^lapp il^Mp
wWiRSPlpHBfll
MlllililllM
L_ - : ^
OF
WILLIAM M. HALL,
OF NEW YORK.
in favor of a
TO THE PACIFIC,
at the great
CHICAGO CONVENTION,
3uln 7, 1817.
-also—
A REVIEW OF THE TEHUANTEPEC ROUTE,
embracing the famous garay grant, sloo con¬
tract, and other routes and plans.
1853.
Nero $}ork :
PRINTED AT THE DAY BOOK FEMALE TYPE SETTING ESTABLISHMENT.
$o. 77 ïïussqti St., 511) Stoh), TTei)l> SuiMilfJ-
OF
WILLIAM M. HALL,
OF NEW YORK.
IN FAVOR OF A
MAT I©IM MSI. 10â®
TO THE PACIFIC,
AT THE GREAT
CHICAGO CONVENTION,
3nln 7, 1847.
—ALSO——
I REVIEW DE THE TEHIMEPEC ROUIE,
EMBRACING THE FAMOUS GARAT GRANT, SLOO CON¬
TRACT, AND OTHER ROUTES AND PLANS.
1853.
Nero gork :
PRINTED AT THE (DAY BOOK FEMALE TYPE SETTING ESTABLISHMENT.
fto. 77 ïïqssm SI., 511) SfoHj, î^lr
RESOLUTIONS.
Resolved, That we believe a Railroad from the States to the Pacific to-
be practicable, and ultimately calculated to be of immense benefit to-
the United States and its citizens ; that with these convictions, we recom¬
mend an early survey of the entire line by the General Government, and
that its final construction and control be confided to sworn Commission¬
ers, selected by the State Legislatures, or elected by The People of the
various States, whose equitable distribution of the benefits and patron¬
age of the work among the citizens and laborers of the whole country,
may prevent it from becoming a political engine or a speculating mon¬
ster.
Resolved, That we further recommend that the said Railroad may com¬
mence at some point on the line of the Missouri River, and from thence
run westward to the Pacific, over territories under the jurisdiction of the
General Government ; and that one of the earliest measures in connection
with the said work be, to guard the lands along the said line of the pro¬
posed route from falling into the hands of speculators, to the future ex¬
clusion of the superior lights of the workmen on the road.
Resolved, That the said Railroad, when finished, be open to all the worldr
and that its revenues be kept down at the lowest rates adequate to the
current expenses of attendance and repairs. In this connection we heartily
recommend the National Project of George Wilkes, of New York,(em¬
bracing and enforcing the above views,) to the favorable consideration
and report of tlie. Committees of Congress, to whose preliminary examin¬
ation it now stands referred, and subsequently, to the favorable action of
the two branches of the National Legislature to whom the reports of
those committees must be made.
SPEECH.
Mr. President :—
In urging these resolutions upon the favorable atten¬
tion of this Convention, I am actuated by a sincere belief
that their affirmative decision will ensure results of more
importance and of larger advantage to the country than
will perhaps attend the decision of any other question,
that may come within the deliberations of this body.
Though comparatively anew idea, the subject of a Rail¬
road to the Pacific has already been extensively agitated
throughout this country, and indeed so wide an impression
has it already made, that I doubt if there be a gentleman
within the sound of my voice who has not given the pro¬
posal a share of his attention. As, however, the notice
conferred upon it by many, may not have extended to an
examination of its complete practicability, or to a due cal¬
culation of its great national advantages, it may be well
to devote a brief consideration to both.
The great benefits which the proposed work will confer
upon the country at large, and particularly upon that por¬
tion of it in the name of which we now assemble, are sus¬
ceptible of easy demonstration. We have but to take a
glance at the map of the world to appreciate in a moment
the remarkable advantages of our geographical position
among the nations of the universe; and to perceive at the
same time, that this great work will place it in our power
to enhance that position into one, not only of commer¬
cial pre-eminence, but of absolute maratime command.
4
Stretching perpendicularly almost from pole to pole, our
favoured continent lies midway between the two great
oceans. On the east, Africa and civilized Europe con¬
front it with their three hundred millions of inhabitants,
while its western coast looks out upon Asia and the Pol¬
ynesian groups, which together, are said to teem with six
hundred millions more. For ages it was supposed that
these two faces of the old world were confronted with
each other on the opposite shores of one vast ocean, with¬
out the intervention of any continent between, and nearly
fifty-five centuries* elapsed ere man became bold enough
in science and sufficiently reliant upon the conformation
of the earth, to plunge into the unknown abyss and to seek
to unite them by stretching the white thread of his rud¬
der upon the ocean billow in a direct westward line.
That line was at length commenced, ' however, in the fif¬
teenth century of the present era, but we have seen the
Pioneer of Destiny when half way to his aim, strand his
first hopes in the still brighter future of the discovery of
the New World. Though defeated in his attempt to
pursue a direct course to India by the interposing barrier
of this continent, Columbus still cherished the hope to
find some central avenue which would let him through
into the Pacific at an advantage over the old routes, and
when he died, the great commercial nations took up the
enterprise which he had left undone. The efforts of all,
however, resulted only in the repeated proof of their fu¬
tility, and till this day, the sought-for western route still
ends, where it was left by the great Genoese in 1492.
These repeated explorations, and the tremendous expen¬
ditures which they involved, were made nevertheless upon
the basis of rational calculations. A substantial experi¬
ence had proved that whichever nation should forestall
the world in possession of the shortest route to the riches
of the East, would win the diadem of commerce and wield
*4004 B. C. make forty centuries, and from the birth of Christ to
1492, in which year Columbus discovered America, make fifteen more.
5
the sceptre of the seas. ITence the great struggle of con¬
tending powers for the last four centuries, and hence the
proposal of the most sanguine even to cleave thecontiuent
itself to accomplish the design. Indeed, of latter years,
though Britain with commendable enterprise still des¬
patches her exploring squadrons to the North pole in the
hope of attaining the object even through the Frigid Zone,
it has generally been conceded that the direct " westward
passage" could only be accomplished by the separation
of the Isthmus in the Gulf of Mexico. While, however,
this opinion was strengthening itself upon the successive
reports of every new expedition, a mighty reformer came
upon the field. A reformer, destined not only to overthrow
all theories of physical resistance, but to grapple with the
great globe itself, to crush the mountains with a con¬
queror's step, and make the rugged wilderness more hum¬
ble to its purpose than the cringing sea. Men paused in
their ordinary speculations to wonder at the terrific pro¬
gress of this young Titan of the latter day. They saw
him pluck out the forests, tear up and fling aside the sea¬
ted hills, and with the rejoicing sons of progress in his
train, made way into the body of the continent with a step
of a bridegroom going to his chamber, or a prince to occu¬
py his throne. It was then that the grand thought burst
simultaneously upon several minds that this mighty agent
who had already made one half of the continent subject to
his power, could also pierce with equal ease the other
half, and consummate in favor of the new People for
whom he had already done so much, the brilliant hope
which had so long possessed the imagination of mankind.
The fancied advantages of the Isthmus were forgotten or
despised, and the most reluctant were ready to concede,
that if the rail car could sail upon the surface of the land
with more speed, more safety and less cost than the ship
could navigate upon the ocean, there was no further need to
seek for straits or permeating gulfs to enhance the peril
and delay, or to narrow our advantages by a tedious de¬
viation to some narrow point.
6
I have said, Mr. President, that the idea of applying
steam and the railway as the agents to complete the Asia¬
tic route which they had already half perfected across the
body of the continent, burst simultaneously upon several
minds, and I repeat the assertion with direct reference to
those who have sought to usurp the thought for other pur¬
poses than those of a legitimate pride or a justifiable am¬
bition.
The truth is, Mr. President, the man does not live who
can come upon this floor and claim the original concep¬
tion of a Railroad to the Pacific. The thought was the
natural and inevitable sequence to the progress of steam,
and though by no means general at first, was for a long
time as common to the silent speculations of the intelli¬
gent, as was 'the idea of applying the new agent to the
ocean. The fact is, sir, that previous to the years 1842
and '8 all was vague speculation on this subject. We had
neither population nor ascertained ports upon the west¬
ern ocean, and the man who could, under such circumstan¬
ces have gravely urged the Government to undertake a
Railroad across two thousand miles of terra incognita,
filled as it was thought with " Antres vast and deserts
idle," would have been treated as a visionary ; or if he
had have talked of undertaking it by himself, he would
have incured the danger of a straight jacket.
The practicability of a grade for a Railroad over the
broad and gentle surface which intervenes between the
Missouri river and the Great South Pass, and the almost
equal facility of its continuation beyond that point in an¬
gular diversions either north or south to the Pacific, ap¬
pears to be too well established to require that I should
detain the Convention by the recapitulation of evidence
upon that subject. The high authority of the surveys of
Col. Fremont,* and the abundant super-addition of testi¬
mony of several intelligent private travellers, many of
♦Fremont's report, which was the first satisfactory demonstration of
the facility of the pass and the route, is dated " Washington, March 1,
1843.
7
whom are known to members of this Convention, would
seem to render such a task at this time, a work of super¬
erogation. It may be well, nevertheless, for the purpose
of freshening our thoughts upon this important branch of
the subject, to take a brief glance at the general topogra¬
phy of the region under consideration.
From the Missouri river the travelling distance is esti¬
mated at two thousand miles. This immense stretch is
divided into two vast sections of nearly equal width ;
the one commencing at the Missouri sloping upwards to
the South Pass, and the section beyond it declining down¬
wards to the sea. The highest point in the line is at the
Pass in the centre which is 5,490 feet above the levelof
the starting point upon the Missouri, leaving but an aver¬
age of six feet to the mile to overcome. The greater part
of this ascent varies but from 2 1-2 to 9 feet to the mile ;
two hundred miles has but an ascent of from 16 to 17 feet
to the mile, while but a single piece of eighteen miles,
has a rise of 42 feet to the mile. It will be seen, there¬
fore, that the whole of this first vast section sweeps so
gradually to the Pass, that the traveller upon its surface
cannot distinguish between the true and apparent level,
and the culmination at the Pass itself is so imperceptible
from the gradual flow and intermixture of the plain, that
even the practised eye of an engineer could not detect it
without the assistance of his instruments. The slope west¬
ward from the dividing point, descends in much the same
gradation to the western ocean, but, though it is more ca¬
pricious in its variations, its feasibility for a railway grade
is equally testified to, and indeed has been familiarly de¬
monstrated by the fact that it is regularly travelled by the
emigrants with their loaded teams. To say that such a
route as this is not feasible for a railway grade, is to deny
the simplest capacities of science, and to assume that be¬
cause the road is unparelleled in continuous extent, it is
too gigantic for human enterprise, is to insult the spirit of
the age.
This, sir, is the road to India 1 This is the great " west-
8
ern passage" for which contending nations have straggled
for centuries, and I am the less inclined to marvel while
gazing with awe upon the mighty revolutions it foresha¬
dows, that there have been those who have confounded
its stupendous promise with the simplicity of its charac¬
ter, and condemned it as too grand for hope.
This, sir, is the road to India Î for it will be perceived
by the time it has stretched to its Pacific outlet, frater¬
nal lines from every branch of the Atlantic slope will
converge together to give it an iron grasp of welcome on
the banks of the Missouri, which, branches starting thence
on equal terms to nearly equal distances, both east and
south, will whistle their portions of its Asiatic freight in
radiating lines to every part of our vast semicircular bor¬
der—from Eastport to the Crescent City. Thus, then,
do we settle the great problem which has so long puzzled
the subtlest genius and most daring energies of man.—
Starting from the ports of China we sail across the placid
western ocean in twenty days. Embarking next upon the
bosom of the land we double our speed and glide across
the vast width of the continent in six days more, and with
ten days left to fill the race, roll out our Indian treasures
on the shores of Europe. There will be no more crossings
of the Equator ; no more tedious and perilous weatherings
of the Capes. The whole human family, thirty-nine for¬
tieths of whom lie north of the Equator will persue a direct
intercourse with each other around this civilizing belt,
and the navies of the world, recalled with commerce to
the common line will have little else to do than drowsily
look on at the happy bustle which condemns them to
worthlessness and to decay. On the Atlantic, the smal¬
lest powers, protected by the general equality, will enter
into generous competition with the greatest, while on the
Pacific, we shall reign alone and be the common carrier
for all. From our new cities on the western coast will
launch the ships with which no nation will be able to
compete by sending riva bottoms round the Capes, while
9
in the centre of a row of bustling ports will sit one giant
mart — the mistress of the West — the modern Tyre 1
Internally, the benefits of the road will be commensurate
with its exterior and national advantages. The dull si¬
lence of the wilderness will give place to the sharp buzz
of population ; towns and thrifty villages will spring up
all along its line, and the adjacent wastes, challenged to
production by the increased demand, will wave with
wheat and corn. The West will then be relieved from
its dépendance on the Atlantic slope. Its grains will go
direct to immense markets of its own, while its pork, its
lard and butter, unable heretofore to make two crosssings
of the torrid zone, will proceed without fear of harm to
their destination in the temperate latitudes, without ap¬
proaching the equator.
It may seem strange, Mr. President, that with this bril¬
liant destiny before us—a destiny which extends its promise
alike to every portion of the Republic, there should be
those who agitate the almost obsolete idea of the Isthmus
route. I can hardly bring myself to believe, however,
that a project so unwise and so at variance with our true
interests, can be seriously entertained, but if it be, I think
I may venture to advise its ostensible proposers to aban¬
don it at once. The close calculating, straight ahead
spirit of our people will never be content to circumnavigate
half the continent in a perilous route, when they may go
safely straight across it ; nor will they consent to the ex¬
penditure of some fifty millions in a foreign country and
for foreign benefit, when the same amount may be spent
among our own people, and secure an avenue within our
own control. I have said fifty millions, Mr. President
for it will be seen that to the small good looking estimate
for the Mexican canal, must be added the advantages we
shall be obliged to resign in the treaty with Mexico, to
secure from a nation so jealous in regard to territory a
right of way which they will be so reluctant to concede.
"But if we should conquer and possess the route ?" some
gentleman may say in reply. "Well, Mr. President, if we
10
should conquer on until we come to South America, I would
still lock up the entire line of coast from permeation, and
thus ensure the course of trade to the direct and consistent
parallel of 42° ? Why need we deviate an inch to follow the
ocean, when the land will serve ns better ? Why wish
to pitch and toss upon the billows, at the rate of ten miles
the hour, when we can more safely sail at the rate of thir¬
ty and forty and fifty upon the land ? Why put to sea in
the Atlantic, to strain almost side by side with England,
for the same point, and there wait with her and with the
whole crowd of commercial customers, our turn to be admit¬
ted through ?
It has been said however, that the West will not be forced
to the Atlantic coast, but will send itsT commerce down
the Mississippi and push it through into the Pacific by the
Isthmus route. Well, so it may, but if it does, it must
send it through sweltering heats and torrid latitudes, and
who shall say that the returns of Asiatic stores will get back
and ascend the Mississippi with the same facility? Who shall
say that the West will then carry for any but herself? The
Northern rail road will roll the golden stream of commerce
by their doors, but the Mexican canal will confer this advan¬
tage upon others, and while it does so, will not only deprive
the West of its promise of the carrying trade, but open a
passage in the continent to slip through foreign bottoms
to compete with western ships upon the western ocean.*
Why sir, this is the rival passage ; insignificant it is
true, if the rail road be built, but calculated to postpone
the rail road and its advantages indefinitely, and to
oblige the United States to maintain in common with the
other power, tremendous fl eets upon the pestilent coasts
*It may be said that they will not be able to compete with us in this
way, but it must be borne in mind, that when this road is opened, the
shortness of the canal passage around the world will increase the carry¬
ing capacity of the commercial marine, tribly beyond its wants. What
before took from four or five months to accomplish, will then require but
thirty-six days : consequently one-third the number of ships can do it.
Europe would therefore send her idle bottoms into the Pacific, at the
mere cost of navigating them.
11
of the Gulf to preserve the integrity of the Grand Canal.
Reflect sir, for a moment, and tell me if in time of war we
could always hope to remain masters of this passage, or at
any rate if we could remain so without cost. This, sir,
alone would be enough for me to reject the Isthmus pro¬
ject. We have had enough of war. The world is sick of
armies and navies ;—their pompous shows, their frippe¬
ries of rank, their despotic inequalities—and the masses
of all nations wish to grasp each other by the hand. It
is the interest of a Republic, as well as its duty, to aid
these aims and foster this fraternal spirit. The rail road
will do the whole. It will promote an intercourse that
will be its own protection and the possession of the ponder¬
ous gates of ^commerce which we shall hold on either ocean,
will enable us by the mere lifting of our finger, to command
peace throughout the world !-—Peace, or the exclusion of
the brawler from the highway of the nations !
This, sir, I conceive to be our proper destiny, and these
are a few of the reasons why I claim the route which our
government can control and which will ensure to the na¬
tion the largest portion of advantage.
With these remarks I shall leave this portion of the
subject, but it is not proper that I should conclude it with¬
out stating my entire disbelief of the rumor that the
strange project of a Mexican canal can be seriously con¬
templated by our Government. If such a rumor emanates
from the Government at all, I am rather inclined to regard
it as a cabinet feeler, the whole object of which is to test the
public mind as to how far it will answer to " enlarge the
boundaries of freedom" in a southerly direction. Indeed,,|I
am disposed to ascribe it to anything, rather than believe
that an Administration which is so extremely sensitive
on the Constitutionality of National Improvement, should
risk burning its fingers by dipping its hands into the treas¬
ury of the State, to build a foreign improvement, by for¬
eign hands, in a foreign country, for foreign benefit.
Having satisfactorily ascertained, Mr. President, the
perfect practicability of a direct and speedy commercial
12
highway from ocean to ocean across the broad longitudes
of this continent, and having also satisfied ourselves of the
advantages it will confer upon the country, it now but
remains for us to ascertain in what manner it may best
be done.
There are two methods which have been proposed for the
construction and control of this work. One of these pro¬
positions is that the road be constructed and owned by
private persons for private benefit, and the other that it be
built and held by the Government for the benefit of the
whole people. The national proposition, which I have ta¬
ken as the basis of these resolutions, is the proposal of
George Wilkes, of New York city, and the proposition
that it shall be chartered into a private monopoly on the
one hand and made the subject of a monster contract on
the other, are the respective schemes of Dr. Hartwell Car¬
ver, of Western New York, and Mr. Asa Whitney, of
Connecticut. I mention them in this connection that we
may examine them in order.
Mr. Carver claims to be the very first man who ever
dreamed of a Rail Road across the Rocky Mountains, and
under this impression has suddenly woke up and hurried
on the heels of Mr. Wilkes and Mr. Whitney, to demand
that the Government should hold its hands from touching
the work in its own behalf, and to insist that the rewards
and privileges, which Mr. Whitney angles for, belong to
him, the petitioner, by a prior right of thought. Actuated
by this spirit, he asks Congress to give him " and his as¬
sociates," an exclusive and perpetual charter to run a Rail
Road from Lake Michigan to the South Pass, with branch¬
es from that point, through California to San Francisco
and through Oregon to the mouth of the Columbia. He
asks also a like exclusive charter for an Electric Tele¬
graph over the same route. He further asks Congress to
give him, in fee simple, a belt of land for the tract over
3,000 miles long; and as an incident to this portion of his
demand, he requires stone from the public quarries, tim¬
ber from the public forests, and iron and lead and other
13
metals from the public mines. He proposes to avail him¬
self of the public mines to the greatest extent, by estab¬
lishing monster foundries at various portions of the route,
for the manufacture of the rail and other metal works re¬
quired for the road, and of course for the supply of the
populations, that would grow up along side and beyond it.
These are the moderate requirements of Mr. Carver's pe¬
tition, so far as the details of the road are concerned,
having finished which, the Doctor winds up by asking the
Government to sell to him " and his associates " eight
millions of acres of the public lands at the Government
price of $1,25 the acre. These 8,000,000 of acres are to
be selected by the Doctor at pleasure, out of any public
lands within thirty miles of the line, but instead of paying
money for them, like any other purchaser, he offers only
"scrip" or stock of the road as it becomes finished, re¬
marking with a really amusing complacency, that this
scrip issued by himself "and his associates," will be "real¬
ly better than cash down, as no one can tell how much
above par it may be when the road shall have been in
operation a few years." Unfortunately for Mr Carver,
there happens to be a complete absence in the Constitu¬
tion of the United States of any provision authorizing the
Government to become a party to a stock jobbing specu¬
lation by taking fluctuating scrip in payment for The Peo¬
ple's property. I will not stop at present, Mr. President,
to examine all the odious features of Mr. Carver's scheme,
as they will come sufficiently in view under the examina¬
tion of the congenial project of Mr. Whitney, but I may
as well add that he denounces both Whitney's and the
Government plan, and with much spirit declares, that if
Congress refuses to grant him his requests he will appeal
to The People—" the common people," as he calls them—
to come out and sustain him.
Mr. Whitney proposes to build the road on a contract,
the provisions of which will be found to be still more ex¬
orbitant than those of Mr. Carver's charter. He is not
satisfied with asking land enough for the track, but asks
14
the Government to grant him a strip of the public domain,
stretching from the lower point of Lake Michigan in Illi¬
nois, for 2,400 miles to the Pacific Ocean, and for such de¬
ficiencies as may exist in this strip, by reason of lands al¬
ready sold out of it, he asks an equivalent in an equal por¬
tion of unsold lands in other places ; so that he shall be
sure to have at any rate, the full amount of 92,160,000
acres. On this capital of the public domain, with the for¬
ests and the quarries and the mines thrown in, he agrees
to go to work and build a road, selling the land to pro¬
duce the means, but retaining for himself and his heirs all
that remains unsold after its completion. He offers then,
in relation to the subsequent management and control of
the work, if Government will allow him to charge 1-2
per cent, per ton a mile for freight for long distances ;
(and his own price for short ones) 20 cents the bushel for
Indian corn ; $1,25 cents the barrel for flour, and half the
usual rail road'price for passage, [during the first twenty
years after its completion ; to carry in consideration there-
or, the public mails, troops and munitions of war, free of
charge ; and also to allow Congress, after that date, to
make an alteration in the tolls.
Strange(to say, these enormous and unparalleled de¬
mands were favourably reported on by a committee of the
Senate, who on the 31st of July, 1846, brought in a Bill
of six sections of the most remarkable character, each of
which may be said to evince the influences under which it
was gotten up, by the fact that it helps to give Mr. Whit¬
ney much more than lie asks. It is true the second sec¬
tion pretends to provide that the work shall belong to the
Government as fast as its done, but the mockery of the
phrase is shown by a ''provided always," which winds it
up, and which conditions, that if Mr. Whitney "and his
associates" shall at any time before or after the comple¬
tion of the road, pay, or secure to be paid, sixteen cents
the acre, for the granted land, then and in that case, "the
lands, the road, the machinery and. all, shall belong to him
and his associates, and their successors forever." The
15
plain English of this maneuvre seems to be, that the title
to the vast domain was thought better in the way of pur¬
chase than as a naked grant, and in (this view there could
be but little objection for a wealthy company to pay, or
agree to pay, at their own convenience, sixteen cents the
acre, for what would cost all? other purchasers from five
dollars to five hundred dollars the acre—cash down. The
same section accepts of the proposal to carry the Govern¬
ment stores free of freight, but in its magnanimity, it ex¬
acts no conditions from Mr. Whitney in relation to
his other customers, but allows him " and his associates"
to tax the internal trade and foreign commerce of the na¬
tion, according to their conscience and their pleasure.
The third section of the Bill empowers him to enter into
contracts with States and companies to help him build the
road. This is an important provision, for it enables him
to supply himself with convict labor from the States and
to contract with land companies to furnish him with troops
of bonded serfs. The fourth section is devoted to gloss¬
ing over the grant, and restricts him from receiving the
immense windfall except in installments of five miles (by
sixty) at a time, for every ten miles of rail laid down, the
proceeds of the remaining fives along the railroad, being
held as a fund, subject to his order, when required by him
to build the road along the unproductive portion of the
route beyond the Missouri. This imposing condition only
applies to the rich lands this side of the Misouri, however,
and so far from being a restriction, is only a guarantee in
his favor, for it merely obliges him to be prudent in throw¬
ing his good lands into market, and after leading him in
a shower of gold to the banks of the Missouri, enables
him to draw and appropriate all the glittering savings
which the friendly restriction had garnered against waste
or misappropriation. He may then either put these mil¬
lions in his pocket and leave the work for government to
finish, or if he be a man of really comprehensive ambition
he can go on and lay out the bulk of his previous gains to
secure a still more monstrous harvest in the future. The
16
fifth section like the second, lets Mr. Whitney off moro
easily than he asks in his petition, for instead of the Com¬
missioners to assist him in selling the lands and signing
the titles, which he there so plausibly expresses himself
willing to submit to, it only provides for one Commission¬
er, whose salary is to be paid by Mr. Whitney himself,
whose indefinite duty it is to see that every thing goes right,
and to report to Congress once a session—the existence
of his office, be it borne in mind, depending entirely upon
his reporting that every thing does go right. The sixth sec¬
tion performs the last service for Mr. Whitney " and his
associates," by removing the objection which mechanics
and laborers might have to enter his employ, by the pro¬
vision that if he fail in his enterprise and leave them in
the wilderness without employ, they shall be entitled to
pre-emption rights to the land, and be subject to pay the
United States only the minimum price for the acres.
These are the pre-emption rights for his laborers of which
Mr. Whitney has made such an ostentatious display, but
which as they only accrue in case of his breach of contract,
and their discharge, can hardly be considered as tempting
to the laborer, or magnanimous on the part of Mr. Whit¬
ney. The Bill then winds up without requiring any guar¬
antees from Mr. Whitney "and his associates," or estab¬
lishing any penalties against them for the non-perfor¬
mance of their contract.
These, Mr. President, are the true features of the mon¬
ster speculating project which Mr. Whitney has for the
last year been misrepresenting to the country^as a plan
in which he asks for nothing for himself. In reply to this,
sir, I would merely remark, that if to receive a sweep of
territory larger than the domain of eight sovereign States,
with a rail road in its centre and an ocean front of sixty
miles, comprising Oregon City, the mouth of the Colum¬
bia, and five or six smaller harbors ; if to possess the con¬
tracting powers and patronage of an Emperor, and to hold
the commerce of the world at the mercy of his tariff or
17
tolls, be in Mr. Whitney's estimation nothing, I think it
highly necessary that Congress, and the People, and this
Convention, if he should appear before it, should ascertain
before they confer any favor or power upon him what may
be his idea, of the mean circumference of something.
I will not denounce this scheme as infamous, Mr. Pres¬
ident, but I do denounce it as exorbitant, as sordid and
as dangerous in the extreme ; more monstrous as a mon¬
opoly, if carried out than even the British East India Com¬
pany, and liable to place our foreign commerce, our do¬
mestic trade and our common interests at the mercy of the
secret legislation and the secret political influences of a
set of foreign stockholders, whose votes and whose views
would be very likely to be predominant in a private cor¬
poration of this character. I denounce it as false in its
pretentions, if not fraudulent in its motives, and instead
of being calculated to enlarge the capacities of the West,
as directly tending to blast its fields with withering land
speculations, and to inflame the mind of the whole nation
with a delirium for stock, equal to the fatal intoxication
of the South Sea bubble or the famous Mississippi scheme,
which in the beginning of the last century prostrated
France and England in finanical ruin.
It is 110 argument for me, sir, nor for this Convention,
that these individuals and their plans have been treated in
some quarters with public favor, or that they have made
great personal efforts to be successful in their aims. Their
anxieties and their endeavors must rank with those which
men institute to benefit themselves, and the expression of
bodies who have not hesitated to declare them both origin¬
al projectors, without enquiry into the matter at all, only
go to show that men who could be so easily deceived as to
points of fact, are still more likely to have been misled
upon matters of judgment. These results of management
and these gimcracks of expression, do not weigh with me
sir. I stand" here a free man, on the basis of my own mind,
and I am determined not to have my individual opinions
forestalled or trodden out, b£ the moccasin footed ap
18
proaches of any insidious and deceptive speculations what¬
ever.
Happily, sir, in every unjust exercise of the human
thought, there live inherent weaknesses which if seen in
time are fatal to the calculations of the subtlest schemers.
Such in this case are the undue aims of the monster pri¬
vate projects, and such particularly is the fatal obstacle
which the Indian title offers to them both. The land
asked for by Mr. Carver and by Mr. Whitney does not
belong to the United states in fee, though it claims a par¬
tial jurisdiction over it. It is the property of independent
nations known as the Indian tribes, whose right to the soil
is perfect, and who cannot be dispossessed except by trea¬
ty or by conquest. Now, though the U. S. might feel dis¬
posed to grant to Mr. Whitney or Mr. Carver such public
lands as are its own, it cannot undertake to give them
what belongs to its neighbors. It must first possess before
it can dispose, and a very simple knowledge of the consti¬
tutional powers of the government will inform us, that it
has no right to pledge the exercise of the sovereign attri¬
butes known as the war and treaty making powers for a pri¬
vate object and as the incident of a private charter. The
Indian who is driven from his hunting ground must be lo¬
cated upon other and equally spacious fields of chase. The
Great Father must not drive his red children from the
graves of their ancesters and the forests which have-sup¬
plied them and their little ones with food, without a com¬
pensation. If he takes from them 92,000,000 of acres for
the rail road he must give them the same amount of terri¬
tory somewhere else. He must likewise give them a lib¬
eral consideration to consent to the exchange ; he must de¬
fray all the expenses arising out of the transmigration and
he must send his captains and his men of war to supervise
the exodus. I am conjuring no imaginary obstacles, Mr.
President, neither am I drawing upon any vague and illu¬
sory ideas of philanthropy. I am pointing to'a condition
of things which the United States have always recognised
as just, and as necessary upton the assumption for actual
19
use of Indian territory, and I again insist that the Govern¬
ment has no right to drive out these nations to consumate
a charter to a corporation, or to enter into an immense and
expensive diplomatic operations with the tribes, to make
good a special grant to an individual for individual pur¬
poses.
The Government may, however, enter into these arrange¬
ments in its own behalf ; but though this may not be con¬
sidered in itself a sufficient reason that it should do so, it
places it superior to objections which will prove insur¬
mountable to all parties else, at least for a long period
of years.
The idea that Goverment has not the constitutional capa¬
city to authorize and to build this road over its own ter¬
ritories, is a fallacy which has perhaps but few sustainers
except among those interested in the private schemes; but
the hostile quibble is shot with very little force, by those,
who in another breath and to conceal the heinousness of
their own designs, ostentatiously stipulate that "the road,
the machinery and all" shall belong to the Government
in case they fail to perform some of their gingerbread
conditions. Now, Mr. President, if the Government
can seize and possess the road, and finish and control it,
in case it is first plundered and deceived, it surely can
do so without incurring the danger of such mishaps; and
I think it will appear equally plain that if the Govern¬
ment has the capacity to furnish to others all the means
for its construction it is perfectly capable of retaining
and disbursing them itself in behalf of the nation.
It is hardly necessary, Mr. President, that I should
undertake to vindicate to this Convention the power of
Congress to appropriate funds and to undertake a nation¬
al improvement of this kind, but as constitutional incapa¬
city has been charged, it may be well to show that the
enterprise under consideration stands aloof from the scope
of any and all of the objections which have been conjured
up from time to time against a liberal exercise of the in¬
herent powers of the government, in the way of expendi-
20
turc for national objects. It is not liable to the opposition
preferred against improvements within the boundaries
and between the several States, for it lies beyond the
States on the vast prairie ocean, and in the language of
our resolutions, only runs across the territories under the
sole jurisdiction of the General Government. Neither can
it be objected that it is sectional in its character, as its
advantages would plainly be general and common to the
whole nation.
It has but two exact precedents in the wTay of expendi¬
ture that I now bear in mind, and these are the purchase of
Louisiana from France, and Florida from Spain. These
countries were paid for out of the national treasury under
the clauses of the Constitution which empower Congress
"to make regulations of commerce" and to "adopt measures
for the general welfare and provide for the common de¬
fence." Neither were within the States, but their acquisi¬
tion was plainly so valuable to all alike, that the nation
willingly consented to the liberal construction of the clau¬
ses which sanctioned their purchase from the common fund.
The purchase of Louisiana particularly, gave the greatest
satisfaction, because its acquisition was necessary to secure
a national outlet for the productions of the great valley
of the Mississippi, and in this view it is the exact parallel
to the National Rail Road to the Pacific. The rule that
authorized the expenditure in the first case, doubly justi¬
fies a similar outlay in the present one, for while the acqui¬
sition of Louisiana only secured an avenue to a single sec¬
tion of our broad dominions, the National Rail Road will
open a new highway to the whole country and the whole
world. It comes, therefore, more completely within the
commerce clause than even Louisiana, and as a military
road for the transportation of troops to Oregon and Cali¬
fornia, or munitions for the arsenals and fleets that must
guard the integrity of our interests in the western ocean,,
it presents stronger claims upon the provision for "the
general welfare and common defence," than both Louisiana
nd Florida together. But in addition to these general
21
constitutional authorizations, Mr. President, we find a spe
cial warrant for the work, in the clause which empowers
Congress "to establish post-offices and post-roads." Under
this provision there has recently been authorized by the
General Government a monthly mail by steamers through
the Gulf, and overland, across the Isthmus to Oregon and
California ; and who shall say that a government which
has a right to lay out routes upon the ocean under the
post-road clause, has not an equal right to build a rail
road across the land, for the better accomplishment of the
same purposes.
Thus fall the hyporcritical objections to the constitution¬
ality of the national plan ; and the further quibble that
Government has no right to engage in such a scheme of
revenue or speculation, also finds the ground, by the con¬
dition of our third resolution which requires that its rev¬
enues be kept down to the measure of its current expenses,
in the way of attendance and repairs.
The truth is, Mr. President, the national plan com¬
prehended in these resolutions is the only constitutional,
as it is the only safe and feasible project of the three that
are now before Congress, and the only thing which takes
the color of an objection to it at all, is the expense it may
occasion to the Government at the present time. This
objection, however, will be found upon examination to be
much less formidable than might be supposed, and when
compared with Mr. Whitney's enormous demands upon
the National fund, will appear absolutely trifling. Ac¬
cording to the estimate of Colonel Abert, the ac¬
curate head of the Topographical Bureau at Wash¬
ington, this road may be built for $20,000 per mile,
or twenty per cent, less than the average cost of the other
railroads of the country, in consequence of its superior fa¬
cility of grade. This estimate, applied to the 1950 miles
lying west of the Missouri, makes an aggregate of $38,-
600,000 for the whole work ; whereas, if Mr. Whitney
build it on his proposed terms it will cost us in the first
place 92,000,000 acres for him, as much more in com-
22
pensation to the Indians whom he dispossesses, and heavy
outlays in cash down to induce the bargain, and to secure
the peaceable transmigration of the tribes. I leave the
differance of these two vastly different projects to the in¬
telligence of this Convention ; and I also leave it to their
intelligence to say, whether a sum, which in the language
of the plan of Mr. Wilkes, " is but little more than half
larger than that cheerfully incurred by the single city of
New York for her Croton aqueduct, shall be an obstacle
to a work, which will render all the nations of the earth
our commercial tributaries."
Though $38,600,000, Mr. President, is the deliberate
estimate of an official enquirer of known scientific secura-
cy—made with direct reference to the whole character of
the route, and in view of all the usual contingencies, we
will place the cost at the liberal maximum of $50,000,000.
This sum, expended at the rate of ten millions per year
for five years, will be the entire cost of the work, and the
period named will, probably, be the entire time required
to complete it. When, therefore, we compare these cal¬
culations with their consequent results, and take into
consideration at the same time that the highest sum named
is less than has been cheerfully incurred by the country
for a single year of war, I think the opposition on the
ground of expense may be withdrawn.
The plan upon which it is proposed by Mr. Wilkes
that the Government shall construct and control this road,
has been ably developed by him in a printed memorial of
considerable length, but as its points and characteristics
are briefly and comprehensively given in a letter addressed
by him to the chairman of a committee of Congress to
which numerous petitions in itsjavor from various parts
of the country were referred, I will save the time of the
Convention by introducing a copy of that paper. I do
this the more willingly as it developes the honorable
ground upon which its projector stands, and I beg the
Convention to mark the contrast between its pretentions
23
and its sentiments, and the claims and the aims of Mr.
Carver and Mr. Whitney :
New York, 9tu January, 1847.
"Dear sir,—In taking the liberty of addressing you on the subject of
my Memorial for a National Rail Road to the Pacific, now before the
committee of which you are chairman, I trust I may be excused by the
engrossing interest which the subject holds in my attention. I have
been deprived of this privilege for some time by a severe illness, but I
now take the first opportunity to add a few words upon one or two points
before any final action be taken in the premises.
"It may not be improper at the out set, for me to say to a committee
whose attention I am about to request, that I do not appear before them
as the advocate of any personal interest, or as the claimant of any special
credit. I merely claim, as may perhaps many others, the seperate incep¬
tion of the idea of a Rail Road to the Pacific, indépendant of any other
mind, and to have dwelt upon it with enthusiasm as a means of national
greatness, long before Mr. Whitney broached his private scheme. Be¬
yond that I claim nothing, save the possession of a sincere desire to see
the grand design so carried out as may result most largely to the happi¬
ness of our own country, and to that of the whole world. It is with
these views that I have assidously devoted myself to the advocacy of
the National Project for the last three years, and it is to these motives
that I must trust for an apology for this intrusion upon your committee.
"The main points of my proposal you will find to be 1st That the
road be built and owned by the Government. 2d. That its construction
and control be confided to sworn Commissioners, to be appointed by the
State Legislatures or elected by The People of the various States. 3d.
That it start from the line of the Missouri River, in the vicinity of the
parallel which strikes the South Pass, and thence run westwardly over
territories under the jurisdiction of the General Government. 4th.
That its revenues be confined strictly to the measure of its expenses of
attendance and repairs, and that it be open to foreigners and their mer¬
chandize on the same terms as to our own citizens,—the latter result to
be secured by regulations of debenture, returning all customs charges on
such merchandize on its re-shipment. Lastly, that it be built out of the
Public Treasury without any allotment of the Public Lands for sale for
that purpose. This latter consideration I regard as of the utmost impor¬
tance, and is one of those on which I desired to express myself more ful¬
ly than I had space to do towards the close of my memorial.
"I believe that any measure that would subject the Public Lands to
the reach and appropiation of speculators, or indeed that would dispose
of them to the hands of any but actual settlers, would be highly unpopu¬
lar, and would excite a wide and determined opposition throughout the
country. I think therefore that the most just as well as the most satis¬
factory disposal of these lands, would be to insert a provision in the Bill
recommending the road, (if such should be the decision of the commit¬
tee) securing to each laborer or mechanic who shall have worked upon
it for one year, one hundred acres of land, along or contiguous to the line.
This regulation, instead of making a few rich men, richer, would make
prosperous landholders of the most deserving poor, and while it conferred
a priceless population on the West, would perform the highest achieve¬
ment of Republican philanthropy, by elevating Labor to its true impor¬
tance in the social scale."
These, Mr. President, are the views which I have intro¬
duced into these resolutions, and this is the sublime project,
24
which whenever developed in contrast with the private
schemes, has won the selection of all unbiassed ininds. I
have, therefore, but little doubt that every member within
this arena will make a like recognition of its generous supe¬
riority, and decide in favor of a plan capable of conferring
the benefits of the "westward passage" upon the country,
without depressing labor or plundering the people of the
soil ; and capable of guaranteeing the civil and financial
integrity of the work, by national guardians elected from
every State, whose various politics and equal claims to
local favor, will secure the work from an invidioas distri¬
bution of its patronage, or from concentrated political ac¬
tion.
In soliciting for this question, the just expression of this
Convention, I desire them to bear in mind that upon the
weight of their decision may depend the choice of Congress,
first between two lines of policy • one of which will confer
the commerce of the world upon its ptroper latitude, and
confide the mastery of the oceans and the new avenue to our
sole control, and the other of which, will divert it to a re¬
mote and torrid region for the advantage and the rivalry
of others, and the conversion of the surface of the Gulf,
into the common battle field of all the navies of the earth.
I desire them to bear also in mind that upon their expres¬
sion likewise may depend the selection of two plans,one of
which will fall upon the West and her rising hopes like a
withering curse ; blighting her whole domain with ruinous
land speculations ; enmeshing and enslaving every acre
with financial ties, cursing her social state with mon¬
ster monopolies and degraded labor, and rendering the
prosperity and personal independence of every man whose
foot shall fall west of the Great Lakes, at the mercy of a
Company, the enormous wealth and gigantic influence of
which will stand without a precedent in the history of the
world.
The national plan, on the other hand, will guarantee the
soil from sudden and wholesale purchase, and preserve it
for the homestead of the settler ; it will recognize its kon-
25
orable workers as men and not as serfs, and it will pay
them in honest coin and in unshackled land instead of round
jackets, shoes, and " orders " upon huge corporation
groceries. It will not establish monopolizing foundries
to crush out the hopes of individual enterprise, nor will it
condemn the land to waste through the continual transfers
of infesting land companies, but it will draw in upon the
rich and yielding soil, thousands and tens of thousands of
enterprising emigrants whose unfettered competitions will
challenge its generous bosom to production, make solitude
vocal with the songs of contented labor, and confer upon
the rising West a class of free, intelligent and substantial
husbandmen who will be the chief pride and the chief depen¬
dence of the country.
These, Mr. President, are the sublime and patriotic views
in favor of which I now ask this Convention to decide ; and
the opposite and narrow aims to be found in the private
schemes, are the blighting evils of which I conjure them in
the name of their country, in the name of the West, and by
all things sacred to a patriot and a lover of his kind, to be¬
ware !
THE WORK NATIONALLY CONSIDERED.
It will be perceived that over six years have elapsed
since the foregoing resolutions and arguments were pre¬
sented to the Public ; and it will likewise be perceived,
that while the private plans of Whitney, Carver, Plumbe,
and others have gradually been silenced by their force,
the lapse of time and change of circumstance, so potent
upon every thing else in the United States, have requir¬
ed no modification of the National system which those re¬
solutions and that argument sustained.
Nevertheless, though the defeat of the early adven¬
turers upon the Government was so signal and disas¬
trous, parties are still found, from time to time uni¬
ting to bring forward some of the old projects under,
new shapes ; acting really, as if they were the J
26
of the slain, and as though they flattered themselves that
the guardians of the National Plan had expended all their
vigor upon the hydras and dragons of the prologue. As
one of these guardians, the writer enlisted for the whole
campaign, and now that new efforts aud stratagems are
being made to capture a large portion of the public do¬
main he finds an excuse for reviving his argument against
them.
But this new stir and increasing energy among the spec¬
ulators should not be a matter of surprise at present. The
plethoric conditon of the Treasury enlivens the cupidity
of that benevolent class known as the "large operators" of
the country, the improving aspect of the forests, plains and
mines and quarries of the West, is scarcely less suggestive
to their ingenuity ; while the prospect of forming a co-part¬
nership with the United States, with all the capital and
character furnished free, and no danger of prosecution for
perversion of the proceeds, is a temptation which excuses
a loose mind in the most audacious longings. Like the
goods exposed at a shop door, it breeds an itching in all
uneasy fingers, and though we arrest them as a matter of
duty when the attempt to carry it off, we are disposed to
take their organization into consideration and regard it as
a venial error.
It is not necessary I should refer to all these new pro¬
jects in detail ; they all partake of the earlier schemes and
are brought prominently to view in the cotemporaneous
essay. The entire batch will be met, it is hoped, not only
in these pages but at the doors of the approaching Congress
by every man who has examined the subject and who has
the true interests of his country at heart.
Great interest seems to be felt in the probable course of
the administration on this subject, but there is little confi¬
dence that President Pierce will give his approval of any
plan or class of plans ; and indeed there are but few who
believe that his adhesion could give either of them any
weight. The subject is properly considered as too broad
for his comprehension, and while he is staggering for an
27
opinion and a course, the sober judgment of the country
will have decided upon the undertaking, and have deter¬
mined, through the hands of Congress, its proper shape.
It may not be out of place at this portion of our subject
to examine, rather more at large than we have already
done, the value of a rail road to the Pacific in a high poli¬
tical point of view, by the estimation of its importance by
foreign powers, and by a glance at some of the prominent
results that will flow from it, to our benefit as a nation.
The commerce of the East, in every age, has been the
source of the opulence and power of every nation which
has engrossed it. By a silent and almost imperceptible
operation, India has been through centuries the secret
but active cause of the advancement of mankind, and while
lying apparently inert in her voluptuous clime,has chang¬
ed the maratime ballances of Europe with the visits of
every new nation that has sought the riches of her shores.
Her trade imparted the first great impulse to drowsy
and timid navigation, it revealed in the direction to its
coasts region after region before unknown ; it found for the
guidance of the mariner new planets in the sky, and its
restless spirit has not even been content to make more than
a temporary pause in the discovery of another world.* Like
the Genii of the fable, it still offers the casket and the
sceptre to those unintimidated by the terrors which sur¬
round it, are bold enough to adventure to its embrace.
In turn Phoenicia, Israel,! Carthage, Greece, Borne,
(through her vanquished tributaries) Venice, Pisa, Genoa,
Portugal, Holland, and lastly England have won and worn
the ocean diadem—our destiny now offers it to us !
To shorten by a western passage the route to the Indies,
* The object of Columbus was not, as has been erroneously supposed,
the discovery of a new continent, but a shorter route to Cathay.
f Envying the success of the Phoenicians, David and Solomon, after
having seized upon Idumea as a preparative, sent their fleets through
the Arabian Gulf to Tarskish, Ophir, and other ports in Africa and In¬
dia, and by this means diffused throughout the land of Israel " the
wealth of Ormus and Ind." It is to this cause, doubtless, that the lat¬
ter monarch specially owes his vast reputation for sagacity, as well as
splendor of his reign.
28
has long occupied the attention, and aroused the exertions
of all maratime nations. The first and remarkable effort
to effect it, we have said, was made in the latter part of
the fifteenth century by Columbus, which resulted in the
discovery of another world, and the search has been main¬
tained with but little intermission by the intervening ages
ever since. Exploring expeditions to both the Atlantic
and Pacific coasts have pryed in every sinuosity of shore,
from latitude 50° south to the borders of the Frigid zone,
and in the defeat of their exertions, projects have been
formed, even to pierce the continent to accomplish the
design.
As early as the seventeenth century, a company was
formed in Scotland to improve the advantages offered by
the Isthmus of Darien and Panama, for trade in the Pacific,
(projected by Wm. Patterson) but the project being dis¬
countenanced by England, at the violent remonstrance of
her powerful East India Company, the subscriptions were
withdrawn, and the enterprize temporarily dropped.
It was revived soon after by its indefatigable projector,
who having raised £700,000 and 1,200 men, set sail in
five ships to found a colony ; but being denounced by the
government and attacked by a Spanish force, while its re¬
duced numbers were suffering under disease and famine,
they sunk under their accumulated misfortunes and aban¬
doned the enterprise in despair.
From that time to this, the project of dividing the Isth¬
mus has been a favourite theme with European philosophers
and statesmen, but the subject appears never to have ad¬
vanced beyond the bounds of mere speculation until later
years. In 1814 it was revived by Spain, who this time
seemed to be seriously in earnest in the matter.
By a vote of her Cortes, dated Apl. 30th in the above
year, the immediate commencement of the work was de¬
creed, but the foreign and domestic troubles into which she
was plunged, at this period, rendered her incapable of car
rying out the grand design.
The project found its next active and practical suppor-
29
ter iu Bolivar, who in 1827 appointed a comissioner to as¬
certain, by actual survey the best line either by R. Road
or Canal, between the two seas.
The Commissioner reported in favour of the latter, and
an estimate was subsequently made by a French engineer
that a canal forty miles in length might be constructed
across it at an expense of less than three million of dollars
—but the ultimate death of the illustrious patron of the
scheme, put an end to its further prosecution. After the
acquirement of the Californias from the Mexican Govern¬
ment and the disvovery of the gold fields in that region,
another impetus was given to the scheme and in 1847 an
exclusive right of way was obtained from the Government
of new Granada and a company formed by American
merchants and capitalists, who are vigourously prosecu¬
ting the Rail Road across the Isthmus of Panama to com¬
pletion.
Previous to this however, in 1842, on application of Don
Jose deGaray, the Mexican Government conferred a grant
empowering him to open a communication across the Isth¬
mus of Tehuantepec—the terms and conditions of which
see in the appendix ; also the contract of A. G. Sloo & Co.
for the same or similar purposes.
France with a view of advancing the value of her oceanic
possessions has been deeply alive to the importance of this
measure. Under the special patronage of Guizot and
Admiral Roussin, a private survey of the Isthmus has been
made, the importance attributed to which, may be ima¬
gined, by the careful suppression of its details from the pub¬
lic.
How important therefore that we, who have an engross¬
ing interest in this subject, should protect ourselves from
being out stripped by those whom our rapidly advancing
destiny already promises to leave behind.
The English Government,though the junction of the seas
has been repeatedly and strenuously urged by the represen¬
tatives of some of her most important mercantile interests,
have betrayed an apathy upon the subject, which if not ac-
30
counted for by the principles of her usually selfish policy,
would appear inexplicable ; but she doubtless reasons thus
—"Let well alone."
"By the present routes around the Cape of Good Hope
and through the Isthmus ofSuez, we have a fair start with
the best, and a superior chance over most other routes for
the Indies ; and while our established power in that region
and our superior marine secures us a preponderance in her
trade, it would be madness to contribute to afford superior
facilities and advantages to others. Through her geogra¬
phical position, the U. States, from whose wonderful en¬
ergies and fearful strides toward maratime equality, we
have every thing to fear, can more readily avail herself of
the benefits of this passage than any other nation."
"Let us therefore ' let well alone ' and be content with
our present supremacy upon its present basis ; unless, in¬
deed, we can gain a superior advantage by monopolizing
a Mexican route to the shores of the Pacific."
Having thus measured the importance attributed to the
design of shortening the western passage to the Indies,
by the immense sums which have been lavished and the
hazards which have been braved upon the mere hope of
its accomplishment, is it not incumbent upon us to in¬
quire if we have not within our own boundarys, the means
and facilities for affecting it, and if we have, is it not
likewise incumbent on us, to carry the long desired sub¬
ject to its fulfilment ? We owe this to our own charac¬
ter, to our posterity, to the world—and we most specially
owe to the genius of the Fifteenth century (which prose¬
cution of this very plan redeemed us from the ocean) the
completion of the purpose which we barred.
The circumstance of England's opposition to the plan
(or a similar one) is alone an urgent motive to the under¬
taking ; the revolutions of each succeeding day strength¬
ens the opinion that our interests and policy are founded
upon antagonistic principles. We are her natural rival
upon the ocean and as we advance she retires. We are
the only power that ever baffled her arms, and the
31
course of things have marked us as the heir of her
strength, and the successor to her trident. Already, the
commerce of the globe divided into eight parts, gives more
than five between us two, and a subdivision affords us an
equal share, less a fraction. Here, to use the expression of
one of her own writers, is a "great fact" ;—a fact so preg¬
nant that it turns Speculation into Prescience, and points
to the decree of Fate in our future and speedy preponder¬
ance.
There is a divinity that shapes the ends of nations as of
men, and we may discern the fulfilment of the maxim, in the
continual defeat of the most daring enterprize of man as
applied to this design, through four centuries. Not ripe
for its great revolution, Providence has denied it to the
world until the hour should arrive for the first great step
toward perfecting the grand scheme of the creation. A
thousand combining influences tell us that the time has
come ; the universal beams of knowledge, have driven Su¬
perstition and Ignorance from the stage of action to mope
in the dreary cells, which imprisoned under them too long
the genius of mankind. Science having stripped experi¬
ment of its terrors, measures with accuracy the results of
every assay, and despising the obstacles of nature, whose
elements, nay even the forked lightning itself, she has
fastened to her car, feels as capable of beating down the
barriers of a continent, as of measuring the distance of a
planet.
A'new principle has been evoked, which though simple
in its pretentions, and matter of fact in its operations, will
share in future times the honor of the Mariners' Compass,
and the Printing Press, in civilizing and advancing man.
The object of each is sympathetic with the other ; the re¬
sult of each must tend to the same end. Their principle
is intercourse, and their spirit progress. The first, awoke
our hemisphere from its sleep in the abyss ; the second in¬
fused sentiments which turned the footsteps of our ances¬
tors towards it, and wc must now invoke the third, for the
final accomplishment of its destiny 1 It is true there is
32
much that is startling in the proposition of a National Rail
Road over our widely extended domain, and much that
will strike the hasty observer as chimerical ; but when we
have seen stupendous pyramids raised by human hands in
the midst of a sterile and shifting desert, while we know
that despite the obstacles of Nature and the rudeness of Art
a semi-barbarous people many centuries before the christian
era, erected around their empire a solid barrier of wall thir¬
ty feet in height, and so broad that six horsemen could ride
on it abreast, carrying it over the most formidable moun¬
tains, across rivers on arches, through the declensions and
sinuosities of valleys to the distance of fifteen hundred
miles, let us not insult the spirit of this enlightened age, by
denouncing the plan of a simple line of rails, over a surface
but little greater in extent, without one half the natural
obstacles to overcome, as visionary and impracticable.
The riches of the most unlimited market in the world would
be thrown open to our enterprize,and obeying the new im¬
pulse thus imparted to it, our commerce would increase till
every ocean billow between us and the China sea would
twinkle with a sail. By the superior facilities conferred
on us by our position and control of the route, we should
become the common carrier of the world for the India trade
"Brittania rules the wave," would dwindle to an empty
boast, and England would have to descend from her arro¬
gant assumption of empire over the seas, to the level of a
suppliant's tone, in common witli the great and small of
the European powers, for the benefits of this avenue of na¬
tions. The employment as common carrier could be secur¬
ed to us by the imposition of tonnage duty, heavy enough to
amount to a prohibition upon all foreign bottoms arriving
at our Pacific coast. There is nothing remarkably selfish,
neither is there any thing repugnant to fair dealing in
this regulation ; we are deserving of one special advantage
as a premium for conferring this benefit upon all, and we
have the example of Great Britain herself to justify us
in the adoption of the rule. The rapid and excessive in¬
crease of our commercial marine, would necessarily fol-
33
low this result. Encouraged by the comparative ease and
safety of its service, and enticed by the liberal wages which
the demand for so many hands would ensure, thousands of
our young men, whom the dangers and privations of a sea¬
faring life have heretofore detered from carrying out the
natural desire of visiting foreign climes, would embrace
the sailors occupation, and a nursery would thus be estab¬
lished, from whose exhaustless source the demand of our
increasing Navy would always find a supply. Our relations
with China would be guarded and strengthened, and in case
a necessity should arise to redress a wrong, resent an insult,
or resist an aggression we should be able by the speed of
our advices to throw a prepondering military force there
three months previous to any European power. There
are other views which open at this stage of the analysis.
We are in possession of a golden empire on the Pacific slope
which is comparatively unprotected, and it requires no
prophetic vision to see, that, in the event of war with any
considerable power, she would be sacrificed at the outset
in the absence of that assistance which she has a right to
demand, at the hands of the General Government. The
Californias have "opened out" a new and valuable field of
enterprize to our restless People and to the world. Her
gold fields have given an impetus to every branch of in¬
dustry—Cities, Villages, Towns and Hamlets, have sprung
up on every side with a rapidity unheard of in any age of
the world. Commerce too felt the quickning influence, and
as if by magic ships were sent forth from every port on earth,
which if formed into a line would belt the universe. The
People of California are entitled to aid and protection in
the event of a hostile invasion. They are the "bone of our
bone" and the backbone of our present unparalelled pros¬
perity. They are crying aloud from their hill tops and
valleys for the Rail Road as their steadfast dependence in
the day of trial, and their sure guarantee for all time in
the sincerity and faith of their government. Shall they
continue to appeal in vain.
I have already exceeded my intended limits to this
M
branch of the subject, but it is so urgently demanded for
the present, and so full of hope for the future, that I yield
vrith reluctance to its dismisal. The vast expanse of the
Pacific ocean has been as yet but imperfectly explored, and
there is reason to believe there are many islands reposing on
its bosom whose fertile shores have never met the eye of
civilized man. Some of these ocean gems lie directly in our
eastward or westward track, and their value to us as rest¬
ing places and points of supply, as well as posts for the
erection of our fortifications, would be inestimable. This
brings to mind the fact, that there is one important branch
of commercial policy, hitherto overlooked and neglected
by us, which the course of things now call upon us to
adopt ; and that is securing under our own flag and rule of
maritime ports in the différent fields of our commercial en-
terprize. The Rail Road will hasten this consummation,
our country is as capable of a great effort as a mean one,
and we have a right to expect one worthy of her genius
and character. Time is the great object! A series of
rapidly developing political events prove that the antag¬
onists of liberty and feudalism are fast approaching
their final struggle. Alarmed at our astonishing progress,
the monarchial governments of Europe are preparing to
bring their centralized force to bear upon the genius of
republicanism, and when the collision takes place we as
the grand promoter and defender of the latter, will have to
sustain the whole brunt of the shock. Let us, therefore, arm
ourselves against the crisis in time ! Let us extend our
communications across our country's length and breadth ;
secure the possessions of the points that will enable us to
protect the interests of our commerce in both Oceans and
the East, and assume a position of the champion of the
world's emancipation. Aside from the considerations of
national agrandizement, this project is warranted as a
measure of political economy which makes its appeal di¬
rectly to the heart of every philanthropist. It would be
a benefaction to the oppressed masses that would come
with a peculiar grace from a parental government to its
35
suffering children, and in addition to its being a measure
for their gradual elevation and relief, it would also be an
evidence, that among all the chartered privileges lavished
time and again upon the rich, the government could find
in its heart, to make at least one charter for the poor.
Lastly, if the magnetic telegraph should be added to this
comprehensive scheme, where shall calculation look for
the limits of its vast results? Basing our conclusions
upon the wonderful advance in the present century, it is
not extravagant to predict, that in less than fifty years we
shall behold in our beloved country, a government hold¬
ing the preponderance of power, owning a population of
a hundred millions, with a central capital in the great val¬
ley of the Missisippi, commanding from its neuclas of pow¬
er an electric communication over three millions square
miles, and diffusing its congregated science, art, philosi-
phy, and intelligence, its enlarged spirit of liberty, philan¬
thropy, peace and good will, to the uttermost ends of the
earth in a fullness that will realize at last the fondest
dreams of the millenium.
Arouse then, America, and obey the mandate which des¬
tiny has imposed upon you for the redemption of a world !
Send forth upon its mighty errand the spirit of enfran¬
chised man : nor let it pause until it bears down every bar¬
rier of unrighteous power ; till it enlarges the boundries
of freedom to the last meridian, and spreads its generous
influences over every nation on earth 1
WM. M. HALL,
Rail-Road Head-Quarters, f
corner Broadway and Dey st. >
New-York, September, 1853. )
THE GARAY GRANT.
"On the first of March, 1842, Santa Anna, then President'
of the Republic of Mexico and invested with the supremo
36
dictatorship, granted a concession to Don Jose Garay, a
Mexican citizen. In it he says that, "in the name of the
supreme government, and under the most solemn protests,,
he declares and promises that all and every one of the con¬
cessions mentioned in the decree shall be honorably ful¬
filled—now and at all times pledging the honor and faith
of the nation to mantain the projector, Don Jose Garay,
as well as any private individual or company, succeeding or
representing him, either native or foreigners, in the undis¬
turbed enjoyment of all the concessions granted."
By the terms of the decree of this date, the government
of Mexico gave numerous important privileges, and a large'
grant of land, comprising all that was vacant for ten lea¬
gues on each side of the line of communication, to Jose
Garay, for the purpose of enabling him to establish a com¬
munication by steam between the two seas, across the Isth¬
mus of Tehuantepee, either by railroad or water.
On the 9th of February, 1843, the government of M$s-
ico issued orders to the governors of the department of
Oaxaca and Vera Cruz (within whose limits the Isthmus
is comprised,) directing that Garay should be put in pos¬
session of the vacant lands conceded to him by the first de¬
cree, and that every facility should begranted for the prose¬
cution of the enter prize.
These orders were issued by Nicholas Bravo, then Pres¬
ident of the Republic, and on the same day another decree
was issued by the same President, declaring that in the
grant of vacant lands were comprehended all lands which
had been previously granted by the government to natives
or foreigners, and which remained uninhabited and uncul¬
tivated. These decrees were executed by the local author¬
ities, and Garay was put in actual possession of the lands.
On the 6th Oct. 1843, Santa Anna, who was again Presi¬
dent, issued a decree stating that the surveys by Garay
had been concluded, and the work about to be begun ; and
ordering the Governors of Oaxaca and Vera Cruz to fur¬
nish convicts to the number of three hundred, to be em¬
ployed on the work.
37
On the 28th of Dec. 1843, by another decree of Santa
Anna, the period for commencing the works on the Isth¬
mus, which, under the original grant, was to expire on the
1st of July, 1844, was extended to the 1st of July, 1845.
In the fall or winter of 1844, Santa Anna was no longer
in power. The country was exposed to constant internal
convulsions, resulting from the struggles for power of
different leaders, who rapidly succeeded each other in
the Presidency ; and in the beginning of 1845 the difficul¬
ties with the United States had already assumed a mena¬
cing character. Gar ay became satisfied that the time al¬
lowed him was insufficient for organizing an enterprise of
such magnitude, and in June, 1845, he made application
to the Mexiean Congress, asking a further delay, soliciting
additional privileges and facilities for the introduction of
the necessary materials and supplies, and praying that fur¬
ther inducements, in the way of exemption from taxes and
imports, might be awarded to persons disposed to settle
as colonists on the Isthmus.
A law was introduced in the Mexican House of Repre¬
sentatives in accordance with the tenor of this application,
and was passed by that body. It was sent to the Senate,
there referred to a committee, who reported favorably,
and was on the eve of being submitted to a vote of the
Senate, when there occurred oneof those events unfortunate¬
ly too frequent in the history of our neighboring Repub¬
lic.
The administration of Parades was attacked and sub¬
verted by Mariano de Salas at the head of an armed force-,
the Congress was dissolved, and Salas took possession, as
dictator of the supreme executive power. This advent of
Salas was marked by consequences much more important
than those which usually accompany the numberless pro-
nuneiamentos which have occurred in that country. The
entire system of government was revolutionized ; the form
was changed from acentral, or a consolidated, intoafedera-
tive one ; the quotas of contribution of the several states
of the Republic were fixed; the most important adminis-
38
trative measures organized, the liberty of the press estab¬
lished, Ac &c.
All these measures which now exist in Mexico, and this
form of government now established there, derive their
origin from decrees of Salas—no one of which has ever
been brought for one moment in to doubt or question, ex¬
cept in this single instance, which will presently be noticed.
While Salas was thus exercising, de facto, the supreme
power of the government—while his dictatorship was thus
unquestioned, his attention was called to the law which
was on the eve of being passed, when Congress was dis¬
solved ; and, after examination of the subject, he promul¬
gated his decree of the 5th oUNov. 1846r which is a copy
of the law that had passed the Mexican House of Repersenta-
tives, and the Committee of the Mexican Senate.
By the terms of this decree the delay of commencing
the works on the Isthmus, was prolonged to the 5th of
November, 1848. The work was actually commenced
prior to that date, as is established by the official reports
of the Mexican authori ties on the Isthmus. The simple
narration of the foregoing facts seems amply sufficient to
establish in the most conclusive manner the validity of
the grant in question, and to preclude the Mexican gov¬
ernment at this late date from raising a question on the
subject. All these decrees, however, formed a contract,
to which the only parties in interest were the Mexican
government and one of its own citizens, and in which no
foreign nation would have a right to interfere ; and how¬
ever scandalous might be the violation of public faith
committed by a confiscation of the grant, neither the gov¬
ernment nor the people of the United States would have
the slightest ground for interference.
It becomes necessary, thereforo, to consider in what
manner our government and peoplo have acquired an in¬
terest in this matter ; and the extent of their right to en¬
force the execution of the grant.
It will be recollected that, by the terms of the conces»-
sion, Garay was authorized to assign his rights to any
39
private individual or company—natives or foreigners. He
availed himself of this privilege, and made transfers of all
his right, in the years 1846 and 1847, to Messrs. Man¬
ning & Mackintosh, English subjects residing in Mexico.
This transfer was duly notified to the Mexican govern¬
ment. It was fully recognized and approved, and on the
complaint of Manning & Mackintosh, President Herrera,
on the 6th and 10th of August, 1848, issued orders to the
governments of Vera Cruz and Oaxaca, to prevent the
putting of mahogany on the Isthmus by any other than
the English company. In 1847, Mr. Trist, by virtue of
instruction from Mr. Polk, when negociating the treaty
of Guadaloupe Hidalgo, tendered fifteen millions of dol¬
lars to the government of Mexico for the right of way in
favor of the United States across the Isthmus of Tehuan-
tepec. The commissioners, empowered by Mexico, to
treat with him, replied : "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 transfered his
rights by the authorization of the Mexican government
to English subjects, of whose rights Mexico could not dis¬
pose."
A declaration so important as this, could not fail to
awaken the attention, and excite the interest of every
American citizen. Mexico had declared, on the most sol-
emu occasion of public intercourse between nations, that
the grant, in her estimation, was beyond question ; that
its validity admitted of no doubt.
Fifteen millions of dollars are offered for the sale, and
she replies : "I cannot sell, because what you want to buy,
belongs to others—to English subjects." Perhaps it will
be said that the Commissioners appointed by this skele¬
ton of Mexican greatness, to treat with Mr. Trist, had no
authority. If so, where in the name of civilization can
authority be found ?
I believe its a well settled principle in law, that a par¬
ty in litigation can take no advantage of its own wrong;
and the Mexican government, if they do not already,
40
should soon be made to so understand it. Mr. P. A.
Hargous, a native of Pensylvania, but whose long expe¬
rience in the trade with Mexico, had enabled him to appre¬
ciate the immense value of this grant, became its purcha¬
ser from Manning & Mackintosh, and subsequently asso¬
ciated with him in the prosecution of the enterprize a
company of citizens of New Orleans. Before commen¬
cing the works, these American citizens were, however,
desirous of ascertaining beyond a doubt the honest inten¬
tion of Mexico to forward this great enterprize, and also
of shielding themselves, under the protection of their
own government, against the dangers arising from the
constant change of rulers and forms of government in that
country. They therefore applied to their government
for this two-fold object, and met with every encourage¬
ment and assistance that a subject so deeply interesting
to the nation was calculated to elicit. Mr. Letcher was
instructed to inform the Mexican government of the de¬
sire of the holders of the grant to commence their work
by a thorough resurvey of the Isthmus, as full confidence
was not reposed in that which had been made by the en¬
gineers employed in 1842 and 1843, and to make over¬
tures for a treaty of joint protection of the work. The
Mexican government made not the slightest objection—did
not suggest a doubt of the rights of the company, forwarded
passports for their engineers and officers, and issued or¬
ders to the department at Oaxaca and Vera Crux to avoid
interposing any obstacle to their work ; but, on the con¬
trary, to afford them aid and hospitality. This occurred
in April, 1850. The engineers were accordingly sent, the
ports thrown open for their supplies, and more than one
hundred thousand dollars have already been expended in
the surveys, and in opening and cutting roads through
the most open part of the country. On the application
for a treaty, the Mexican President and cabinet desired
that a modification should be made in the terms of the
grant, and especially that the company should give up its
right to fix its own rates of toll for goods a^nd passengers
41
and should consent to admit the joint control of the two
governments on that subject. They therefore introduced
a clause to that effect in the treaty, and it was perfectly
understood that "the rights of the grantees could not be
effected without their own consent." Another clause of
the treaty provided that "the actual holders of the grant
should file their assent to the treaty before its ratification
by the two governments and in this form the treaty was
concluded in Mexico between Mr. Letcher and the Mexi¬
can President and cabinet.
This is not all however. On the arrival of the
treaty in this country, the holders of the grant were in¬
vited by the Secretary of State to examine it, in accor¬
dance with its terms, and to signify their approval or dis¬
sent. On examination, although satisfied with the pro¬
visions of the treaty, they were fearful of future difficul¬
ties that might arise from the ambiguity of certain pas¬
sages, and declined to approve it, stating the clauses to
which amendments were solicited. The treaty was sent
back to Mexico. In the mean time, a new election for
the Presidency of the Republic had been held ; a new Pres¬
ident inaugurated, a new cabinet formed. On the appli¬
cation for amendment of the treaty, the request of the
grantees,through their government were favorably consi¬
dered, many of them accorded, and a new treaty negotia¬
ted. During this entire negotiation, not a hint was thrown
out, not a suggestion made, indicating on the part of either
of the two Presidents of Mexico, or any member of the
two successive cabinets, a doubt as to the entire validity
of and binding force of the grants and decrees above re¬
lated, nor as to the titles of the present holders. And it
is, perhaps, worthy of remark, that they were both negoti¬
ated in the city of Mexico, by Manual G. Pedraza, an ex-
President of the Republic, and at that time President
of the Mexican Senate. The second treaty was sent
to this country for approval and ratification, and on
the 18th of February, 1851, the following letter was
written, viz :—
42
Department of State,
Washington, 18th February, 1851. )
To P. A. IIargous, Esq..Washington
Sir—I have to inform you that a convention between the
United States and the Mexican Republic, relative to a
transit way across the Isthmus of Tehuantepec, was signed
in the city of Mexico, on the 25th ultimo. As its twelfth
article requires, that the holder of the grant confered by
the Mexican government, pursuant to its decree of the
1st of March, 1842, shall file his assent to the Conven¬
tion in the office of the Mexican Minister, at Washington,
before the instrument shall be submitted to the Senate of
the United States. You are requested to call at this de¬
partment for the purpose of examining the convention.
I am, sir, very respectfully,
Your obedient servant,
DANIEL WEBSTER.
In compliance with Mr. Webster's invitation, the treaty
was examined by Mr. Hargous, and approved for himself,
and in behalf of the company. The treaty, together with the
title of the grant, were submitted to the Senate, unanimous¬
ly approved and ratified, and the treaty was engrossed,
signed, and returned. In the mean time, and before the
treaty had been sent back to Mexico, Pedraza had died,
and a sudden change seems to have occured in the views,
opinions, and feelings of the leading men of that country.
Perhaps it would not be proper at this time to state fully
the influence brought to bear on the subject, nor the par¬
ties most actively engaged in exciting a feeling of hostili¬
ty towards the people of this country, with the view
of defeating this great enterprize. It is sufficient to
state, that a law was introduced into the Mexican Con¬
gress, and passed, whereby the Congress declared that
the decree of General Salas, of November, 1846, was null
and void, because he had no power to make such a de¬
cree." This is the only action of the Mexican Congress
43
on the subject, and although the evident intention is to
annul the original grant made by Santa Anna, in 1842,
yet as no pretext could be invented for attacking it, the
committee of the Mexican Congress were driven in their
reports to the two houses, to rely solely on the ground
that Salas was without the power to grant to Garay a de¬
lay of two years for commencing his work, feeling certain
that if they could succeed in this point they would be
able afterwards to attack the original grant, on the ground
that the work had not been commenced in sufficient time.
Let this fact, however, be borne in mind. Mexico has
neither annulled the original grant, nor rejected the treaty.
The rights of the company are precisely such as they were
prior to the law of the Mexican Congress, with this single
exception—that the law just passed, affords a pretext on
which the government might bring suit against the com¬
pany to annul its grant. Whether the pretext thus sought
by the Mexican Congress can be made available for the
intended purpose, is the next subject for consideration.
It might be sufficient on this point to say, that the gov¬
ernment of Salas was a government defacto, and that the
universal principle on which all civilized nations act, is
to consider that the government actually exercising su¬
preme power in a country, is entitled to represent that
country in all foreign relations ; and that even if its pow¬
ers are usurped, its acts are as binding as would be those
of a regularly constituted government.
Our country, in its relation with others, never under¬
takes to determine whether the parties found in possesion
of the sovereignty are rightfully entitled to it ; but treats
with them as having the undoubted authority to act, and
to bind the country whose destinies are at the moment
under control. But the application of this general prin¬
ciple is not required in the present case, and a plain reci¬
tal of the history of Salas' administration affords the am¬
plest refutation of the position now, for the first time, as¬
sumed by Mexico. In his pronunciamento, when he came
into power, he declared that "the cessation of all anterior
44
pacts is indispensible, because they are all either affected
with nullity, or repugnant to a portion of society ; but
the common law, which is in full force, and those which
this provisional government will publish, will, to a certain
extent, fill the void created by the present state of things.
So that, on assuming power, he declared himself authori¬
zed to make and publish laws ; or, in other words, declare
himself dictator.
After having accomplished his purpose of creating a
federal system of government ; after causing to be held
an election for President, which resulted in the choice of
Santa Anna, and after convoking the Congress in order
to surrender his dictatorship, he proceeded, through his
Minister of Foreign Relations, to render an account to
Congress of what he had done. This Minister reported
to Congress "that the provisional government of Salas
had exercised, as the nature of the case required, a real
and very ample dictatorship, which lasted till the new
constitution." The Minister then set forth, with great
minuteness, in a report printed and sent to Congress, all
the decrees rendered by Salas. Among them are the fol¬
lowing : A decree organizing the bureau of general ar¬
chives ; A decree relative to the liberty of the press ; A
decree relative to colonization ; A decree relative to lit¬
erary property.
The decree of JYovember, 1846, extending for two years to
Gar ay the period for commencing the work on the Isthmus of
Tehuantepec. A decree authorizing popular meetings. A
decree concerning naturalization. And in closing he sta¬
ted, "that he had called the Congress together at the ear¬
liest possible moment, in order to put an end to the dic¬
tatorial period." When this account was thus rendered
by a dictator, laying down his temporary power in the
face of the constitutional authorities, not one voice was
heard in Mexico, in her councils, nor in her press, breath¬
ing a suspicion of the purity of his motives, the validity
of his acts, or the extent and nature of his power, which
he declared he had just exercised. Ever since then, the
45
Mexican Congress, executive, courts of justice, and public
functionaries of all classes, have been in the habit of
citing the decrees of Salas as a part of the fundamental
law of Mexico ; nay, it will scarcely be credited, that the
very Congress which declared that Salas had no power
to pass a decree in favor of the Tehuantepec grant annull¬
ed a law in the State of Sonora, on the ground that it violated
the decree of Salas on the subject of colonization. Comments
on facts like these could not aid in a proper appreciation
of them. Six successive administrations have directly or
indirectly declared the validity of the grant now held by
the citizens of the United States. Three different admin¬
istrations, in negotiating with this government, have in
the most solemn manner recognized its binding force.
Where now springs this difficulty or the doubt ? There
can be but one answer. Mexico had avowedly no control
over this concession, when it belonged to English sub¬
jects. Her views of her rights were only changed when
a transfer had been made to citizens of the United States.
That this is not a gratuitous assertion, is apparent
from the report of the committee of the Mexican Senate
of the 22d March last, in which it is asserted that—"The
fact has now become apparent, which was only before sus¬
pected and had been the object of serious fears—the enterprise
has taken root in the United States, and the privilege is now,
as has been announced in public documents in the hands
of inhabitants of that nation, who are using every effort
to obtain the protection of their government, in order to
secure the success of the work, and the removal of all ob¬
stacles to its completion." It is in this same spirit that
the officers engaged in the survey, whose conduct, in con¬
formity with the instructions of the company has been
such as to secure the friendship and sympathy of the en¬
tire population of the Isthmus, have been exposed to wan¬
ton insults and outrages from the very government which
had promised them aid and hospitality, and invited its
presence by its passports—that in fine, a proclamation
has been published directing their expulsion from the
46
country, and ordering troops to be sent to the Isthmns
for the enforcement of this decree.
TEHUANTEPEC RIGHT OF WAY. COL. A. G.
SLOO'S CONTRACT WITH THE MEXICAN
GOVERNMENT.
For long years have the government and the people of
the United States desired a road constructed across the
Isthmus of Tehuantepec, in the Republic of Mexico ; and
efforts were made to use a grant made to Garay as the
means of effecting this object. The government of Mexico
considered that grant forfeited ; but it has recently made
a contract with À. G. Sloo & Co., to construct a plank
and railroad across the isthmus, and proposes to this
government to enter into treaty to protect the construc¬
tion and commerce of this great public highway. Efforts
have been made to retard this work by interposing the
lapsed or debated grant of Garay. I regard the Garay
grant a judicial question, and one not fit for executive or
legislative interposition by this goverment; and, in order
that the question may be considered and understood, I have
collected and arranged some of the leading facts of the
case, and some authorities of law which may aid in eluci¬
dating the subject.
On the 1st of March, 1842, by a decree of the Mexican
government there was granted to Garay, a Mexican citizen,
certain privileges for constructing a road across the isthmus
of Tehuantepec, with certain conditions; which grant was
subsequently assigned to Manning & Mackintosh, English¬
men, and by them assigned to American citizens.
On the 5th of November, 1846, Gen. Salas (who was
elevated to the head of the provisional military govern¬
ment which was organized at the time when Santa Anna
was called to place himself at the head of affairs) extended
the privileges of the Garay grant.
47
On the 22d of May, 1851, the national Congress of Mex¬
ico, with the sanction of the Executive, declared the decree
of Gen. Salas of the 5th of November, 1846, null and void ;
inasmuch as the provisional government of that period
had no power to issue the same.
In the mean time Garay had been informed, on the 8th
of April, 1849, that inasmuch as the period for which
the privilege had been extended had expired without a
compliance with the terras stipulated therein, the grant
itself had ceased to exist.
From the year 1849 up to near the close of President
Fillmore's administration an effort had been made to
bring about a convention or treaty between the govern¬
ment of the United States and that of Mexico, in which
it should be stipulated that any grants which had been or
should be made in regard to the Tehuantepec road should
be faithfully guaranteed, and proper facilities afforded.
These efforts were without success ; the United States in¬
sisting that American citizens had embarked in the enter¬
prise on the faith of the Mexican grant and decrees, which
could therefore not be annulled, and the Mexican govern¬
ment asserting the power either of the legislative or the
judicial tribunals to declare the grant void, and that it
was entirely a matter of Mexican law.
It will strike any one who reads the correspondence
between the two governments, that whilst the American
diplomatists are endeavoring, by every species of argument,
to show that the grant of Garay was already within the
scope of public international law, and consequently could
be insisted upon by the principles of that law, yet the
United States were all the while seeking a recognition of
this same grant by treaty for the very purpose of making it
a matter of public law.
By a reference to Schmidt's Civil Law of Spain and
Mexico, preliminary title, and the authorities cited in the
note, it will be seen that by the Mexican constitution a
general Congress has the power of making, interpreting
and abrogating laws ; and that the only difference between
48
laws and decrees is that the former are general, but the
latter applicable to some determinate time, place, person,
or corporation. And whether or not the power of the
Mexican Congress extends over laws and decrees which
are in the nature of contracts is a question of Mexican law,
and for the Mexican authorities to determine. In tho
United States the State legislatures cannot impair the ob¬
ligation of contracts, simply because by the federal consti¬
tution it is prohibited. Whether or not the Congress of
the United States may pass such a law is a question yet to
be determined, but which when determined will be upon
principles of American law, and not by the law of nations.
If, then, by the Mexican law, as interpreted by her
Congress or judicial tribunals, a grant could be (as in
countries under Spanish dominion it could be) annulled,
then could only such redress be sought for as Mexico her¬
self should hold out. The object of a treaty would be to
bring it within the scope of public law, and to make it a
case in which the public faith of one nation having been
pledged to another, a violation of that pledge would be
punished under the law of nations. Nor could it make
any difference whether the grant should remain in the
hands of the Mexican grantee, or pass into the possession
of foreigners, his assignees. Bach assignee would take it
cum mere ! The mere assignment of the grant could not
alter the law of its existence; and it has always been held
that when citizens of one country deal with citizens of an¬
other country respecting matters to be determined lege loci,
that it is not a matter for national interference, though
the law should be annulled.
The Garay grant, therefore, having never been guaran¬
teed by treaty—it having been revoked by the acknow¬
ledged authorities for so doing—was no longer an impedi¬
ment in the way of any future grant which Mexico might
see fit to make.
Accordingly, on the 5th of February, 1853, the Mexican
government decreed that the proposals of A. G. Sloo
should be accepted with certain modifications ; in pur-
49
-snance of which a contract was entered into by Arroyo,
acting Minister of Home and Foreign Affairs, on the part
•of Mexico, and Ramon Olarte, Manuel Payno, and Jose
Joaquin Pesado, who represented all the Mexican interests
and companies of every kind who had any concern in the
Tehuantepec road, viz: what was called the Mixed Com¬
pany, the Companies of Oajaca, and Fitipe Garcia and
associates, and also the agents of the States of Chiapas,
Tabasco, and Oajaca.
The contract has been published. It is, then, a contract
■on the part of the supreme government of Mexico on the
one part, and A. G. Sloo, who represents the foreign in¬
terests, and Manuel Payno, Ramon Olarte and Jose Joa¬
quin Pesado, who represent the Mexican interests, with the
«concurrence of Oajaca, Tabasco, Chiapas, and in concert
with the company called Oajaca and Felipe Garcia and as¬
sociates.
The foreign and Mexican interests constitute together
the mixed company. This mixed company is formed
by constituting certain persons as the representatives of
the two classes of interests which are to constitute that
mixed company. For instance, A. G. Sloo is made by the
charter or contract the representative of the foreign por¬
tion of the mixed company, and Ramon Olarte, Manuel
Payno and Jose Joaquin Pesado the representatives of
the Mexican portion of the company—they being thereby
empowered to go on and form their respective companies
under the contract, and to do all acts necessary for that end.
The full power and authority both of Mr. Sloo on the one
hand, and of Olarte, Payno and Pesado, are expressed in
the contract itself.
The decree and contract were made by Ceballos, who
was President of Mexico by a double title—first, as the
President of the Supreme Court of Justice, (see Art. 97 ol
the constitution of Mexico ;) and also in accordance with
the 96th article of the same, he was constitutionally elec¬
ted President ad interim. (Act of Reform.) The decree
of Ceballos was in pursuance of the enactment of the
50
Congress, dated January 11, 1853, and was also m pur¬
suance of the " convocatoria," issued on the 29th July,
1852, as well as of the decree of 14th May 1852,
The States of Chiapas, Tabasco, and Oajaca, by pub¬
lished decrees, authorized their agents to join in the
mixed company, and also the companies named Oajaca,
and Felipe Garcia and associates. In view of all these
facts, (which are recited in the contract,)the supreme gov¬
ernment of Mexico makes the contract, appended to the
decree of February 5, 1853, with À. G.Sloo, on the part
of the foreign, and Ramon Olarte. Manuel Fayno, and
Jose Joaquin Pesado, on the part of the Mexican compa¬
nies. Olarte, Payno, and Pesado have by powers of attor¬
ney irrevocably made A. G. Sloo the representati ve of the
entire mixed company.
Now, if the decree containing the grant to- Garay was
conditional ; if the conditions contained in it were not
performed within the stipulated time, (as the first condi¬
tion in the decree of 1842 is admitted not to have been ;}
if, consequently, in 1846 the grant had ceased by its own
terms, and Salas had no power to make a new or revise
an extinguished grant, and if, moreover, there was no-
treaty guarantying the performance of the contract and
providing for its construction and interpretation, and con¬
sequently the authorities of Mexico were to adjudicate all
rights under it upon the principles of Mexican law ; if
those authorities have decided that the original grant to-
Garay had ceased from abandonment or laches, and that
the subsequent decree of Salas was null and void, then it
follows that the Garay grant does not and ought not to
constitute any obstacle in the way of an acceptance of the
grant of Mr. Sloo and his associates.
And if this grant shall be guarantied by treaty to be-
faithfully carried out according to its terms, then unques¬
tionably our government will have a perfect right under
the law of nations to insist upon the full execution of
such a treaty.
In addition, it may be well to add some considerations
51
and authorities on a few points of fact and of law to il¬
lustrate the foregoing conclusions.
In the first place, it may be well to state that the first
article of the decree of the Mexican Congress of January
11th, 1853, fully authorized President Ceballos to make a
final contract with A. G. Sloo and company, and also
President Lombardini to form a treaty with the American
minister, and that their powers were ample and complete
without any subsequent reference to Congress. The lan¬
guage of this article is :
" The government is hereby empowered to dictate all
such measures as it may think proper for the re-establish¬
ment of public peace and the perservation of the integrity
of the national territory, without, however, changing the
form of government, nor impeding or altering the exercise
of the supreme powers of the Union, nor that of the States,
and also without settling the ecclesiastical affairs, nor the
negotiations pending with the court of Rome, nor shall
the government assume to itself judicial attributes, or at¬
tack property, or alter any of the existing treaties"
In illustration of this decree, it may be cited that in 1843
Santa Anna, as President of Mexico, had conceded to him
similar powers, and made a treaty with Great Britain in
relation to the slavery question, which treaty never was
submitted to Congress ; and it was then, and is now, re¬
garded as constitutional and binding. And so the sanc¬
tion of the Mexican government is complete and pefect in
relation to the recent treaty, which now only requires the
sanction of the President and the United States Senate to
complete its binding validity on both governments.
Next, as to the duty of this government to urge upon the
Mexican, against its own consent, the enforcement of the
Garay grant. And is this government committed? It
has been urged that the United States is bound to main¬
tain the Garay grant, because American citizens are agents
or assignees of Garay, through various English subjects.
As to this government being committed to enforce this
private speculation of Garay and company, it is as un¬
founded in fact as it is absurd, by the very nature and or¬
ganization of our institutions. How committed? By
52
whom committed, and when committed? Who has the
power to commit it? The Executive of this nation is not
like the executives of the imperial governments of Europe,
which alone make treaties. He is co-ordinate only with
the Senate in the treaty-making power. If an cabinety
minister had attempted to commit the government by pri¬
vate letters or otherwise, the attempt would have only
thrown discredit on himself. The pretence that even the
Executive, as far as its power extends over the subject,
has been committed to force the Garay grant, is rendered
wholly futile by the letter of President Fillmore to the
President of the Mexican republic. It is true, however,
that the Executive made various attempts to have the
Garay grant carried into execution, and as often failed.
Mr. Ilosa, Mexican minister at Washington, writes to
Mr. Webster, March the 17th, 1851, that—
"It. is expressly admitted in the first article of said trea¬
ty [which was never formally ratified] that Mr. Garay's
contract may, by judicial authority, be set aside; nor could
this admission have been omitted, seeing that the Supreme
Court of Mexico has not yet decided between the claims
of the government, which asks that the grant and privili-
ges of Garay shall be declared to have become extinct,
the execution of his contract being no longer practicable,
and the allegation of said Garay, who insists upon his con¬
tract as still valid.
"The Mexican government is desirous in this manner
to establish a distinct like of demarkation between the
treaty and the grants and privileges of Garay, thinking it
proper to declare, as it does in fact declare, through the
medium of the undersigned, that from the moment the
aforesaid government had laid before Congress the fact
that, in its own opinion, the privileges of Garay had become
extinct, it never recognised the existance of any right, ei¬
ther as vested in himself, or as belonging to those persons
who, it is alleged, have succeeded him in the matter of
the contract, and that it considered such right as long
since forfeited; so thatifany act of said government should,
by erroneous of dishonest interpretation, lead to the sup¬
position that it was a tacit recognition of such right, said
overnraent does not recognise any authority except the
upremc Court of Mexico as having the power to decide
the matter. The same national tribunal shall also decide,
53
if considered proper to its jurisdiction, whether the exten¬
sion of time which has been granted to Garay to enable
him to carry out his undertaking were valid or not"—See
Ex. Doc. No. 97, 1st Sess. 32nd Cong., pp. 96 and 97.
Mr. Rosa informed Mr. Webster, on the 3rd of July,
1851, that—
"Under date of April the 8th, 1842, Don Jose Garay
was informed by this legation that the Minister of Rela¬
tions of the Mexican republic had determined, by order of
his excellency the Presidçnt, that, inasmuch as the period
for which the privilege had been extended for opening
an oceanic communication through the Isthmus of Tehuan-
tepec had expired without any efforts having been made
by the said Garay to comply with the terms stipulated
therein, all grants which had been made by the law of
May 1st, 1842, had therefore ceased to exist, and that the
republic had resumed all its rights in regard to that mat¬
ter."—Ex. Doc. No. 97, p. 81.
It should be remembered that as early as July 13, 1849,
Mr. Clifford informed Mr. Clayton that the Mexican gov¬
ernment expressed to him a desire, though discountenanc¬
ing the Garay grant, to enter into arrangements with the
United States for a right of way, (see Ex. Doc. No. 95, p
6,) which proposition was repeatedly renewed from time
to time, and which proposition was disregarded by the Ex¬
ecutive in its especial solicitude for the Garay grant.
But notwithstanding the hostility to the Garay grant,
and the willingness on the part of Mexico to make other
arrangements for the pnblic benefit of commerce, the dip¬
lomatists of the UnitedStates continued their negotiations
and threats upon Mexico to maintain this private specula¬
tion. Mr. Letcher, on the 17th of January, 1851, inform¬
ed Mr. Webster the "opposition to the treaty is violent
from almost every quarter."—Ex. Doc. 97, p. 42.
Mr. Smith writes from Mexico, April 1st, 1851, that "in
no way or shape, it is believed, could the convention have
been ratified by the Congress of Mexico, and its failure to
be approved in the United States has greatly relieved the
administration, for the grant is condemned as improvident
by all parties."—Ex. Doc. No. 97, p. 45.
Mr Letcher writes, April 8, 1851, that " it is altogether
54
impossible to make a treaty having the least connexion
with the Garay grant. The government, the Congress,
in short, the whole nation, are deadly hostile to the
grant."—Ex. Doc. No. 97, p 128.
Mr. Webster, who had quoted no authority of law to
support his dogma—to wit, that this nation was bound to
sustain the Garay grant—could have found few or none
more recent than the diplomatists and politicians of an¬
cient Greece; for, as ThucydideS has stated that "the max¬
im continually observed ,by his countrymen was that to a
king or commonwealth nothing is unjust that i usseful
or even Aristides, whose ethics were but a little more re¬
fined, distinguished in this respect between public and pri¬
vate morality, holding that the rules of justice were to be
sacredly observed between individuals, but as to political
affairs expediency might be substituted in their place.
The American functionaries seem to allow the inference
to be fairly drawn that, in their zeal to aid Garay and his
English and American associates in their mammoth land
speculation, they have lost sight of the interest which the
travelling and commercial public felt in the simple con¬
struction of the road, whether made by one party or ano¬
ther.
Not that Garay, Hargous and company, ever intended
to comply with the terms of the contract, if valid, unless
upon condition that the United States would guaranty the
success of their chance speculation. And to prove this it
is only necessary to quote Mr. Clayton's letter to Mr.
Letcher, September 18th, 1849, (Ex. Doc. No. 97, pp. 10
and 11.) After stating that "Mr. Trist was authorized to
offer thirty instead of fifteen millions of dollars," he after¬
wards, in the same letter, states that "there is every rea¬
son to apprehend, however, that the capitalists who now
are or who may hereafter become interested in that (Garay)
contract, will not comply with its terms in good faith un¬
til they shall receive a guarantee of protection from this
government.
This letter was written after Mexico had desired to
55
know From Mr. Clifford whether the United States would
treat with Mexico for right of way across the isthmus of
Tehuantepee "on terms somewhat .similar to those which
have been granted to the United States by the republic of
New Granada."—See Ex. Doc. No. 97, p. 6.
Mr. Webster does not hesitate to state in his letter to
Mr. Leteher of Januarry 31st, 1852, that "it is contended
by us that the treaty whieh has been ratified by this go¬
vernment was intended to proteet the interests of the hol¬
ders of the Garay grant."—Ex. Doc. No. 97, p 111.
It must be borne in mind that by the Garay grant the
holders claimed ten leagues in width of land in fee simple
on each side of the proposed line of communication and
some hundred and fifty for colonization—that is, a belt of
country about three hundred miles in width, through the
heart of Mexico, extending from ocean to ocean, a distance
of some one hundred and seventy or eighty miles ; and
this at once would substantially dismember the Mexican
republic.
The hope of seizing upon such an immense and splendid
domain was sufficient to excite the avarice and active cu¬
pidity of many, and to rally a strong influenoe to bear on
the subject. Mexico had become thoroughly unitedjin hos¬
tility to any attempt on the part of this government to en¬
force by threat so unjust a pretension, and her Congress
formally revoked the grant. The effect of this was at
once perceived at Washington, and it left the administra¬
tion either of the three courses to pursue, viz; to recom¬
mend a declaration of war by Congress, to turn the sub¬
ject and the claimants over to the courts of Mexico, where
they should fitly be, or to renew negotiations. Accorping-
ly Mr. Webster adopted the latter course, ("quibbles quick-
and paper bullets of the brain,") finding he could make no
question of justifiable interference in this private affair
without the interposition of a treaty. Injiis letter to Mr.
Letcher of Jauuary 31 1852, he says that the Garay
"grant has been formally annulled by the Mexican Con¬
gress. Although an approval of the treaty by that body
56'
and its ratification by President Arista would be tanta¬
mount to a repeal of the act revoking the grant, and wouldl
reinstate it in all its former vigor," (but cautions Mr. Letch¬
er at the same time that) "the inference is a fair one, that
if this impression should be entertained by Congress it
would not approve the treaty." And that the affair might
be managed in that way, he desires Mr. Letcher to inform
the Mexican government that the offer of fifteen million»
of dollars for a right of way should " not in any event be
renewed." This diplomacy signally failed.
Mr. Fillmore, perceiving the efforts made to entangle
his administration with the Garay speculation, and that all
the remonstrances and threats against Mexico served only
to awaken hostility in that quarter, while they met with
no favor from the intelligent people of the United States,
felt it due to himself and to his administration to press
further the Garay grant upon the consideration of Mexico..
And this he published to Mexico and the world in a letter
to President Arista, under his own signature, in which he-
says that—
"Independently of the right which some of our citizens,
claim under the Garay grant to open this communication,
it would be a matter of great indifference to the citizens
of this republic whether such communication were construc¬
ted by the subjects of Great Britain, the citizens of Mex¬
ico, or those of any other country. All that we ask is,
that the best and safest mode of intercommunication shall
be established of which the nature of the country will ad¬
mit, and that it will be open and free to the commerce of"
the whole world, without any exclusive right in any na¬
tion, and under the sole jurisdiction of Mexico herself."
This letter Mr. Fillmore transmitted to Congress July
6, 1852—(See Ex. Hoc. No.. 67, 1st session of 32d Con¬
gress, pp. 157, 158)v
Here, then, is. a direct and positive disclaimer of any
commitment of the Garay grant, but the highest execu¬
tive repudiation of any such connexion or motive. The-
President cares nothing about Garay and his grant, but
wants a right of way opened with the consent of Mexico*
by any persons of any nation.
57
This puts to rest all conjectures in relation to the views
of the Executive, and of itself covers the action of the
American minister at Mexico, Judge Conkling, whom Mr.
Fillmore appointed to carry into effect, as far as he could,
these just and enlightened views.
If Garay, and those under him, shrink from the courts
of justice, upon what ground can they expect the United
States to make their private speculation a question of na¬
tional quarrel or war ? Can any speculator buy a deba¬
ted claim without the knowledge of the government, and
then claim a right to make the United States a high she¬
riff or marshall to summon the public boss to conquer by
force of arms their claim? What did Hargous give for
a lapsed claim? What docs he expect to make by it?
Why did not England try and enforce it when Manning
and Mackintosh held it? Did Hargous advise with the
government before he purchased it? These are questions
which neither the Executive nor the Congress of the Uni¬
ted States should now be concerned with. It is not an
executive or legislative question, but purely a judicial one,
of which the judiciary of Mexico alone has cognizance.
The property is in Mexico, and the contract was made in
Mexico, nor could Garay transfer any rights but those he
held. And the parties have been invited before the courts
to test their claim.
Jose F Ramirez, Minister of the Interior and Foreign
Relations, in his pamphlet or memorial, at page 33, de¬
clares that—
"The field is open. The affair remains in all its com¬
pleteness. Government has not shrunk, nor will it shrink,
from a judicial investigation. Garay or those who con¬
sider themselves as having succeeded him in his rights,
can appeal to the tribunals of the country and plead their
own cause, and the government will likewise appear there
to sustain its own rights."
And again, at page 44, he adds :
She (Mexico) had declared a privilege which had been
made the subject of improper traffic to have become ex¬
tinct, leaving the complainants entirely at liberty to obtain
justice according to the law of the country.''
58
Bnt it appears from the documents that on the 23d of
November, 1851, the New Orleans company gave to D.
Luis E. Hargous, who resides in Mexico, a power of at¬
torney to take proper legal steps, whether as claimants
or defendants to mantain their Garay grant. (See Mex¬
ican minister's review, p. 99).
Mexico honorably allows herself to be sued. Para¬
graph 2d, article 137th, section 3d of the Mexican fed¬
eral constitution is as follows :
"To terminate the dispute which may arise on contracts
or negotiations made by the supreme government or its
agents."
The whole of section 3d of this part of the constitution
treats of the attributes or powers of the Supreme Court
of Justice.
A few cases may be cited where the Supreme Coart of
Mexico obtained jurisdiction.
De Luchet brought suit against the Mexican govern¬
ment, resisting to prevent certain funds that he held to be
changed into the twenty-six per cents. He gained his
suit. He was a French subject.
Serment Fort & Co. brought suit because the govern¬
ment did not pay them the duties on the conductas, as had
been agreed upon. They gained their suit. They were
French subjects.
Martinez Del Rio, Brothers (British subjects,) brought
suit because the government appropriated to itself a cer¬
tain portion of the tocacco rent set apart for them. They
gained their suit.
Capt. William R. Glover (a citizen of the United States
brought suit against the Mexican Government for seizing
a large amount of money belonging to him. He gained
his suit, and Mexico paid the money.
The question involved is a disputed land claim or title.
The property is in Mexico, and the contract was made in
Mexico, and any assignment made of that contract must
depend on the laws of the country where the property is
situated. This rule of law is universal in all Christian
59
and civilized nations, and it is the only rule that the
courts of the United States recognize. An ancient and
distinguished commentator and jurist lays down the fol¬
lowing principles :
"That real property is considered not as altogether
upon the disposition of every master or owner of the fam¬
ily, but the commonwealth affixes certain right as result¬
ing from real property and is interested in its disposal ;
nor could a nation, without great inconvenience, suffer its
real property to be conveyed with these incident rights
by the laws of another country and contrary to its own."—
Huberus, 2 vol. B. 1, Tit. 3, p. 26.
Judge Story, in his Commentaries on the Conflict of
Laws, at pp. 301, 302, after quoting Lord Robertson and
Lord Rannatyne, who laid down the doctrine as estab¬
lished in England and Scotland, that the law of the place,
or the nation, regulates contracts in relation to real es¬
tate, says that " it has received an equivocal sanction in
America, where it has been broadly declared to be a well
settled rule that any title or interest in land or real estate can
only be acquired or held agreeably to the law of the place
where the same is situated," quoting numerous decisions.
"The law of a foreign conntry where a contract is
made will be regarded by the tribunals of another coun¬
try as to the obligation of the contract, aud as to its dis¬
charge."—Elliot's American Diplomatic Code, No. 336,
quoting numerous decisions and authorities.
"The title to land can be acquired and lost only in the
manner prescribed by the law of the place where such land
is situated."—Elliot's A. D. C, quoting authorities.
The Supreme Court of the United States has declared
that "it is an unquestionable principle of general law that
the title to and the disposition of real property must be
exclusively subject to the law of the country where it is situa¬
ted, This was decided in the case of the United States vs.
Crosby, 17 Cranch."—9th Wheaton, 565.
Such is the law in the Uuited States, in Mexico, and
in Europe, as to real estate, and in most of cases as to
personal.
60
When the States of this Union (or some of them) did
not pay interest due on their debts to English subjects,
and some of the States repudiated the debts, (and States,
too, that could not be sued at law,) and those English
bondholders appealed to their government to interpose
its power in their behalf, that government informed those
subjects that, as he entered into the speculation without
the consent or knowledge of their government, they could
not expect it to interpose.
And since the organization of this government, with
its numerous boards of commissioners to settle claims
against foreign nations, never, in a single case, has a
claim been for a moment considered, unless it was one
which originated in some legitimate transaction of the
American claimant, and with the government against
whom he held the claim.
But, in relation to personal property, there are many
exceptions, according to the circumstances of the case.
The subject is well discussed and just rules and distinc¬
tions laid down in a debate in the English House of Com¬
mons in 1847, when the English subjects who held Span¬
ish bonds desired their government to interpose to en¬
force payment.
Yiscount Palmerston said in Parliament, that—
" If the principle were to be established as a guide for
the practice of British subjects, that the payment of such
loans should be enforced by the arms of England, it would
place the British nation in the situation of being always
liable to be involved in serious disputes with foreign gov¬
ernments, upon matters with regard to which the British
government of the day might have had no opportunity of
being cousulted, or of giving an opinion one way or the
other."
k, He says, when asked by capitalists, that—
"If we (they) are disposed to deal with foreign States
will you compel that State to make good its engagement
should it fail in doing so? That question has been put
more than once to the government of which I am a mem¬
ber, and my reply always was : 'If you choose to advance
your money, do it at your own risk ; but you are not to
61
expect that if the government to which you lend your
money fail in its engagements, that England, as a country,
would interpose to obtain for you redress.' " * * *
* "That Lord castlereagh, in announcing the condi¬
tions of the treaty of 1814, distinctly made it known that
compensation had been exacted ; but Lord Castlereagh
warned the public that, if in future, without the sanction
of the government, they invested the money in the French
funds, and confiscation followed, they must not look for
similar interposition on the part of Great Brittain."—Par¬
liamentary Debates, 5th vol of series, 1847, pp. 1, 299,
1305.
The foregoing sufficiently demonstrates, without addi¬
tional comments, that the only tribunal before which
Garay and company should appear is the courts of Mex¬
ico. Nor is the case altered by a curious schedule of dam¬
ages which Hargous and company have filed with the re¬
cords of the government, amounting to $5,283,000, (as set
forth in Doc. 97, p. 150). These items seem to lose sight
of the Patriotic effort to aid the government in effecting
a right of way, and superinduce the belief that the par¬
ties would be willing to have the right of way across the
Isthmus hermetrically closed, if they could realize some
$5,000 000.
It may be well here to notice the resolutions offered in
the Senate of the United States by a distinguished senator
from Virginia, (Mr. Mason). For two sessions they were
before that body, and were never voted upon. They
died with the last session of Congress ; and had they been
voted upon after the Mexican government entered into
contract with Mr. Sloo and company to construct a road
across the Isthmus, it is believed that they would have re¬
ceived a very meagre vote ; for the main object (a right
of way) had been accomplished.
It is true that those resolutions were not very perspica¬
cious, and they contained some self-evident propositions,
as, for instance, "that the government of the United States
stands committed to all of its citizens to protect them in
their rights, abroad as well as at home, within the sphere
of its jurisdiction."
62
" Rights within the sphere of its jurisdiction !" It is
surely not within the jurisdiction of the United States
government to usurp the judicial attributes and powers of
the Supreme Court of a neighboring and independent na¬
tion. Hargous and company have purchased nothing
more than a right to a law-suit before the courts of Mex¬
ico. Rights are to be settled by judicial inquiry and de¬
cision.
In cases before the Supreme Court of the United States,
when rights were broadly assumed, Chief Justice Mar¬
shall administered a just rebuke in these words.
" These abstract principles are to be determined ; for
he who demands decision without permiting enquiry
affirms that the decision he asks does not depend on en¬
quiry. "-6 Wheaton, p. 377.
An examination into the correspondence of the State
Department would likely show that the Secretary of State
has on several occasions informed the Mexican minister
that claims which he pressed must first pass the review of
the tribunals of the United States before he could fitly
interpose.
When President Fillmore abandoned Garay and com¬
pany, in pursuit of a high patriotic duty of securing for his
country and the commerce of the world a public high¬
way, the Mexican government, in proof its earnest desire
to grant a right of way, advertized for proposals to con¬
struct a road. There was no protest from the authorities
of the United States, for it was in accordance with the
wishes of the whole people.
The Mexican government entered into contract with a
citizen of the United States, and his associates, giving
this strong earnest of its ardent desire to cultivate the
most friendly relations, and by a separate contract ex¬
pressly allowing Garay and his associates their remedies
before the courts of Mexico for the adjudication of their
rights.
And, as a yet higher proof of the friendly feelings of
Mexico, she invited the government of the United States
63
to enter into a treaty of joint protection of this great
highway. Do not the mutual interests of the two nations
require this ? Does not the vast commerce of this great
nation require that the proposals should be met with
friendly cordiality, or must Mexico look for friends else¬
where ?
It may be well to state, in conclusion, that, by the trea¬
ty of Hidalgo, 2d February, 1848, it was agreed, by the
6th article of the treaty, that if the two governments should
think it advisable, for their mutual advantage, to make a
canal or railroad along the margin of the Gila river, it
should be constructed. And as now the general senti¬
ments of the people of the United States are anxious that
one or more railroads should extend through their own
Country to the Pacific to California and Oregon, a states¬
man cannot avoid to perceive that no means can be so
effectual to secure the construction of not one, but of three
roads as the prompt completion of the Tehauntepec rail¬
road; by that means it will throw a vast population into
California and Oregon, who will quickly settle back from
the Pacific to the gorges of the Rocky mountains, to meet
and aid to construct those several railroads. And, in¬
deed, one railroad aids the construction and profit of an¬
other, as one city, one farmer, one mechanic, one nation
benefits another ; for the age of monopolies belong to the
dark ages, not to the age of the 19th century,
I will close this already too long article with a para¬
graph from the writings of Wm. Davis Robertson upon
Mexico, published in Philadelphia in 1820. In discussing
the various transit routes across the country, he says :—
" Were we to consult the present and future interests
of Mexico, and of the republic of the United States, we
should say that the Mexican Isthmus, or, as it is more prop¬
erly designated, the Isthmus of Tehuantepec, is the section
of all others on the American continent where the com¬
munication between the Pacific and Atlantic Oceans should
be made. But, as we are desirous of seeing the blessings
of commerce extensively diffused for the benefit of the
human race generally, and not of any nation in particular,
64
we should rejoice to see the communication between the
two seas simultaneously opened at every place where it is
practicable, whether by land or water, or by the latter
solely, thereby^excitinç emulation and widening the range
of commercial enterprise. We do not advocate a system
of aggrandisement which seeks to raise itself by the op¬
pression and ruin of other nations, nor a system of restric¬
tions at variance with the laws of nature and the happi¬
ness of mankind. We wish to see the two great Oceans
of our globe brought nearer to each other by canals and
highroads, at such places as the God of Nature has evi¬
dently destined for channels of communication; and that
they have been for ages under the anti-social principles of
the Spanish government."
CONCLUSION.
We here present the arguments in brief, of men learned
in the law upon the rights claimed for opening the Te-
hauntepec road. The former from the pen of J. P. Ben¬
jamin, Esq., Chairman of the New Orleans company, based
upon the grant to " Garay," the latter or " Sloo contract"
from W. Cost Johnson Esq.
It will be perceived that the grant to Garay was subject
to certain conditions and restrictions which were not
complied with, or at least not in time to relieve it from
the embarrasments which subsequently ensued. Had
Garay's title been perfect, I apprehend there would have
been little difficulty in organizing a company and proceed¬
ing immediately with the work, without hawking and
transfcring it, for a period of ten or fifteen years. I leave
the question however with the judicary of Mexico, where
it is said to belong, and to the verdict of the reader who
will pass upon it as he may deem just. The untiring
energy of A. G. Sloo warants the belief that with the
power vested in him by the Mexican Government, he
will commence the work, and push it to completion at no
distant day ; a" consumation devoutly to be wished" should
the private schemes prevail for building the Pacific road.
My limits will not admit, nor indeed does it require a
G5
lengthy argument to show its absolute necessity, for it will
be seen at a glance that it will prove a perfect bar to the
enormous exactions which any private Railroad Company
would impose upon the people in all coming time. The
same hand which has overthrown the hydra of the Career
and Whitney schemes, is now turned to grapple with a
proposition more monstrous if possible than either ; and
what has been said of the two former, will aptly apply to
the New York charter. $100,000,000 of dollars is spoken
of by members of the company with the flippancy of a six¬
penny transaction, and indeed, of so little consequence is
money subscriptions to the stock to secure the "game," that
one of the directors has already subscribed Ten millions
of dollars!! And, by the same rule of responsibility, the
Pacific Railroad stock list is to be filled.
Where then do they propose to obtain means to ensure
its construction, in the face of their denial of asking aid
from the Government? Rut suppose the company able of
itself, to complete the work; still there are many and insur¬
mountable reasons why it should be a national underta¬
king, and not left at the mercy of a band of speculators,
whose narrow objects would be private gain. It should
be national, because its objects and purposes are national;
and because its accomplishments will advance the glory as
well as ensure the safety of our country and beneficially
affect the interests of all its citizens.
Because being the high road for all nations, its trans¬
action will have an important bearing upon our foreign
relations, and its regulations will consequently be gov¬
ernmental in their nature and Policy.
Because the objects of a Democracy, while it secures
to enterprize and talent their rewards, it is to equalize
the benefits of heaven to all, and the act which would
avowedly confer special facilities for the amassment of en¬
ormous wealth on any body of men is in derogation of its
own comprehensive scheme.
It s'iould be national, because any private scheme which
did not contemplate its termini at St. Louis, or near that
66
equitable latitude, would be contested until the obstacle
was removed by the providence of God ; and thus the
work would be postponed indefinitely.
Having satisfied ourselves of its necessity, its practica¬
bility and constitutionality, in a national point of view, I
may be permitted to make humble mention of those who
have early labored to bring the subject of uniting the two
Oceans by means of a Railroad to the favorable attention of
the American people. Whatever differences of opinion or
of motive may have actuated them the names of Carver,
Pluinbe, Wilkes, Whitney, Loughborough, and I hope
without indecorum I may add of Hall, will continue to be
recognized as the pioneers of the cntcrprize, and however
much the ultimate plan of the work may vary from their
views, will be entitled to the enduring credit of having
opened this path of our Republic's future greatness, to the
American mind. It ill becomes those who have profited
by their labors to lose sight of their merits, and it may
be discovered by the gigantic speculators who will soon
begin to manipulate the pockets of the government, that
it is even a greater act of indiscretion to attempt to pass
by those pioneers without acknowledgement, than to re¬
present a hundred millions of dollars without means, or
to create that amount of stock by individual subscriptions.
Nor, will the hero of " six Roman lustrums," find the un¬
acknowledged property of others as available for the fur¬
therance of his unlimited ambitious longings as his re¬
cent movements would seem to indicate. And lest there
might be an error in this assumption, I shall be permitted
to indulge in the recital of facts to sustain my prediction.
The history of Col. Benton's connection with the Pacific
Railroad projects we will date in 1845, when Whitney's Pa¬
cific Railroad was under consideration in the United States
Senate. Col. Benton opposed it, because any Railroad to
the Pacific was in his estimation impracticable through
such immense icy and rocky barriers which could not be
tunnelled.
And let it. not be forgotten that he at that time stated
67
that the American line of communication to the trade and
wealth of the East, was by the Missouri and Columbia ri¬
vers. In the following year (1846), while discussing the
Oregon question, he throttled General Cass with one
hand, and with the other pointed to Oregon, and again re¬
iterated what he the year before stated, that that was the
only line,—".God had so marked it, and man could not
change it." In 1848 after a Pacific Railroad had enlisted
public attention through the untiring efforts of the deserv¬
ing few heretofore mentioned, who had spoken and written
it into favorable notice, he introduced a bill into the Uni¬
ted States Senate for the construction of that very Pacific
Railroad which lie had previously declared to be imprac¬
ticable. Close upon the heels of this manœuver, through
the zeal and energy of John Loughborough, Esq., and
others, a Pacific Railroad convention was held in St. Louis,
where Col. Benton appeared, and proposed a plan, which
was superceded in all its essential parts, by that proposed
by Mr. Loughborough. Had he been really sincere in
his aparant zeal for a Pacific road, why did he advocate
and vote for an appropriation out of the national treasury
of five millions of dollars to build steamships ? and why
did he immediately thereafter denounce the same as a
"plunder interest," without first looking into a mirror for
its paternity ? But we shall be relieved of our surprise
at this, when we consider his former votes on interven¬
tion. In 1828 under Mr. Adam's administration he voted
against sending a messenger to the Congress of Panama,
a messenger who would be empowered to enter into no
treaty stipulations, or to entangle us in any alliances.-—-
lie was opposed to intervention then.
In 1847 lie voted for the treaty of New Granada, by
which we guaranteed the sovereignty and independence
of that Government. Then he was in favor of intervention;
and as late as 1852 we find him at Hillsborough, Missouri,
prounouncing vehemently against intervention ! I am re¬
luctant to spread upon the record other inconsistencies
equally glaring, and will therefore in charity concede,
G8
that little less could be expected of one whose dogmatic
nature is better adapted to rule under an absolute mon¬
archy, than to represent a free and independent constitu¬
ency. That he is a neophyte among the advocates of a
Pacific Railroad, and a hindrance to the early commence¬
ment of that great work, is conceded by those who under¬
stand the primary objects he has in view. I will therefore
leave the gallant Colonel to battle his way through the
several factions which surround him, to his old quarters
in the United States Senate, in the hope, that he will event¬
ually become one of the national and constitutional cham¬
pions of ar. entcrprizc of greater promise than has ever be¬
fore engaged the attention of the human family : and
one, which will secure to us, and to our posterity such a
preponderance of maritime power, untold wealth and chris¬
tian influence, as has never been enjoyed by any nation or
people since the dawn of civilization.
All of which, is humbly dedicated to the lovers of our
Great Charter.—Equal Rights.
Wm. M. HALL.
Rail-Road Head-Quarters, J
corner Broadway and Dey st. >
New-York, September, 1853. )
GREAT RAILROAD HEAD QUARTERS,
For copies, address the author, at the office of the
Michigan Southern and Northern Indiana Bailroad Company,
corner of Broadway and Dey Street, New York.
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