No. 109.
Mr. Bayard
to Mr. Hosmer.
Washington, April 30, 1888.
Sir: The Department has received Mr. Hall’s No. 798, of 3d instant, communicating an inquiry of Mr. C. Pinto, an American citizen (who has been asked to give a large bond in connection with a suit he has brought against a bank in Guatemala), whether Article XII of our treaty of 1849 with that Government is not still in force, so that no discrimination can be made against him in respect to the bringing of this suit, for the reason he is not a citizen of Guatemala.
I find upon examination of the records that on the 12th of September, [Page 150] 1873, Señor Marco A.Soto, Guatemalan minister of foreign affair addressed a note to Mr. Williamson, United States minister to Guatemala, notifying him that on the 28th of the preceding month of August, the President of the Republic, Barrios, had directed the termination of all the treaties of Guatemala with foreign countries in order that new treaties might be made more suited to the conditions of the times. To this end the minister for foreign affairs said he gave notice to Mr. Williamson that the treaty of 1849 would be regarded as denounced from and after the date of the receipt of such notice at Washington.
Not being clear as to the meaning of this, Mr. Williamson, on the 16th of September, 1873, called the attention of the minister of foreign affairs to the fact that by the thirty-third article of the treaty it would continue in full force and effect for twelve months after the date of notice.
On the 30th of October, 1873, Señor Vicente Dardon, Guatemalan minister at this capital, wrote to Mr. Fish, saying that the Government of Guatemala, under date of 12th September, had announced to Mr. Williamson “its desire for the annulment of the treaty concluded between Guatemala and this Republic [the United States] March 3, 1849, in order that the term of one year might commence to run, which for such annulment is fixed by Article XXXIII of the said treaty.”
Mr. Fish, replying on the 15th of November, 1873, said he had received the information referred to from Mr. Williamson, “who was advised that consequently the treaty would terminate on the 4th of November, 1874; that is to say, one year from the receipt of the notice by this Government.”
This is all there is on the subject, and it discloses nothing decisive as to the non-termination of those parts of the treaty relating to peace and friendship. It may however be argued that as notice was given pursuant to the provisions of Article XXXIII of the treaty, so far as time was concerned, and those provisions were thus recognized in the denunciation of the treaty, those parts relating to peace and friendship are to be regarded as still in force.
In determining what are the parts relating to peace and friendship as contradistinguished from those relating to commerce and navigation, the treaty furnishes no test; we must therefore look to the substance of the various provisions to find under which head they fall.
The first article of the treaty provides that there shall be perfect, firm, and inviolable peace and friendship between the contracting parties.
As to this part there can be no doubt. But in international relations, peace and friendship have certain incidents, which constitute the comity of nations as distinguished from rights of commerce; that is to say, of buying, selling, and trading. One of those incidents is the right of resort to the courts for the protection of persons and property. In regard to this, Article XII, of the treaty of 1849 between the United States and Guatemala, provides as follows:
Both the contracting parties promise and engage formally to give their special protection to the persons and property of the citizens of each other of all occupations who may be in the territories subject to the jurisdiction of the one or of the other, transient or dwelling therein, leaving open and free to them the tribunals of justice for their judicial recourse, on the same terms which are usual and customary with the natives and citizens of the country in which they may be, for which they may employ in defense of their rights such advocates, solicitors, notaries, agents, and factors as they may judge proper in all their trials at law; and such citizens or agents shall have free opportunity to be present at the decisions and sentences of the tribunals in all cases which may concern them and likewise at the taking of all examinations and evidence which may be exhibited in the said trials.
Another provision, that may fairly be classed under the head of peace and friendship, may be found in Article XIII of the treaty, by which it is—
Agreed that the most perfect and entire security of conscience shall he enjoyed by the citizens of both the contracting parties in the countries subject to the Jurisdiction of the one and the other, without their being liable to be disturbed or molested on account of their religious belief, so long as they respect the laws and established usages of the country.
In the same article we find a still stronger provision, as affecting peace and friendship, to the effect that—
The bodies of the citizens of one of the contracting parties who may die in the territories of the other, shall be buried in the usual burying grounds, or in other decent and suitable places, and shall be protected from violation or disturbance.
Truly this is not a provision of commerce or of navigation.
There can be nothing unfair to Guatemala in treating these provisions as in force, since they continue to be binding on Guatemala, they are equally and reciprocally obligatory on the United States.
You will take an early occasion to impress these views on the Guatemalan secretary for foreign affairs, informing him that we hold that the indicated treaty provisions relating to peace and friendship were not terminable, and have not been terminated by the notice given by Guatemala in 1873.
I am, etc.,