No. 54.
Mr. Trail to Mr. Bayard .

No. 77.]

Sir: You are aware, by the report accompanying my No. 72, that Brazil has given notice of the expiration, at an early date, of all the consular conventions existing between her and foreign powers, and as most of these powers, if not all, will strenuously insist either on Brazil’s agreeing to new conventions or to the prolongation of the old ones, it occurs to me that our Government ought to profit by the situation, at all events obtain as many and as valuable rights as Brazil will in the end be forced to grant to England, France, Portugal, Germany, and Italy. In the language of treaties and conventions these rights are spoken of as reciprocal, but when used with reference to Brazil it must be remembered that where one Brazilian claims a particular right or favor under a convention in England, France, or Germany there will be fully as many as twenty subjects, respectively, of these latter countries who will have occasion to claim the same right in Brazil. The foreign population here is large and important, but the imperial laws do not give it that protection which foreign governments deem it entitled to; hence the necessity of conventions and the readiness on the part of European powers to grant reciprocal favors to Brazil.

These conventions relate nearly wholly to consular intervention in the collection and settlement of the estates of their fellow countrymen dying abroad; and I am informed on the best authority that the costs of collection and administration under the conventions amount to 20 per centum of the estimated value of the estates. The taxed costs in orphans’ courts, as given in a legal treatise on administration—“Bons de Defuntos é Ausentes, 1859”—ought not to exceed 10 per centum of the estate. Referring you to inclosure No. 1, you will note that Her Britannic Majesty’s consul-general speaks of the consul’s efforts in such matters as if they were usually made without any particular refence to the law, but as depending for their results mainly on luck. The United States cases there mentioned are those of Gavin and Melrose (recently reported to the Department by our consul-general). You will see he estimates that such estates “generally say about 20 per cent.,” i. e., where the decedent left no relative within the country and where there was no consul residing in that particular district [sic] Although Her Britannic Majesty’s consul-general is well versed in matters of this nature, his opinion of the method of procedure allowed our consuls by Brazil is erroneous.

Consul-General Armstrong has sent you a copy of decree No. 2433, of June 15, 1859, which governs the administration of the estates of Americans dying in this Empire, as claimed by Brazil, where they leave no heirs in the country. This law, it will be seen, applies to natives as well as to foreigners. The only article of the decree which contains the word “consul” is No. 33; it states that when the judge shall discover that the decedent was a foreigner he shall immediately notify the proper consul, or if there is no consul then the minister of foreign affairs, who in his turn shall communicate the fact to the competent authorities of the deceased person’s country. This, it appears to me, is for a twofold purpose: (1) That the consul may search for the heirs, and (2) that, in the event of the non-discovery for the time being of heirs or claimants, [Page 61] he may appear in court and observe how the estate is being administered and what final disposition is made of it. The article does not give him the right to interfere or take part in any way in the collection and administration of the estate 5 for that he must have a power of attorney from the heirs, and proof that they are the heirs, just as any non-official would have to have$ but the fact that the article instructs the judge to notify the consul of the death gives the latter the right to attend the proceedings taken upon the decedent’s estate. The article further says: “The judge shall immediately inform the consul.” * * * In the case of Gavin this was not done, for the notice sent the legation was that the estate had been settled up already, leaving a certain balance in the hands of the curador. This balance, the net proceeds of the estate, Minister Jarvis requested the minister of foreign affairs to instruct the curador to pay over to our consul-general, but the foreign office said this was contrary to decree of 1859, which governs such cases. Of course in case the heirs to these estates do not appear and move their claims in time, i. e., within thirty years, the estates go to the Empire; but if they should appear and are to be subjected to the delay and annoyance experienced by the heirs of Mr. William T. Harris, who died in Bahia in 1852, and whose heirs, after twenty-one years of repeated efforts, obtained from Brazil a quarter of the estate (Mr. Partridge to United States consul at Bahia, 1873), it would be an act of kindness, if not the plain duty of the Department, to advise them for once and all to abandon the said claims. I have only a very few of the records with me at Petropolis to consult, but if my memory is not at fault there is no mention of any American estate from Harris’s* time (1873) to that of Gavin and Melrose.

The European consuls in Brazil, working under their respective conventions, are able to secure promptly at least a part of the estates of their decedent fellow-countrymen. I inclose a copy of Article IV of the convention between Her Britannic Majesty and the Emperor of Brazil. This, taken in connection with Inclosure No. 1, shows in a measure the proceedings taken on English estates. Articles VI and VII of decree No. 855, of November 8, 1851 (vide Inclosure No. 3) which Her Britannic Majesty’s consul-general says govern in the cases of Gavin and Melrose, relate only to estates of those foreigners whose countries grant reciprocity to Brazil, which is not the case with us at present.

The method of procedure employed by the European consuls in this matter is as follows: As soon as they learn of the death of a fellow-countryman they instruct their consular agent in the district to appear for the heirs and to settle up the estate, or when there is no agent there they write the judge requesting him to appoint some one of the same nationality as the decedent as administrator, or in the case of the estate already having been administered upon they instruct the judge to order the balance to be transmitted them, which they pay over to the heirs when they can be found, and when unknown the money is remitted to the home Government, and sent to the locality from which the deceased originally hailed and where some legal claimants to the estate will in almost every case be found. Austria-Hungary is in exactly the same condition as the United States, without convention or reciprocity; yet her consul, by adopting the methods of his colleagues, enjoys all their privileges. The local judges, naturally, do not discriminate between the right of the different consuls, all of whom proceed in about the same way in obtaining possession of the estate.

The decree of 1851 (Inclosure No. 3), confers on the foreigners acting under its provisions nearly all the privileges enjoyed by the powers [Page 62] having conventions, and it would be advantageous for us could we be governed by it; but the title reads: “This decree applies only where reciprocity exists.” In this connection I quote from Mr. Partridge’s No. 123, of August 15, 1873:

In our own case I suppose it will not be possible for the Government of the United States to grant reciprocity of consular Collection and administration independent of the local tribunals, since under our system the administration of estates is exclusively within the jurisdiction of the State courts.

Assuming this view to be correct, that our Government can not grant reciprocity, we still have it in our power to obtain whatever privileges, exemptions, and immunities are granted other nations, by forming a convention which would confer on us the rights enjoyed, for example, under Articles IX and XI of our treaty with the Argentines of 1853, these articles treating of reciprocal rights “conformably with the laws of the country.”

But we have certain rights still existing under our old treaty with Brazil of 1828 which, in the matter of the collection and administration of estates, should place us upon as favorable a footing as any of the European powers. You will observe, by turning again to Mr. Partridge’s No. 123, and the papers there deferred to, that, after certain correspondence on this subject, Brazil admitted that Article XI of the treaty was in force, but maintained that it did not touch upon consular rights, and this with some show of reason, it appears to me; for Article XXXII of the treaty States, in effect, the necessity of a consular convention to declare especially the powers and immunities of consuls; and this matter of estates, as it is nowhere else referred to in the treaty as coming under consular jurisdiction in any way, would presumably have been one of the subjects to be included in the proposed convention.

Our treaty contains, however, the most favored-nation clause, Article II, and although the treaty “in all parts relating to commerce and navigation” ceased and determined December 12, 1841, and the words “in respect to commerce and navigation” occur in the body of that article, still I think it tenable to maintain that the article itself is yet in force, and entitles us among other favors to the privilege enjoyed by the European powers in the settlement of estates. It would certainly seem that under the peace and friendship parts of the treaty, which are to be permanently and perpetually binding on both powers, is included Article II, and that Brazil could not consistently withhold from us the privileges it confers.

If a prompt and efficient administration of Brazilian law by the native officials could be relied on, there would be no occasion for interference in these matters, but the opinion prevails among foreign representatives here resident that without some interference and supervision in the matter of estates, the interests of the heirs would suffer grieviously.

To protect American interests our consuls ought to be entitled to the same privileges that other consuls enjoy; privileges to which they are entitled, in the writer’s view, under Article II of the treaty, and without the rights to the exercise of which they are prevented from aiding their countrymen in one of the very matters where their assistance would be of very great service.

I have, etc.,

Charles B. Trail.
[Page 63]
[Inclosure 1 in No. 77.]

Convention between Her Britannic Majesty and the Emperor of Brazil respecting consular rights, etc. (1874).

Article IV.

Whenever a subject of one of the high contracting parties shall die within the dominion of the other, and there shall be no person present at the time of such death who shall be rightly entitled to administer to the estate of such deceased person, the following rules shall be observed:

(1) Where the deceased leaves, in the above-named circumstances, heirs of his own nationality only, or who may be qualified to enjoy the civil status of their father, the consul-general, Consul, vice-consul, or consular agent of the nation to which the deceased belonged, giving notice to the proper authorities, shall take possession and have custody of the property of the said deceased, shall pay the expenses of the funeral, and retain the surplus for the payment of the debts and for the benefit of the heirs to whom it may rightfully belong.

But the said consul-general, consul, vice-consul, or consular agent shall be bound immediately to apply to the proper court for letters of administration of the effects left by the deceased, and these letters shall be delivered to him with such limitations and for such time as to such court may seem right.

(2) If, however, the deceased leaves, in the country of his decease and in the above-named circumstances, any heir or universal legatee of other nationality than his own, or to whom the civil status of their father can not be granted, then each of the two Governments may determine Whether the proper court shall proceed according to law, or shall confide the collection and administration to the respective consular functionaries under the proper limitations.

When there is no consul-general, consul, vice-consul, or consular agent in the locality where the decease has occurred (in the case contemplated by the first rule of this article) upon whom devolves the custody and administration of the estate, the proper authorities shall proceed in these acts Until the arrival of the respective consular functionary.

[Inclosure 2 in No. 77.]

Decree No. 855 of November 8, 1851

Article 6.

If a foreigner domiciled in Brazil should die under the circumstances of Article 2 of this regulamento in a locality where there is no consular agent of his nation, the judge dos defuntos é ausentes will proceed with the collection and inventory of the inheritance” in the presence of two trustworthy witnesses of the nationality of the deceased, and for want of these in the presence of two reliable merchants or proprietors; who shall be administrators or liquidators of the inheritance until proof shall be made concerning, the disposal of the balance of the estate (producto liquido) and there being no dispute about the estate (e nao controvertido dalio).

Article 7.

In the case of the preceding article, within fifteen days after notice has been received of the death of a foreigner under the circumstances of Article 2, the judge of the district will inform the minister of foreign affairs of the death, age, residence, place of birth, profession, and, as far as he can, of the property and relatives of the said foreigner, in order that the said minister may come to an understanding with the legation or consular agent as to the disposal of the balance of the inheritance.

Article 2, referred to in Articles 6 and 7, limits the case to that of a foreigner dying in Brazil, intestate and leaving no consort or other heirs at law.

C. B. T.
  1. i. e., from the time Harris’s was settled.