INTERNATIONAL EXHIBITIONS; INTERNATIONAL CONFERENCES; MARITIME CANALS; PACIFIC CABLES; RAILROADS.

THIRTY-SECOND CONGRESS, FIRST SESSION.

August 30, 1852.

[Senate Report No. 355.]

Mr. Mason made the following report:

The Committee on Foreign Relations, to whom has been referred the message of the President of the United States of the 27th July, 1852, communicating the correspondence between the Government of the United States and the Republic of Mexico, respecting the right of way across the Isthmus of Tehuantepec, have had the same under consideration, and after giving to the subject all the deliberation which its importance demands, now respectfully report:

That the right of opening a communication, by artificial way, between the Atlantic and the Pacific, across the territory of Mexico at the Isthmus of Tehauntepec was conceded to Don José de Garay, a citizen of Mexico, on the 1st of March, 1842, by General Santa Ana, then President of Mexico, vested with the "supreme power." By his decree of that date, in the name of the " "the supreme government, honor and faith of the nation are pledged to maintain the projector, Don José 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."

In the following year, Gen. Nicholas Bravo having succeeded to the Presidency, the grant thus made by Santa Ana was recognized and affirmed by his decree of the 9th of February, 1843, pursuant to which orders were issued by the Government of Mexico to the department of Oaxaca and Vera Cruz to put Garay in possession of the lands conceded to him by the grant of 1842 and directing that every facility should be extended for the prosecution of the work. These decrees were executed by those departments, and Garay, the grantee, put in actual possession of the lands conceded.

On the 6th October, 1843, Santa Ana, being restored to power, issued a further decree, reciting that the surveys by Garay being completed and the work about to commence, he ordered the governors of the departments of Oaxaca and Vera Cruz to furnish 300 convicts to be employed on the work, and by another decree of the 28th December, 1843, the time for its commencement, which was to expire on the 1st July, 1844, was extended to the 1st July, 1845.

The Government of Mexico during this period was subject to frequent revolutions. Santa Ana, driven from power in the winter of

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1844, was succeeded for a short time by General Paredes, who in turn yielded to Mariano de Salas as Dictator.

In the distracted and unsettled condition of the country, resulting from constant revolution, the grantee of the Tehuantepec way, foreseeing that he would probably be disabled from commencing operations so early as July, 1845, procured the passage of a law by the Mexican Chamber of Deputies granting further time to commence the work. In the Senate this bill had a favorable report from the appropriate committee, and, it is not doubted, would have received the sanction of the Senate, when, by a sudden and violent popular convulsion, the entire Congress was dispersed.

In November, 1846, Salas, being still invested with supreme power as Dictator, promulgated a decree, which was a copy of the law thus accidentally frustrated, giving time until the 5th of November, 1848, for the commencement of the work, and the work was actually commenced prior to that date.

So much for the history of this grant whilst in the hands of the original grantee, a citizen of Mexico.

During the years 1846-47 various contracts were entered into between Don José de Garay, the grantee, and Messrs. Manning and McIntosh, subjects of Great Britain, which were formally recognized and consummated at the City of Mexico on the 28th September, 1848, and by which the grant aforesaid, with all its privileges and incidents, was transferred to the latter.

On the 5th of February, 1849, this grant was assigned to Peter A. Hargous, a citizen of the United States, who subsequently entered into a contract to assign and transfer the same to certain citizens of New Orleans on terms intended to secure the necessary capital to execute the work. These transfers form part of the documents communicated. In December, 1850, a party of engineers, with a competent equipment, was sent out from the United States, at great expense, by the American assignees, to complete the necessary surveys on the Isthmus, who continued so employed until the month of June following, when they were required to discontinue the work and to leave the country. This was effected through a letter from the governor of Tehuantepec, dated June 3, 1851, transmitting from the governor of Oaxaca an order from the minister of relations in Mexico, issued in pursuance of a law approved by the President of the Mexican Republic on the 22d May, 1851; by which law the grant to Garay was made null and void.

The committee have thus briefly traced this grant from its inception to its regular and legitimate transfer to its present holders, all of whom, it is believed, are citizens of the United States.

It will be seen that by the terms of the grant and the decree of 1842, on which it was founded, the "honor and faith" of Mexico were pledged to maintain the grantee, "as well as any private individual or company succeeding or representing him, either natives or foreigners, in the undisturbed enjoyment of the concessions granted."

It will be seen that the period for commencing the work was extended from time to time by the Mexican Government until it expired on the 1st of July, 1845, under the circumstances detailed above. And it will be seen that as soon as the Government became once more established this single lapse was cured by the decree of Salas of November, 1846, giving two years' further time, until the 5th November, 1848, tc commence the work, and that the work was actually commenced within this period.

The committee will now proceed to show that the Mexican Government has, subsequently to this decree of November, 1846, recognized, in the most unequivocal manner, the binding validity of this grant, and admitted its obligation to abide by it.

In 1846-47 the assignment of the grant to Manning & McIntosh was duly notified to the Government of Mexico, and on their complaint President Herrera issued orders to the governors of Oaxaca and Vera Cruz to prevent the cutting of mahogany on the lands granted by any other than the English company.

In 1847, while the treaty of peace was under negotiation, Mr. Trist, the commissioner on the part of the United States, by instruction from his Government, proposed a large money consideration to Mexico for a right of way across the Isthmus of Tehauntepec, and was answered "that Mexico could not treat on this subject because she had several years before made a grant to one of her own citizens, who had transferred his right, by authorization of the Mexican Government, to English subjects, of whose rights Mexico could not dispose." After the assignment of the grant to the present American holders the minister of the United States in Mexico was instructed by his Government to apprize that of Mexico of the desire of this company to commence their work by a thorough survey of the isthmus; and the minister was further instructed to make overtures for a treaty securing to the enterprise the joint protection of the two Governments. The Mexican Government, as we learn from the correspondence of Mr. Letcher with the Mexican minister of foreign relations, "made not the slightest opposition in forwarding passports, and issued orders to the departments of Oaxaca and Vera Cruz, not only to avoid interposing any obstacles in their way, but, on the contrary, to afford them aid and hospitality." "The engineers," Mr. Letcher adds, "were accordingly sent, the ports thrown open for their supplies, and more than $100,000 have been expended in surveys, opening roads, etc., besides a large sum of money in furnishing materials," etc. This is not all. The Government of Mexico at once assented to enter into negotiations for the proposed treaty, and a convention for the joint protection of the work thus to be executed by American citizens, as assignees of the Garay grant, was concluded at Mexico in June, 1850, and sent to the United States. To this convention certain modifications being suggested by the Secretary of State at Washington, it was returned to our minister in Mexico, and the whole terminated by a new convention, signed at Mexico on the 25th of January, 1851, with the approval of President Herrera. This last convention was ratified by the Senate of the United States and returned to Mexico, and finally rejected by the Mexican Congress in April, 1852.

It should be remarked that by the twelfth article of this convention it was required that the holder of the Garay grant (then being Mr. Hargous, an American citizen) should file with the Mexican minister at Washington his written assent to the convention before it should be submitted to the Senate of the United States for ratification. This was accordingly done, on the 21st February, 1851, through the Secretary of State; but the Mexican minister declined to recognize it on the ground of absence of instructions from his Government.

Previously, however, to the rejection of this convention by the Mexican Congress the law was passed, before adverted to, annulling the decree of Salas of November, 1846, and with it the Garay grant. The rejection by Mexico of the convention concluded with the approbation of President Herrera, and subsequently ratified by the

Senate of the United States, however calculated to disturb the harmony of the relations between this Government and Mexico, had not the slightest effect upon the validity of the Garay grant, nor is it so pretended. On the contrary, the sole ground upon which Mexico rests for the vacation of this grant is that it was forfeited by failure to commence the work before the 1st July, 1845, and that the decree of Salas of November, 1846, which cured the alleged forfeiture, was null because he was in possession of supreme power by usurpation, or because he transcended the powers of a usurper. And this strange position is assumed by Mexico in the face of the repeated subsequent recognitions of its existence and validity which are herein before recited. Respect for that Government alone restrains the committee from speaking of this position in the terms it would seem to require. The Government of Salas was that of Dictator, vested with supreme power. It was acknowledged and submitted to by the people of Mexico and treated with, while it lasted, as the Government de facto. After having accomplished the purpose of creating a federal system, an election for members of Congress was held by his decree, which met pursuant thereto. To that Congress the Dictator communicated the decrees made by his Government ad interim, and with them this very decree of November, 1846.

Amongst the decrees thus issued during the dictatorship of Salas are several of the charactor of general laws, not one of which was disaffirmed by Congress, nor was his authority ever questioned as the lawmaking power for the time being, until found convenient to do so for the purpose of annulling this grant after it became the property of citizens of the United States.

The doctrine that the government de facto is the government responsible has been fully recognized by Mexico herself in the case of the dictatorship of Salas, as of those who preceded him. It is a principle of universal law governing the intercourse of nations with each other and with individuals, and this Government can not and ought not to treat with indifference a departure from it by Mexico in the present instance.

There is a remaining view of this question which the committee are not at liberty to disregard, and that is the embarrassment into which the relations of the two Governments is thrown by the conduct of Mexico in the negotiations which have taken place in reference to this grant.

Two formal conventions, having for their basis this grant of a right of way, the value and importance of which to the people and Government of the United States was fully exposed to Mexico as the inducement on our part to negotiate, were actually signed at the City of Mexico by ministers duly empowered by their respective Governments, the last of which, formally ratified by the Senate, has been rejected by the Mexican Congress.

The committee are aware that a refusal by one government to enter into treaty stipulations with another upon a prescribed subject should not as of course be considered an indication of unfriendly feeling; yet regarding the circumstances attending the protracted discussions which terminated in the second convention spoken of above, with its prompt rejection by the Congress of Mexico; regarding the fact fully made known to Mexico, that the interests of the Government and the citizens of the United States were deeply involved in obtaining the right of way proposed; and finally that it has been refused at last by the discourtesy of rejecting a treaty proffered by the United States,

and by the violent sacrifice of a valuable property belonging to citizens of the United States, for the preservation of which the “honor and faith" of Mexico were formally pledged, the committee can not but look on the occasion as one authorizing if not requiring this Government to review all of its existing relations with the Government of Mexico.

Certainly in what has passed there is to be found but little assurance of that friendly feeling on the part of that Republic which leads nations to connect themselves by treaty obligation, or which makes it desirable to continue such as have been previously contracted.

In the correspondence submitted with the message of the President the committee have seen with entire approbation that the executive department has been fully impressed with the importance of the questions involved in this controversy, and of the grave attitude they may assume should Mexico persevere in her refusal of the redress which is required at her hands.

In a letter from the Secretary of State to Señor Luis de la Rosa, the Mexican minister at Washington, dated April 30, 1851, after an able and comprehensive review of the whole question, the Secretary, referring to the probable rejection of the treaty by Mexico (which a letter of the Mexican minister led him to anticipate), concludes in the following emphatic terms:

The President of the United States can not persuade himself that such a calamity as its rejection by Mexico now impends over the two countries.

Again, in a letter to Mr. La Vega, the successor to Señor La Rosa, of the 15th March, 1852, the Secretary of State says:

If, however, these hopes should prove to be unfounded, and the convention should not go into effect, this Government will feel itself compelled to take into consideration the measures which its duty to its own citizens may require it to adopt to protect their rights under a voluntary grant made by Mexico of the transit way across the isthinus. The Government of the United States can in no event be expected to abandon those rights, and ardently hopes that the Mexican Government will do justice to them in season.

And, finally, in view of the great importance of the occasion, and to avert if possible consequences of the magnitude of which to the two countries, while this question remains unsettled, none can be blind, the President of the United States addressed himself directly to the President of Mexico by a letter of the 19th of March, 1852, from which the committee quote as follows:

In addition to the motives I have urged for the speedy adjustment of this matter, I beg leave most earnestly to call the attention of Your Excellency to the probable difficulties that may grow up between the two nations should Mexico break her plighted faith in the grant to Garay. Our citizens, relying upon her good faith, have become interested in that grant; they have advanced large sums of money for the purpose of carrying out its objects; they have surveyed a route for a railroad and demonstrated the practicability of constructing it; and it is not possible that they should now be deprived of the privileges guaranteed by that grant and sustain the heavy losses that must ensue without appealing to their own Government for the enforcement of their rights. My anxious desire is to avoid the too probable consequences that must result from such an appeal. We can not, if we would, be indifferent to it. It is a duty which every government owes to its own citizens to protect their rights at home and abroad; and the consequences growing out of the disagreement of the proprietors of the Garay grant and the Government of Mexico are such as no true friend of this country or of Mexico can look upon with indifference.

The committee are fully prepared to sustain the executive department in the position assumed toward Mexico in the correspondence