Mr. Abbott to Mr.
Blaine.
[Extract.]
Legation of
the United States,
Bogota, August 22, 1890.
(Received August 25.)
No. 120.]Sir: I have to call your attention to the present
situation of the question as to the interpretation of section 10 of article
III of the consular convention of 1850.
The complaint of Consul Vifquain reached this legation about the 1st of
December last. I forwarded the same, with comments, to the Department in my
No. 48 of December 12 last and asked instructions. As these had not arrived
in April, I took the action described in my No. 77 of April 24 last.
At that time it was plainly and particularly agreed between the minister and
myself that the case should remain in statu quo until
about the middle of August, when, it was hoped, my instructions would have
arrived and that the press of business caused by the assembling of Congress
would have been somewhat lessened. In the meantime nothing was to be done to
render the situation more difficult than it then was. What the true
situation was neither of us knew, as neither expressed the slightest opinion
in the matter.
On my return from my leave of absence, and before I took charge of the
legation, I informed the minister that my instructions had arrived, and that
I should be ready to discuss the matter with him at the time agreed upon, or
before, if he cared to do so; but I did not communicate the nature of the
instructions.
On the 18th of July the minister called up the matter himself and said the
business of the Congress which was to assemble on the 20th so occupied his
attention that he would prefer to leave the discussion until the time
originally fixed, when, he had no doubt, an understanding would be easily
reached.
Congress assembled on the 20th of July, and the minister’s biennial report
was theoretically issued on that day; but, in reality, it was distributed
and became available on the 4th of August, and not before.
The report contained extended comments upon the Smith case, a copy and
translation of which I inclose.
I regarded this action as a distinct violation of our agreement made in April
and recognized by the minister as binding upon us as late as the 18th of
July, when the above extract must have been in type. It, of course,
increased the difficulties of the situation immensely, as his position was
diametrically opposed to that contained in my instructions and was publicly
avowed.
[Page 263]
On the 18th instant I introduced the Smith case and informed the minister of
the purport of my instructions, and that I desired to proceed, in the first
instance, to an amicable verbal discussion thereof, in the hope that an
agreement might be thus more easily reached than by a long written
controversy, and that after an agreement the mere crossing of notes in
accordance therewith would render the matter clear for the future. The
minister seemed to see at once the difficulty which the premature
publication of his views might bring him and wished for time to talk with
the President.
I acceded to his desire for time to consult with the President and expressed
the hope that he would not come to any definite determination to maintain
the views expressed in his report until after I had had an opportunity to
express the views of my Government. The interview was most friendly and
courteous, and the situation was understood and appreciated.
Within 36 hours after I left the foreign office, or, to be exact, at 2:30
o’clock in the afternoon of the 19th instant, I received an official note
from the minister requesting me to forward to the United States for service
a process of a local court assuming to settle the estate of one Alexander
Henry, an American citizen who died in Colombia several years since.
This note was dated August 14, but was not delivered until the 19th, as above
stated.
I felt that a compliance with that request would be a direct acknowledgment
of the right of that court to claim jurisdiction in the case, which I am not
prepared to admit.
When I further considered that the Henry case had been cited by the minister
in his published report as an instance of the acquiescence of this legation
in the interpretation of article iii, section 10,
of the consular convention there maintained, I felt that compliance would
also involve complete assent to the principle of interpretation that my
instructions require me to deny.
I also felt that the process had been sent to me with that end in view.
I therefore returned the process to the minister with a note. A copy and
translation of the minister’s note and a copy of my reply are herewith
inclosed.
As soon as may be I shall have a conversation with the minister, and, if
there seems to be no hope of his acquiescence in your views as to the
interpretation of the convention, I shall take the usual steps in matters of
this kind.
Upon the decision of this case depends the rights of British consuls, as well
as those of our own. It is important that it be settled as soon as possible,
and I shall push the matter with all convenient speed.
I make a separate report upon the Henry case, brought so prominently to my
notice in the minister’s report and in his note of August 14.
I am, etc.,
[Inclosure 1 in No.
120.—Translation.]
Extract from the biennial report of the minister of
foreign affairs.
A citizen of the United States named Susannah Smith having died in Colon
intestate and leaving property in Colombian territory, the circuit judge
of Colon, the domicile of the deceased, has taken jurisdiction of the
settlement of her estate and
[Page 264]
has proceeded therein according to law. At the same time the
consul-general of the United States has been of opinion that he had a
right to take possession of the deceased’s property, make an inventory
of it, and even sell it, taking as his authority the letter of section
10 of article 3 of the consular convention now in force between the
Republic and American Union.
The said reference to the consular convention of 1850 reads:
“Article 3. The consuls admitted in either
Republic may exercise in their respective districts the following
functions:
* * * “10. They may take possession, make inventories, appoint appraisers
to estimate the value of articles, and proceed to the sale of the
movable property of individuals of their nation who may die in the
country where the consul resides without leaving executors appointed by
their will, or heirs at law. In all such proceedings the consul shall
act in conjunction with two merchants chosen by himself for drawing up
the said papers, for delivering the property or the produce of its sale,
observing the laws of his country and the orders which he may receive
from his own government; but consuls shall not discharge these functions
in those states whose peculiar legislation may not allow it.” * * *
The Government can not recognize as pertaining to the consuls of the
United States of America the faculty claimed by the consul-general of
Colon, because for said recognition there should exist two conditions:
first, that the property left by Mrs. Smith is personal; and, second,
that the local laws do not forbid the exercise of the faculty
claimed.
Neither of these conditions is present in the “Smith” case.
Not the first, because the property consists of wooden houses, built, it
is true, upon land of other owners. But they can not, for that reason,
be denominated chattels. Although it may be easy to move the materials
and make with them new houses on other land, the distinction between
real and personal property can not be derived from that fact. In such
case it would follow that, as the machinery for moving houses becomes
more and more perfected, the latter would gradually lose the character
of real estate, whatever might be the manner of attachment to the soil
(por arraigades que fuesen).
And, although the civil code of the Republic includes in this class (real
estate) only things which are permanently attached to the soil, such
provision does not signify the same thing as perpetually, a condition
which could be said of no building.
On the other hand, the case has been decided by commentators of note,
among whom may be cited Dalloz. “Buildings,” says this jurist,
“constructed upon land of another are real estate, not only when the
proprietor has the right or the duty to appropriate them to his own use
by virtue of law or agreement at the expiration of the enjoyment of a
third person, but also even when the latter may have expressly reserved
the right to destroy them or carry away the materials.”
Neither is there present the second condition, to wit, that local
legislation permits the consuls to exercise the functions claimed by the
consul-general of the United States of America in Colon.
Said condition is definite, since the convention provides that such
functions shall not be discharged, except where the states may permit
it. The phrase “los Estados” (“those states”) does not refer solely to
the American Union to the exclusion of Colombia, since there is no
reason to suppose that the latter would agree to such a one-sided
concession exclusively advantageous to the former.
Whatever modifications the public law of Colombia may have experienced as
to the centralized or federative form of the Republic, the power to
regulate everything relating to the matter under discussion has always
been maintained in its legislation, whether national or state (una ó varia).
Even supposing that at the time when the consular convention with the
United. States of America was signed the exercise of the functions now
claimed by the consul general of Colon might have been permitted in
Colombia, the subsequent modifications of the laws would suffice to do
away with such powers.
Articles 570 and 571 of the Colombian civil code, 1238 and 1241 of the
judicial code, and 162 of law 147 of 1888 expressly determine the
standard by which the courts must be guided in the settlement of every
intestate estate of this kind, as well as the powers which pertain to
foreign consuls in the matter, in a sense entirely at variance with that
claimed by the aforesaid agent of the United States of America.
Moreover, the honorable legation of the United States of America, in
exactly similar cases, e. g., the intestate
estate of Alexander Henry, over which the local courts of Cundinamarca
have assumed jurisdiction, has not claimed to exercise, either by itself
or its consular agents, any other powers than those guarantied and
permitted by our law.
The law of the Republic as to this class of estates of deceased persons
is in entire harmony with universal practice and with the attributes of
consuls in civilized countries recognized by international law. What
appear to demand certain reforms in this so important matter are the
regulations for the delivery of property to the
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legal representatives, which, in the opinion of
the undersigned, is too much prolonged. So that it happens that the
delivery of the property of foreigners sometimes is subject to obstacles
and great delay, to the detriment of the property, especially when the
latter is in remote situation and deleterious climate.
Among the reforms which I shall have the honor to recommend to you at the
conclusion of this report will be found those relative to this
point.
[Inclosure 2 in No.
120.—Translation.]
Mr. Roldán to Mr.
Abbott.
Ministry of Foreign Affairs,
Bogota, October 14,
1890.
Sir: The judge of the circuit of Tequendama, in
the department of Cundinamarca, in whose court are now taking place the
proceedings relative to the settlement of the estate of Alexander Henry,
a citizen of the United States, has resolved to cite his widow and
children, who live in the city of Wheeling, State of West Virginia; and,
in the letters rogatory which I have the honor to send herewith, the
said judge requests the chief justice of the Ohio county court to have
the kindness to cause to be duly served the said summons.
Owing to the circumstance of there being ho Colombian agent residing in
Ohio through whose medium the letters rogatory could be sent, I am
constrained to beg of Your Excellency to be good enough to forward it to
its destination; in doing which not only would the dangers of
miscarrying the document be avoided, but time would be saved in the
settlement of the estate.
Anticipating to Your Excellency the expression of my gratitude for your
good advice in the matter, I am pleased to renew, etc.
[Inclosure 3 in No. 120.]
Mr. Abbott to Mr.
Roldán.
Legation of the United States,
Bogota, August 22,
1890.
Sir: I have the honor to acknowledge the
receipt, upon the afternoon of the 19th instant, of Your Excellency’s
polite note of the 14th instant, calling my attention to the fact that
the circuit court of Tequendama has assumed jurisdiction in the
settlement of the estate of one Alexander Henry, a citizen of the United
States, late deceased in Colombia, and requesting me to forward to the
United States, for service upon the widow and children of the deceased,
a certain process of the said court relating to the case.
It is with extreme regret that I find myself unable to comply with Your
Excellency’s request, for the reason that such compliance would involve
the active aid of this legation in the service of a process of a
Colombian court, whose right to take jurisdiction in the premises I am
not at this moment prepared to admit.
But the principal reason which inclines me to my present decision is
found in the fact that the Henry case was cited in Your Excellency’s
report to Congress as an instance of the acquiescence of this legation
in the interpretation there maintained of article 3, section 10, of the
consular convention.
Under such circumstances, a compliance with Your Excellency’s request
would be a direct admission of the correctness of such
interpretation.
In view of the fact that we have agreed to proceed to an early and
amicable interchange of views as to the true interpretation of the said
convention, I feel that nothing ought to be done to render the situation
more difficult or to prejudice the position of either Government.
I am therefore constrained to return the process without further
action.
I take this occasion, etc.,
