No. 210.
Mr. Bayard to Mr.
Becerra.
Department of State,
Washington, June 1,
1885.
Sir: I have the honor to call your attention to
the inclosed copy of a decree of the President of the United States of
Colombia, which I am informed by our consul at Barranquilla, under date
of the 24th April, was published in the Official Gazette of the 12th
February last, and is dated the 10th of the same month.
By Article I of this decree the payment of custom-house dues in any place
incidentally occupied by rebel forces, not only does not exempt the
[Page 270]
respective importers of the
goods which have already paid duties to the insurgents from their
obligations to the national treasury, but will be a reason for adding to
such obligations 50 per cent, of the amount of duties illegally paid, if
immediate payment is refused, and the collectors are further instructed
to proceed immediately to a collection of such dues, as also of the
extra 50 per cent, in case of delay, and are required to make a report
to the treasurer of all such importers as have paid duties to the
rebels.
Our consul at Barranquilla informs me that on the 17th April the foreign
consuls in Barranquilla protested collectively to the military commander
of the city against the decree in question. The reply of the general is
herewith inclosed. It does not appear from the consul’s dispatch whether
this decree has been enforced and the duty been actually collected, but
it is probable that now that the rebellion is partially overcome all
means of raising revenue have been adopted, and I desire, in
anticipation of the protests of our merchants, to express the views of
his Government on the subject.
The question as to how far a government is responsible to its citizens
and foreigners within its borders for losses occasioned by insurgents
may perhaps be open to argument, but there can be no question that no
Government has the right to inflict a punishment (for this double tax,
with superadded penalty, amounts to a punishment) on neutral and
peaceful merchants who have been compelled by military force to
contribute against their will to the revolutionary funds or supplies, as
if such merchants were voluntarily aiding and abetting the
rebellion.
A Government is bound to use all proper measures to protect the denizens
within its borders from revolutionary acts, and in case it fails to
insure such protection, it cannot with any justice hold the citizens of
foreign nations responsible for its own weakness and failure to protect
them, by imposing on them a penalty or fine for the very occurrences
which the Government itself was bound to avert. Such a course of action
as is authorized by the decree of the 10th February would be especially
objectionable as being a retroactive revenue measure at ports admitted
to have been beyond the control of the Government at the time the rebel
dues were paid. Should an attempt be made to justify it on the ground of
being in effect a fine for illicit trading with ports assumed to be
embargoed, as mentioned in the President of Colombia’s decree of the 9th
April, I must again use the arguments in my note of the 24th ultimo to
those decrees, and contend that a blockade must be efficient to be
recognized, and that executive measures relative to ports over which the
Government has no control can only be considered as nugatory.
Hoping that your Government will view this question in an equitable light
and reconsider this decree, which must prove so harassing to our
merchants,
I have, &c.,
[Inclosure
1.—Translation.]
Decree No. 173 of
1885 of the President of the United States of
Colombia.
The President of the United States
of Colombia:
Whereas that, in conformity with the articles 149 and 150 of the
fiscal code of the union, importation duties ought to be paid in the
respective custom-house, that is to say, in that in which the duties
have Been occasioned, or in the general treasure of the union, it is
decreed:
- Article I. The payments of the
importation duties that have been made to persons having no
legitimate official character in any custom-house or place
of the Republic,
[Page 271]
incidentally occupied by rebel forces, not only does not
exempt the respective importers from the obligation
contracted by them or their agents in favor of the national
treasure, but will be a cause for adding to the debt 50 per
cent, on the amount of duties erroneously paid, provided the
importer or his agents having been advised, deny the
immediate payment of the duties occasioned in favor of the
public treasure.
- Article II. The collectors of
customs of the Republic shall proceed immediately to require
the importers mentioned in the above article, in order that
the payments of duties which they owe shall be delivered to
the national treasure, and not to persons without any
official character, and if they do not pay immediately the
collectors shall proceed to collect the amounts plus the 50
per cent, mentioned in the same article making use of those
means in accord with their jurisdiction, not only against
the principal debtor, but also against his respective
liabilities.
- Article III. In respect to the
payments of the importation duties that ought to have been
made to the general treasure, and are mentioned in the
Article I of this decree, the general treasurer shall
proceed as determined by the Article II of the same.
- Article IV. The collectors of
customs of the Republic shall pass immediately to the
general treasurer a memorandum of the persons that ought to
have paid their importation duties to this office, and have
given it to persons without any legitimate official
character.
Given at Bogota,
the 10th day of
February, 1885.
RAFAEL NUÑEZ.
The secretary of the treasury,
[Inclosure
2.—Translation.]
Protest of the Foreign Consuls at Barranquilla
against Decree No. 173 of 1885.
Barranquilla, April 17, 1885.
General-in-Chief of the
Military Forces of the Place:
By decree No. 173 of the 10th of February last, published in the
Official Gazette of the nation, No. 6309, the 12th of the same
month, the national executive power directs that the payment of
import duties made to individuals who have no legitimate official
character not only does not exempt the importers from the
obligations contracted by them or their agents in favor of the
national treasure, but will furnish a reason for adding to the debt
50 per cent, of the amount of the importation duties illegally
paid.
This place and its custom-house being occupied by military forces
that have not been recognized by the National Government, and who
have no recognized legitimate official character, and they having
demanded from the importers payment of custom-house bonds made in
favor of the national treasure for customs duties previously
incurred, the undersigned, to protect from the responsibility that
would be incurred in the payment of the said bonds by the subjects
and citizens of the nations we represent, protest against the
payment of the said bonds which the military forces of the place are
now exacting, and we protest also against every other payment of
this kind or of an analogous nature made or that shall be made in
future taxing and obliging foreign merchants to pay by armed
force.
With respectful consideration, your humble servants,
- D. LÓPEZ PENHA, Jr.,
The Consul-General of the
Netherlands.
- AUGUST STRUNZ,
The Imperial and
Royal Austro-Hungarian Consul.
- FRED. STACY,
British
Consul.
- M. SIEFKEN,
Consul of the German
Empire.
- O. BERNE,
Consul of
Belgium.
- THOS. M. DAWSON,
United States
Consul.
- D. L. PENHA, Jr.,
Consul of Spain.
- JUAN ARMELLA,
Consul of His
Majesty the King of Italy.
- J. XIQUES,
Consul of
Venezuela.
- O. BERNE,
Vice-Consul of
France.
[Page 272]
[Inclosure
3.—Translation.]
Reply of General Acevedo to the consuls’
protest.
United States of Colombia,
General Staff of the Army of the
Atlantic,
Barranquilla, April 20,
1885.
Messrs. D. López Penha,
Jr., Consul-General of the Netherlands;
August Strunz, Consul of
Austria Hungary, &c.:
The citizen general-in-chief of the Atlantic army has commanded me
concerning the memorial dated the 17th instant, which the Messrs.
consuls of the Netherlands and of France delivered in person into
the hands of one of the officers of my department, with the
recommendation that it he given to me. Said citizen general has
communicated to me instructions to resolve thus:
The memorial says the object of the present note is that “by decree
No. 173 of the 10th of February last, published in the Official
Gazette of the nation, No. 6309, the 12th of the same month, the
national executive power directs that the payment of import duties
made to individuals who have no legitimate official character not
only does not exempt the importers from the obligations contracted
by them or their agents in favor of the national treasure, but will
furnish a reason for adding to the debt 50 per cent, of the amount
of the importation duties illegally paid.”
That decree of the Government of Mr. Nuñez causes the protest of the
Messrs. consuls, in guarding the rights of their countrymen, who
have been compelled by the constitutional forces to pay duties
incurred and owed on written obligations. Said protest is also
extended to any further cases of force to make effective payments of
a similar character.
Former laws already annulled, and other acts of a legislative
character yet in force, as the decree cited, prohibit absolutely the
voluntary payments made to persons not invested with an official
character to receive duties or imposts; but the same laws have been
expressed in other terms in the sense that the compulsion produces
indiscriminately the irresponsibility not only in respect to the
tribute but also in respect to the treasurers or collectors having
an official character.
This doctrine is in accordance with the natural law, and is
recognized as a principle of universal legislation. The civilized
nations have established in their civil code as a legal exception to
freedom from the responsibility, execution or omission of acts or
obligatory contracts, the intervention of greater force when that is
exercised particularly against the debtor.
If it be that the protest refers to the exigency mentioned, the
payment of duties treated of in the well-known decree, No. 173, the
representative of the constitutional forces in the Atlantic states
accepts the protest in order that in any event he may furnish a
suitable proposition to which the Messrs. consuls may agree.
I am, &c.,
Authentic. The adjutant-general’s seeretary,
