Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 7, 1874

No. 45.
Mr. Partridge to Mr. Fish.

[Extract.]

United States Legation,
(Petropolis,) Rio de Janeiro , February 20, 1873. (Rec’d March 21.)

No. 97.]

Sir: I have the honor to acknowledge receipt of your No. 65 with inclosures, in relation to the estate of William T. Harris, who died at Bahia, January, 1852.

* * * * * * *

In connection with this case I beg to call the attention of the Department to the condition of estates (of American citizens dying here) under Brazilian administration, in pursuance of their claim of exclusive Jurisdiction, and notwithstanding the intervention of United States consuls, claiming under the eleventh article of the treaty of 1828.

That treaty made no express provision for administration by consuls. By the eleventh article, which the legation here (Mr. Wise, Mr. Tod, and Mr. Schenck) has contended was not abrogated by the notice (1841) to terminate other parts, (since that article does not relate to commerce or navigation,) the citizens of each party were allowed the right of succession, whether by testament or ab intestato and might take possession by themselves or others acting for them and dispose of the same, paying only such dues as the inhabitants of the country where the estate was should be subject to pay in like cases.

Under this article, Mr. Schenck, however, claimed the exclusive right of the consul as the proper representative to take possession and administer, and notified the foreign office here (10th January, 1852) that “the United States Government regarded the eleventh article as still in force, not being one of the parts relating to commerce and navigation, and that under it they would insist that the proper representative of any United States citizen dying in Brazil shall succeed, by testament or ab intestato, and shall take possession by themselves or agents, including as such their proper consuls, who, by regulations of the United States, are authorized to act for them, subject only to the conditions and limitations of said article.”

The consular convention, referred to in Article XXXII, was never negotiated, and the attempt to renew the treaty, with express power to consuls in such cases, by Mr. Tod, under Mr. Buchanan’s direction, failed.

Notwithstanding this, the juizes de defuntos have allowed and invited foreign consuls to be present at and take part in the collection of assets and nomination of a curator of such estates; and they have sometimes done this in case, also, of United States citizens, although the ordinance under which the judges acted provided tor so doing only in cases of citizens of those countries in which the same right was extended to Brazilian consuls to take possession and administer.

Such invitation was extended (under law of 1845, still in force and noticed further on) in this case of Harris to the United States consul at Bahia, Mr. John S. Gillmer, on the 24th January, 1852, as may be seen by the document relating to this case. (H. R. Ex. Doc. No. 70, 40th Cong., 3d sess., p. 3.) To this invitation Mr. Gillmer (who had already put his seals on the rooms containing the property) answered, that “he did not recognize the jurisdiction of the Brazilian authorities in the premises,” and made complaint to the president of the province, and in April to Mr. Schenck here, who informed him (February 24, 1852) that, under the eleventh article of the treaty he claimed exclusive right, &c., as above stated; and this, notwithstanding the Brazilian decree (No. 855) of the 8th November, 1851, regulating the rights and privileges of foreign consular agents. A copy of this decree is annexed to Mr. Sehenck’s No. 14, (November 29, 1851.) Its title is, “Decree regulating the privileges and attributes of foreign consular agents in the empire, and the mode of proceeding to be observed in the collection and administration of the estates of the citizens of their nations, when Brazilian consuls are allowed reciprocity in their countries.”

The Brazilian government, then, now claims, since there is no consular convention with the United States (as with those nations mentioned in my No. 65, all of which expire August 20, 1873) granting their consuls the right of administration, and since Brazilian consuls in the United States are not allowed to take possession of and administer the estate of Brazilian subjects dying there, which are administered by the State tribunals exclusively, that the estates of American citizens dying here are, in like manner, subject to administration of the regular Brazilian tribunals, (Juizo de Orphãos e Ausentes,) and their statement of the discussions with the United States Government here may be found in Pereira Pinto’s treatise on the “Treaties of Brazil,” &c., (sent to the Department with my No. 12,) and a translation of which is hereto annexed.

If administration of estates in Brazil in these cases (foreigners dying here) were guarded and secured in fact and practice as well as by legal provisions, and if distribution could be secured within a reasonable time, there would be no just cause of complaint. But it is notorious that in these cases (even where the widow and the children of such foreigners are here and ought to control the administration) the assets are consumed in the courts by expenses or withheld without distribution under pretext of want of proof of heirship; and often no account of them can be had. Their condition is set forth, in language that is hardly extravagant, in Mr. Wise’s No. 50. And since that time, on almost every occasion when an American citizen has died intestate here, leaving assets in Brazil, the same complaint—of refusal to admit the intervention of the consul, appointment of some stranger to the inheritance, but friend of the court, of delay or withholding of account, and of final evaporation of the property—has been made to this, legation. The latest case is of the jewels, &c., belonging to the late Mr. Gotts-chalk, and the estate of Mr. Block.

My predecessors have asked instructions from the Department as to its interpretation of the eleventh article; and, if it is still in force, as to the right under it of our consuls, as representatives, (others for them,) to collect, have possession, and administer. If the eleventh article is no longer in force, still, I think, our consuls may intervene, under the present Brazilian law, (1845,) not to take possession and administer, but to be present and take part in the collection of assets, and may compel an account. At least such is the legal provision here, independent of any treaty or consular convention. The difficulty arises in the attempt to secure a proper execution of this law. Consuls admit that they are notified of the death, invited to be present and take part; but declare that this is only a nominal compliance; that any objection of theirs is unheeded, and the judge names some familiar of his own to be curator and administrator of the assets, which are in many cases never heard of afterwards. As the matter now stands, from uncertainty as to the views of the Department as to the perpetuity and construction of Article XI; from the fact or exclusive jurisdiction asserted and exercised by Brazil; from what, notwithstanding very fair provisions of their law, is really done by their tribunals, delay, waste, and loss are inevitable to the estate of every American citizen dying intestate here.

Fortunately these are not numerous, and our cases are comparatively rare; but there are many French, Spanish, Italian, and Portuguese subjects here, and of the last, especially, an immense number come, remain, and die here. At present, and until 20th August next, the effects of such, under their consular conventions, are taken into possession and distributed by their consuls, exclusive of the Brazilian tribunals; and, if there be no renewal of these privileges, there must arise a condition of things, if these estates shall revert to Brazilian administration (by reason of their number and value) to which, I think, those nations will not be inclined to submit if they can prevent it.

The law of Brazil to which I refer is of 27th June, 1845, previous to the decree of 1851, above mentioned, and not, like it, referring to consular administration only in bases of reciprocity. This law is still in force and provides—

Article 11. In the right allowed to consuls of foreign nations to be present at judicial and administrative acts relating to estates of decedents and absent persons of their nations, there will be understood to be included the right of requiring, in presence of the authorities of the country, that all legal measures be taken which may conduce to the full collection and administration of said estates; and further, also, the right to be heard in respect to the choice and nomination of curators and administrators of the assets.

If, under this, the appointment could be secured of the consul to take possession and administer, even under the control of the court, we would already have a good part of what we might expect from a new treaty with Brazil—a most desirable thing for American interests here. The only remedy is a new treaty.

I am, &c.,

JAMES R. PARTRIDGE.

[Inclosure.]

Extract from the work of Pereira Pinto on “International Law and Treaties of Brazil.”

[Translation.]

The cases of succession all intestato also gave rise to discussions between the two^* governments, the United States claiming that, by virtue of the first part of the thirty-third article of the present treaty, its perpetuity should be admitted as to those provisions which related to peace and friendship, and thence drawing the corollary that, because, on that principle, the clauses of the eleventh article of that treaty were perpetual, to American consuls belonged the right of collecting and administering, in conformity with the laws of their country, the estates of their countrymen dying here intestate.^†

The weak argument of Minister Wise was completely answered by the notes of the imperial cabinet of the 19th, 21st, and 31st of August, 1846, in which it was established, first, that the stipulations relating to peace and friendship, contained in the thirty-third article, ought to be interpreted in the same manner as similar clauses in the treaties between the said United States and various other powers, expressed in the same kind of terms, declaring that the two nations should observe between themselves all those universal principles and rules generally established, because they protect international and individual rights, and which tend to strengthen peace and friendship between nations; and that (said clauses) did not comprehend any regulations or provisions whatever such as those which provide for the mode of collecting and administering the estates of intestates and personal property existing in the empire, in regard to which there was no express declaration by the two contracting parties; second, even if the provisions of the eleventh article of the treaty could be considered perpetual upon the ground set forth, that, even then, they did not authorize consular intervention in the collection of assets of intestate estates, but only showed a disposition not to claim the droit d’aubaine.

In consequence of these reclamations, the United States renewed, in 1849, their efforts to make a new treaty with the empire, the object of which, according to Plenipotentiary Tod, in his note of 13th of August, was to strengthen the commercial relations between the two countries, and to put an end to doubts which had been suggested in relation to the thirty-third article of the treaty of 1828.

This projet contained (as may be found in the Appendix of the Report of Foreign Relations of 1851) thirty-two (32) articles, and it was a transcript of that which had been entered into in 1828, with the exception of some provisions which gave greater extension to the consular jurisdiction in case of intestates’ estates, and afforded more extensive guarantees (greater privileges) to neutrals in case of war by one of the contracting parties. Persisting, however, in its plan of deferring the negotiation of new treaties, and convinced that the laws of the country already afforded sufficient pledges of security to the development of commerce carried on by foreigners and protection to their persons and property in the same form as these were secured to its own subjects, the imperial government declined, by its note of the 22d April, 1851, to accept the said projet; and later, in 1854, by dispatch of 13th September, gave the same answer to the Envoy Trousdale when he attempted to renew similar pretensions.^‡

1. I. e., the United States and Brazil.
2. Note of Mr. Wise to the Brazilian minister of foreign relations, 1st of July and 20th of August, 1846.
3. In the important work which the Viscount of Uruguay published under the title of “Practical studies in relation to Provincial Administration in Brazil” are enumerated not a few cases of the suspension of the laws of the provinces (State laws) by reason of their inconsistency with treaties, or by reason of their working a change in the personal condition or mode of living of foreigners in the empire, and their attempts to impose upon them taxes and special burdens. (Vol. 2, p. 295.)