaken the invading army, and people the invaded country with a race generally devoted to industrial pursuits." Upon this theory a decree was published, offering to deserters rights of citizenship and employment in the army or navy of Mexico. In pursuance of this attractive policy, the government ordered land to be allotted to "Rollan, a deserter from the American army." In respect to the decree of the 5th November, 1846, regulating the colonization of the lands conceded to the grantee of the way of communication across Tehuantepec, the minister goes on to say: "The government in publishing this decree, as in regard to that respecting the liberty of the press, carried out the purposes of the Congress of 1845." "The decree of Salas, in relation to Tehuantepec, not only confirmed those of the 1st March, 1842, the 9th February and 6th October, 1843, but by postponing for two years the term fixed for the commencement of its construction, promoted the completion of the enterprise, which had been retarded by the consequences of our revolution." It is well known, that after the decla- The minister then explains in detail ration of Mexican Independence, it be the motives of the several provisions of came the policy of the government to en- the decree in relation to the colonists. courage the immigration of a hardy and The exemption from any obligation to bear arms for twenty years, was intended colonies, to restrain the "usurpations" of to counteract the apprehension amongst the United States of the North, and the Europeans that immigrants would be in- "irruptions" of the savages. volved in the revolutions of the Republic, which were understood to be perennial. For a similar reason colonists were exempted from paying Federal taxes during the same period upon implements of agriculture or of the arts. The same exemption was granted upon the material necessary to construct and preserve the way of communication, and for the term of six years articles of subsistence, clothing and provisions, were admitted duty free. All these privileges were granted to attract immigration. This system of defence perfected, and the war with the United States "decorously" terminated, the minister considers that the foundation of a power will have been laid that will establish the independence of his country. There was, however, an obvious dilemma in the scheme of colonization. The minister had proved that the Republic was not safe without additional population. There was a natural fear that the introduction of foreigners might be followed by the same results as in the settlement of Texas. The latter consequence was to be prevented by the scrupulous exclusion of slavery, and of all persons whose government was at war with Mexico. With the object of competing for that immigration to which, it was alleged, the United States of the North owed so much of their prosperity, the price of public land in Mexico was fixed at just half the minimum price charged by them. The grantee was prohibited from introducing the subjects of any nation at war with Mexico; and it was enacted as an express condition, that colonists should renounce their citizenship, and subject themselves to the laws upon the subject of colonization. "The object of this condition was to close the door against reclamations, and because that would constitute the best policy for augmenting the permanent population of the Republic." The decree provides further, that the enterprise shall submit, for the approval of the government, the contracts (of colonization) which it shall make. was done because of the meritorious efProvision is also made in regard to the forts of the grantee; because of the "streams necessary for the enterprise, and indemnity is decreed to the proprietors of the waters taken for that purpose." "The government believes that it has effected a positive good by completing the arrangement of this important business, which will bring so much honor upon the Republic, and whose completion will secure such immense advantages to our country and to the world." The argument of the minister is throughout worthy of a statesman. He has boldly affirmed that the true policy of the Republic is to invite foreign defenders. He has contended that the most powerful obstacles to be anticipated are religious intolerance and the insecurity of private rights. He expects the new constitution to obviate these objections. It is very plain, from the testimony furnished by the document referred to, that the renewal of the grant to Garay was with no purpose of favoritism. It "revolutionary interruptions" to this work; because it would "place in the hands of Mexico the commercial key of two continents." The grant of a way of communication would constitute the source of commercial prosperity, and the means of promoting a great American league for the defence of its members against foreign aggression. The provisions regarding the colonists, to be introduced by the grantee, were common to other colonists immigrating into other parts of the Republic. It was, therefore, part of a great system, designed by the government of Salas, to defend the country, and to "sustain with honor the national flag." We are satisfied, that it will appear from the document referred to, and also from the report of the Commissioners of He expects the Tehuantepec proprie- Colonization, that the true motives of the tors to construct a canal which will extension of Garay's grant have been facilitate a defensive alliance with the herein set forth.* Nor was there any South American states. He thinks that intention of entrapping the colonists into the same liberal system of exemption a renunciation of their citizenship that and protection provided for in the general law of colonization will create military * Report of Committee on Colonization. Tehuantepec and its Title. 11 they might be subjected to peculiar dis- amendments, was adopted, and constitutes qualification, but it was intended to sever (at the last advices) the public law of the imaginary tie that bound them to Mexico. their native country and cause them to become permanent citizens, pledged to maintain the honor and defend the integrity of Mexico. In continuing our review of the Statement, we shall adopt the condensed exposition of its contents, prepared by Mr. Benton. It will save quotation, and present the allegations in a form to which Mexico can have no objection. Such was the policy of the government then; and if it has changed in regard to the present proprietors of the Garay 1. That the Garay grant is defunct grant, it is because they are citizens of upon its own limitations, and so declared the United States, and apprehensions by the Mexican Congress. may be entertained that their acquisition of the rights accorded to others may be inconsistent with the interests of Mexico. The foregoing views have been based upon the report and accompanying documents of an officer of the Mexican government, of unusual ability and of undoubted patriotism. he states that the engineer, D. Cayetano Moro, had returned to undertake the work.” The grant was renewed on the 5th November, 1846, for two years, and the Statement admits that "Garay endeavored to prove that he had been occupied on the work, with few interruptions, until the 26th October, 1848; in proof of which, he inclosed a note from the Prefect of Acayucan, dated 25th November, 1848, The report is a witness at once impar- to the Governor of Vera Cruz, in which tial and conclusive. It was written with no anticipation of the present controversy -with no eye to the rights of Garay. In explanation of a system of policy, he has incidentally told the motives which actuated the government of Salas in decreeing the identical bill of extension passed by the Chamber of Deputies. This explanation totally disproves the insinuation that the decree was the result of favoritism, or that it was the purpose of the government to resume the grant or entrap the proprietors into such a renunciation of their rights as would only render necessary a decree of confiscation to make them the unprotected victims of avarice or jealousy. Mexico, however, has made a distinct admission that Salas was competent to decree an extension of the grant to Garay. The government sanctioned the transfer of certain rights derived from the grant by its assent to the contract, July, 1847. It acknowledged the validity of some transfer of rights derived from the same grant by the declaration of its commissioners, September, 1847. The authority of Salas was then adequate to authorize a valid transfer of rights derived under his decree of extension. But all the rights claimed and conceded by Garay resulted from the same instrument. How, then, could the transfer of one right be void for want of authority in the grantor, whilst another derived from the same deed is admitted to be valid? We will only add, that during 1847, the constitution of 1824, with certain Then follows the assertion, that the works had been prosecuted negligently, and not in good faith; consequently the condition of prosecution had not been complied with. Under a constitutional government, a question affecting the rights of a private individual, ought, upon an allegation of forfeiture, to have been submitted to some impartial' arbitrament, a quo warranto should have been issued, the parties should have been cited before a judicial tribunal, and the truth of the allegation should have been inquired into with all the solemnity of legal form. Here, however, the government repeals its contracts, stigmatizes the grantee as unworthy of credence, and impresses her own version upon the controversy between them. But the charter was not forfeited, for certain conclusive reasons. A public war was waged by the act of Mexico, from April, 1845, to June, 1848. During the war, Mexico was invaded by a foreign power, which obtained possession of her capital, and blockaded her coast. In accordance with the terms of a treaty, under which Mexico ceded away nearly half her actual territory, the invading army was withdrawn, and peace was declared. During this war the efficient prosecu tion of a work of internal improvement within the invaded country was impossible. Now it is a maxim of common law, that where a condition is rendered impossible of fulfilment, by the act of a grantor, the failure of the grantee to perform the condition cannot be alleged as a forfeiture of the grant. If, then, the period of interruption be deducted from the term of the grant, it will be plain that there was no forfeiture for failure to prosecute the work within the time specified by the charter and the several acts of extension. The grantee moreover proved the continuous prosecution of the work of construction by the testimony referred to. 2. That the grant is not transferrable in what relates to the inter-oceanic communications, but only in the colonization part, and that when the transfer is made to foreigners only, on the condition of renouncing their nationality. The reply to the first branch of the proposition is found in the language of the charter. It grants "to Don Jose de Garay the exclusive power of opening and constructing, in the Isthmus of Tehuantepec, a communication between the Atlantic and Pacific oceans, with the obligations, rights and advantages contained in the pre-inserted decree, dated 1st instant, conceding to him in full right of property and dominion, all the waste lands on the isthmus within ten leagues of the proposed communication." "That in the name of the Supreme Government, and under the most solemn protests, he (the President) declares and promises that all and every one of the concessions mentioned in the pre-inserted decree shall be honorably fulfilled, now and at all times, pledging the honor and public faith of the nation to maintain the proprietor, Don Jose de Garay, as well as any private individual or company, succeeding or representing him, either NATIVES or FOREIGNERS, in the undisturbed enjoyment of all the concessions granted. Holding the national administration responsible for any act of its own or its agents, which, from want of proper fulfilment of the covenant, might enforce the interest of the proprietors, all of course subject to the exact tenor of the inserted decree." From this, it is plain that Garay was empowered to transfer "to any private individual or company," either natives or foreigners, all the concessions granted; so that his successors or representatives had a right to demand of the Mexican government the execution of that solemn covenant which pledged the honor and public faith of the nation to maintain them in possession. This covenant and guarantee has never been modified. The right of way is still transferrable without limitation. This will be seen from an inspection of the acts of title. The charter of the 1st March, 1842, recognized three distinct classes of grantees: To Garay, and his representatives and assigns: The exclusive right of constructing and making a way of communication across the Isthmus of Tehuantepec. A grant in fee simple of all the unoccupied lands within ten leagues of the way of communication. An exemption from all duties upon materials and supplies employed in constructing a way of communication. To the citizens of all nations in amity with Mexico: 1. The passage across the isthmus having been opened, it is hereby declared neutral and common to all nations at peace with Mexico. 2. Under no excuse whatsoever will the "government lay any tax or impost upon any of the articles passing through the isthmus during the period in which the proprietors shall have the exclusive enjoyment of its proceeds." And in no case shall they (customhouse officers) "interfere in the collection of transport dues, nor in the collection of freights, lighterage, tonnage, or any other class of dues, for none shall be payable by vessels loading or unloading for the transport of effects, so long as the communication shall belong to the negotiation." The government also engages not to impose any contributions or taxes upon travelers or effects in transit, until the expiration of the aforesaid term of fifty years. ART. 6. All foreigners are permitted to acquire real property, and to exercise any trade or calling, not even excepting that of mining, within the distance of fifty leagues on either side of the line of transit. That territory shall be the country of all who may come to establish themselves, subject, however, to the laws of the Republic. The grant of Garay then contains: 1. An exclusive right of transit. 2. A grant of vacant lands in fee-simple. This grant of lands has been loosely Tehuantepec and its Title. 13 characterized as a "privilege of coloni- ment of houses, shall be exempt from all zation." It was a donation made to duties for the term of six years, to be promote the construction of the way of computed from the establishment of the communication, and this is, no doubt, an colony; but in case such articles should implied condition of the fee simple, but it be intended for consumption in the inte is not expressed in the charter. rior, they shall be subjected to the general existing laws of the republic. But there is no condition that Garay or his successors should colonize the lands. The clauses which relate to that subject confer certain privileges upon the citizens of foreign states coming to reside upon the granted lands, as an inducement to immigration. But the rights of the colonists under the grant underwent a farther modification. We have elsewhere stated that the Chamber of Deputies had passed a bill which was pending, upon a favorable report from the senate committee, when the revolution dispersed the Congress, and that Salas enacted the identical bill by his decree of the 5th of Nov., 1846. This bill or decree was necessary to renew and extend the original charter. It therefore confirms the acts of title, as follows: 1. The decrees of 1st March, 1842; 9th February, 1843; and 6th October, 1843. It extends the term within which the work may be commenced, for two years, from 5th November, 1846. It provides that the rates of light dues, pilotage, and the transmission of letters, shall be fixed by a special law. It provides that for all private title within the granted limit of ten leagues, the proprietor of the grant shall receive an equivalent in waste lands lying else where in the Isthmus. It exempts materials for construction of the way of communication from any duty. But it contains the following articles in regard to colonists: ART. 7. All colonists making settle ment under the enterprise to carry out the project, shall be exempt from military service for the term of twenty years, excepting only in case of foreign invasion of the isthmus. ART. 8. They shall be similarly exempt for the same period, from all contributions not in the nature of municipal ART. 12. No colonists shall be allowed to settle who are at the time citizens of a state at war with the republic. ART. 13. It shall be an express condition in all contracts with colonists, that they shall renounce the privileges of their original domicile so long as they reside in the country, subjecting themselves to all the existing colonial regulations which are not in conflict with the present law. ART. 14. The enterprise shall submit, for the approval of government, all contracts which it shall make for the introduction of families and laborers; and it shall keep a public and authentic register of all its transactions in respect to all matters of colonization. These restrictions upon the colonists were proper. If they came to reside in a country they should abide by its laws, and submit to its jurisdiction. But the proprietors are referred to in the contract of July, 1847, with Manning and McKintosh, in connection with the denationalization of the colonists. The President says: "In this contract no mention is made of the renunciation of nationality as required by the 13th article of the law of the 5th November, 1846. This renunciation, according to that law, should be made by the colonists in the most express and distinct manner, so that whatever might occur, on no account whatever, or under whatever pretext, could the colonists or proprietors demand foreign protection, or any other rights than those allowed by the law of the country to which they are subject, both in person and property." Now the only obligation imposed upon the colonists or proprietors, grew out of the 13th article of the decree of 5th Nov., 1846, which says: "It shall be an express condition in all contracts with colonists, that they shall renounce the privileges of their original domicile, so long as they reside in the country, subjecting themselves to all the existing colonial regulations which are not in conflict with the present law." If, therefore, by virtue of this article, the proprietors have bound themselves to submit to colonial regulations, the article |