Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 5, 1898

Señor Rengifo to Mr. Sherman.

Legation of Colombia,
Washington, May 1, 1897.

Sir: The undersigned, Julio Rengifo, chargé d’affaires ad interim of the Republic of Colombia, has the honor to inform the honorable the Secretary of State of the United States that he is instructed by his Government to announce that it has expressly approved and adopted the protest which the undersigned had the honor to make on behalf of his Government on the 3d of March, 1897, in a communication of that date addressed to and acknowledged by the Hon. Richard Olney, Secretary of State of the United States, against the fifth paragraph or article of the award of the President of the United States, as arbitrator under the protocol of August 18, 1894, between the Government of the Kingdom of Italy and the Government of the Republic of Colombia.

The undersigned is, however, expressly instructed to say that the approval and adoption of this protest by the Government of the Republic of Colombia does not in anywise imply the ignoring by it of the award in other respects, and while he is instructed to ask the rectification in toto of said fifth article, he is also instructed to announce that the £10,000 sterling directed to be paid within sixty days from the 2d day of March, 1897, the date of the award, will be paid on condition that the right to seek this rectification is admitted by the Government of Italy.

The undersigned is further instructed to inform the Government of the United States that the minister of Colombia at Rome has been instructed to invite the Government of Italy to join in asking the rectification or reconsideration of article 5 of the award.

The disposition of the Italian Government as to the subject-matter of the fifth article is fairly indicated by certain documents which the Italian Government itself thought proper to lay before the President of the United States in this arbitration, and for that reason alone the undersigned permits himself to invite attention to these documents, which consist of an exchange of notes between the British ambassador at Rome and the Italian minister of foreign affairs, found on pages 156 and 157 of the Italian Green Book. A copy of the letter of the British ambassador and a translation of the reply of the Italian minister of foreign affairs are appended to this note for the convenience of the honorable Secretary of State.

The undersigned desires expressly to reserve the right to lay before the Secretary of State of the United States a more extended statement of the views of his Government, when he shall receive the same by mail, which at this season of the year is subject to considerable delays, but he thinks it his duty now to state that the position of the Republic of Colombia is, broadly, that the declared purpose of the protocol of August 18, 1894, was to put an end to the subjects of disagreement as between the two Governments and incidentally to make a just disposition of the claims of Signor E. Cerruti.

The President of the United States undoubtedly had the right to determine all subjects of disagreement as between the two Governments, and furthermore to make a just disposition of the claims; but he could only accomplish the last purpose by proceeding “to determine and declare the amount of indemnity, if any, which the claimant, Signor E. Cerruti, be entitled to receive through diplomatic action.”

To use the language of Vattell, the protocol did—

precisely specify the subjects in dispute, the restrictive and opposite pretensions of the parties, the demands of one and the objections of the other; these constitute the whole of what is submitted to the decision of the arbitrators, and it is upon these points alone that the parties promise to abide by their judgment.

The fifth-article of the award is, however, as it seems to the Government of Colombia, outside of the submission of the protocol. In principle it is as clearly beyond the scope, purpose, and authority of the protocol, both as to the questions decided and the manner of disposing of them, as the extreme case supposed by Vattel, when he asks:

Suppose a board of arbitrators should, by way of reparation for some offense, condemn a sovereign state to become subject to the state she has offended. Will any man of sense assert that she is bound to submit to such a decision?

With the information and reservations above set forth, the undersigned has now the honor solemnly and earnestly to renew, in the name and on behalf of the Government of the Republic of Colombia, and by its express order, the protest of March 3, 1897, against the fifth paragraph of the award of the President of the United States, dated March 2,1897, as arbitrator under the protocol of August 18, 1894, for the reason that the said fifth paragraph is invalid and outside of the submission of said protocol of August 18, 1894:

• First, because it does not determine and declare any amount of indemnity which the claimant, Signor Ernesto Cerruti, is entitled to receive from the Government of Colombia through diplomatic action.
• Second, because it does not put an end to any subject of disagreement between the two Governments.
• Third, because it is not a final disposition by the President of the United States of any claim or claims of Signor Ernesto Cerruti.
• Fourth, because said fifth paragraph imposes upon the Government of Colombia an uncertain liability, the amount of which is not determined or declared by the President of the United States as arbitrator.
• Fifth, because it provides a prolific source of disagreements growing out of the claims of Signor Ernesto Cerruti, to which disagreements the President of the United States was invited by both Governments, in the protocol of August 18, 1894, to put an end; and
• Sixth, because the said fifth paragraph is a delegation of the authority of the President to determine and declare the amounts of the indemnity due by Colombia to Signor Ernesto Cerruti, to others, in that it leaves to be ascertained by some other persons and tribunals, not named in the protocol nor specifically provided for in the award, at times and in modes undefined and unauthorized, the amounts and conditions of further liability of Colombia to Signor Ernesto Cerruti by reason of the claims submitted to the President.

I have, etc.,

Julio Rengifo.

[Inclosure.]

The Ambassador of Great Britain to the Minister of Foreign Affairs.

Rome, January 11, 1895.

Monsieur le Baron: I have been requested to approach your excellency on the subject of the claims of Signor Cerruti against the Columbian Government, and to state that it appears from a report addressed by M. Fenner, Her Majesty’s representative at Bogotá, that the protocol signed by your excellency and Monsieur Hurtado provides that the President of the United States shall be invited to give a final decision, which must be acted upon without any discussion or delay, as to which of the Cerruti claims are to be paid directly by the Colombian Government and which are to be referred to the Colombian courts.

The President is to state the exact amount to be paid at once of those claims, for which he holds the Colombian Government immediately responsible.

It seems probable that the claims thus assessed will be those for debts incurred by Signor Cerruti personally.

With regard to the claims against Cerruti & Co., it appears that the Italian Government have agreed to allow the arbitrator to decide whether the Colombian Government are directly liable, and in that case to assess the amount, or whether the assessment of the claims of the company should be left to the Colombian tribunals.

The Colombian Government, however, will not admit that the creditors of Signor Cerruti or of Cerruti & Co. have any claim against them, and it is therefore desirable that some arrangement should, if possible, be made to protect the interests of the creditors, especially in the event of delay consequent on reference to the tribunals, and to secure the proper application of the amount which may be recovered from the Colombian Government.

In the opinion of Her Majesty’s Government, the best means of attaining this object would be that the Italian Government should receive and distribute “pro rata” among the creditors of whatever nationality any sum which may be paid by the Colombian Government either in pursuance of the President’s award or as the result of proceedings in the courts, and I have been directed by the Earl of Kimberley to make this proposal to your excellency.

I avail myself, etc.,

Francis Clare Ford.

[Inclosure No. 2.]

The Minister of Foreign Affairs to the Ambassador of Great Britain.

Rome, January 28, 1895.

Mr. Ambassador: In your excellency’s letter of the 11th instant you make known to me the remarks which the Government of the Queen considers proper to present to that of S. S. M. the King with reference to protecting the rights which the creditors of Signor Cerruti may have in the eventuality of an indemnity being allowed in favor of our said countryman, either directly by the arbitrating judge or by the Colombian court to which the arbitrator may refer the liquidation.

The purpose of the Royal Government has been to secure to its citizen an equitable and definitive jurisdiction over international questions which concern him, and this object will be considered realized by the exercise of that jurisdiction—that is to say, by the arbitral award.

All that concerns the rights of the creditors of Cerruti with reference to his eventual indemnity lies within the sphere of municipal law, nor does the Government of the King possess the right or the authority to interfere (sostituirsi) with the ordinary competent jurisdiction in order to modify or regulate the relations which, based on civil obligations (in base ad obligazioni private), already exist between the creditors of Cerruti, or of the firm which bears his name, and Cerruti himself.

I avail myself, etc.,

Blanc.