to Mr. Osborn
Washington , April 12, 1878.
Sir: Your dispatch No. 33, of the 1st ultimo, has been received. It asks whether the termination by Chili of the treaty of 1832 with the United States, abrogated the clause of the tenth article, which guarantees to citizens of the parties the benefit of the laws of their respective countries. In reply I have to state that the termination of the treaty can only be regarded as a termination of all the special stipulations embraced [Page 88] in it, including the one adverted to. Even in the absence of a treaty, however, Chilians in this country would have the full protection of the law, and we should expect the same for citizens of the United States in that country. Although that instrument provided that those of its parts which related to peace and friendship were not repealable, as those parts are not specified, it would now be difficult to determine what were meant to be included in them.
Similar difficulties have been experienced on other occasions. The treaty of 1828 with Brazil contained a clause like that in the one with Chili. Under the eleventh article of that treaty, equitable provision was made for disposing of the property of decedent citizens or subjects of the parties. It was long strenuously, but ineffectually, contended by this Department that the stipulation adverted to was one of those relating to peace and friendship, and should therefore be regarded as in force. Much inconvenience has been experienced by the refusal of the Brazilian Government to admit this construction. As no treaty exists with Brazil, the estates of our citizens who die there are administered according to the local law, which is tardy in its proceedings, and is supposed to absorb, by the expense attending them, an undue share of the property.
You say that there is not on file in the legation any copy of the notice of the Chilian Government in regard to the termination of the treaty. A copy of Mr. Carvallo’s note to Mr. Buchanan of the 19th of January, and of the reply of the latter of the 27th of February, 1849, on that subject, are consequently herewith transmitted. The question is referred to in the full and elaborate instructions of Mr. Clayton to Mr. Balie Peyton of the 10th of September, 1849, which it is supposed are on the files of the legation. The record of his dispatches to the Department will show you the steps he took toward a new treaty, and the reasons why negotiation upon the subject was abortive. Undoubtedly such, an instrument, upon a fair basis, would be advantageous to the interests of the United States. You may consequently sound the minister for foreign affairs as to the disposition of his government upon the subject. If this should be favorable, a power will be forwarded to you, with such further instructions as the lapse of time since Mr. Peyton’s mission, and the greater experience of the Department, may seem to render advisable.
I am, &c.,