Mr. Abbott to Mr. Blaine.

No. 120.]

Sir: I have to call your attention to the present situation of the question as to the interpretation of section 10 of article III of the consular convention of 1850.

The complaint of Consul Vifquain reached this legation about the 1st of December last. I forwarded the same, with comments, to the Department in my No. 48 of December 12 last and asked instructions. As these had not arrived in April, I took the action described in my No. 77 of April 24 last.

At that time it was plainly and particularly agreed between the minister and myself that the case should remain in statu quo until about the middle of August, when, it was hoped, my instructions would have arrived and that the press of business caused by the assembling of Congress would have been somewhat lessened. In the meantime nothing was to be done to render the situation more difficult than it then was. What the true situation was neither of us knew, as neither expressed the slightest opinion in the matter.

On my return from my leave of absence, and before I took charge of the legation, I informed the minister that my instructions had arrived, and that I should be ready to discuss the matter with him at the time agreed upon, or before, if he cared to do so; but I did not communicate the nature of the instructions.

On the 18th of July the minister called up the matter himself and said the business of the Congress which was to assemble on the 20th so occupied his attention that he would prefer to leave the discussion until the time originally fixed, when, he had no doubt, an understanding would be easily reached.

Congress assembled on the 20th of July, and the minister’s biennial report was theoretically issued on that day; but, in reality, it was distributed and became available on the 4th of August, and not before.

The report contained extended comments upon the Smith case, a copy and translation of which I inclose.

I regarded this action as a distinct violation of our agreement made in April and recognized by the minister as binding upon us as late as the 18th of July, when the above extract must have been in type. It, of course, increased the difficulties of the situation immensely, as his position was diametrically opposed to that contained in my instructions and was publicly avowed.

[Page 263]

On the 18th instant I introduced the Smith case and informed the minister of the purport of my instructions, and that I desired to proceed, in the first instance, to an amicable verbal discussion thereof, in the hope that an agreement might be thus more easily reached than by a long written controversy, and that after an agreement the mere crossing of notes in accordance therewith would render the matter clear for the future. The minister seemed to see at once the difficulty which the premature publication of his views might bring him and wished for time to talk with the President.

I acceded to his desire for time to consult with the President and expressed the hope that he would not come to any definite determination to maintain the views expressed in his report until after I had had an opportunity to express the views of my Government. The interview was most friendly and courteous, and the situation was understood and appreciated.

Within 36 hours after I left the foreign office, or, to be exact, at 2:30 o’clock in the afternoon of the 19th instant, I received an official note from the minister requesting me to forward to the United States for service a process of a local court assuming to settle the estate of one Alexander Henry, an American citizen who died in Colombia several years since.

This note was dated August 14, but was not delivered until the 19th, as above stated.

I felt that a compliance with that request would be a direct acknowledgment of the right of that court to claim jurisdiction in the case, which I am not prepared to admit.

When I further considered that the Henry case had been cited by the minister in his published report as an instance of the acquiescence of this legation in the interpretation of article iii, section 10, of the consular convention there maintained, I felt that compliance would also involve complete assent to the principle of interpretation that my instructions require me to deny.

I also felt that the process had been sent to me with that end in view.

I therefore returned the process to the minister with a note. A copy and translation of the minister’s note and a copy of my reply are herewith inclosed.

As soon as may be I shall have a conversation with the minister, and, if there seems to be no hope of his acquiescence in your views as to the interpretation of the convention, I shall take the usual steps in matters of this kind.

Upon the decision of this case depends the rights of British consuls, as well as those of our own. It is important that it be settled as soon as possible, and I shall push the matter with all convenient speed.

I make a separate report upon the Henry case, brought so prominently to my notice in the minister’s report and in his note of August 14.

I am, etc.,

John T. Abbott.
[Inclosure 1 in No. 120.—Translation.]

Extract from the biennial report of the minister of foreign affairs.

A citizen of the United States named Susannah Smith having died in Colon intestate and leaving property in Colombian territory, the circuit judge of Colon, the domicile of the deceased, has taken jurisdiction of the settlement of her estate and [Page 264] has proceeded therein according to law. At the same time the consul-general of the United States has been of opinion that he had a right to take possession of the deceased’s property, make an inventory of it, and even sell it, taking as his authority the letter of section 10 of article 3 of the consular convention now in force between the Republic and American Union.

The said reference to the consular convention of 1850 reads:

Article 3. The consuls admitted in either Republic may exercise in their respective districts the following functions:

* * * “10. They may take possession, make inventories, appoint appraisers to estimate the value of articles, and proceed to the sale of the movable property of individuals of their nation who may die in the country where the consul resides without leaving executors appointed by their will, or heirs at law. In all such proceedings the consul shall act in conjunction with two merchants chosen by himself for drawing up the said papers, for delivering the property or the produce of its sale, observing the laws of his country and the orders which he may receive from his own government; but consuls shall not discharge these functions in those states whose peculiar legislation may not allow it.” * * *

The Government can not recognize as pertaining to the consuls of the United States of America the faculty claimed by the consul-general of Colon, because for said recognition there should exist two conditions: first, that the property left by Mrs. Smith is personal; and, second, that the local laws do not forbid the exercise of the faculty claimed.

Neither of these conditions is present in the “Smith” case.

Not the first, because the property consists of wooden houses, built, it is true, upon land of other owners. But they can not, for that reason, be denominated chattels. Although it may be easy to move the materials and make with them new houses on other land, the distinction between real and personal property can not be derived from that fact. In such case it would follow that, as the machinery for moving houses becomes more and more perfected, the latter would gradually lose the character of real estate, whatever might be the manner of attachment to the soil (por arraigades que fuesen).

And, although the civil code of the Republic includes in this class (real estate) only things which are permanently attached to the soil, such provision does not signify the same thing as perpetually, a condition which could be said of no building.

On the other hand, the case has been decided by commentators of note, among whom may be cited Dalloz. “Buildings,” says this jurist, “constructed upon land of another are real estate, not only when the proprietor has the right or the duty to appropriate them to his own use by virtue of law or agreement at the expiration of the enjoyment of a third person, but also even when the latter may have expressly reserved the right to destroy them or carry away the materials.”

Neither is there present the second condition, to wit, that local legislation permits the consuls to exercise the functions claimed by the consul-general of the United States of America in Colon.

Said condition is definite, since the convention provides that such functions shall not be discharged, except where the states may permit it. The phrase “los Estados” (“those states”) does not refer solely to the American Union to the exclusion of Colombia, since there is no reason to suppose that the latter would agree to such a one-sided concession exclusively advantageous to the former.

Whatever modifications the public law of Colombia may have experienced as to the centralized or federative form of the Republic, the power to regulate everything relating to the matter under discussion has always been maintained in its legislation, whether national or state (una ó varia).

Even supposing that at the time when the consular convention with the United. States of America was signed the exercise of the functions now claimed by the consul general of Colon might have been permitted in Colombia, the subsequent modifications of the laws would suffice to do away with such powers.

Articles 570 and 571 of the Colombian civil code, 1238 and 1241 of the judicial code, and 162 of law 147 of 1888 expressly determine the standard by which the courts must be guided in the settlement of every intestate estate of this kind, as well as the powers which pertain to foreign consuls in the matter, in a sense entirely at variance with that claimed by the aforesaid agent of the United States of America.

Moreover, the honorable legation of the United States of America, in exactly similar cases, e. g., the intestate estate of Alexander Henry, over which the local courts of Cundinamarca have assumed jurisdiction, has not claimed to exercise, either by itself or its consular agents, any other powers than those guarantied and permitted by our law.

The law of the Republic as to this class of estates of deceased persons is in entire harmony with universal practice and with the attributes of consuls in civilized countries recognized by international law. What appear to demand certain reforms in this so important matter are the regulations for the delivery of property to the [Page 265] legal representatives, which, in the opinion of the undersigned, is too much prolonged. So that it happens that the delivery of the property of foreigners sometimes is subject to obstacles and great delay, to the detriment of the property, especially when the latter is in remote situation and deleterious climate.

Among the reforms which I shall have the honor to recommend to you at the conclusion of this report will be found those relative to this point.

[Inclosure 2 in No. 120.—Translation.]

Mr. Roldán to Mr. Abbott.

Sir: The judge of the circuit of Tequendama, in the department of Cundinamarca, in whose court are now taking place the proceedings relative to the settlement of the estate of Alexander Henry, a citizen of the United States, has resolved to cite his widow and children, who live in the city of Wheeling, State of West Virginia; and, in the letters rogatory which I have the honor to send herewith, the said judge requests the chief justice of the Ohio county court to have the kindness to cause to be duly served the said summons.

Owing to the circumstance of there being ho Colombian agent residing in Ohio through whose medium the letters rogatory could be sent, I am constrained to beg of Your Excellency to be good enough to forward it to its destination; in doing which not only would the dangers of miscarrying the document be avoided, but time would be saved in the settlement of the estate.

Anticipating to Your Excellency the expression of my gratitude for your good advice in the matter, I am pleased to renew, etc.

Antonio Roldán.
[Inclosure 3 in No. 120.]

Mr. Abbott to Mr. Roldán.

Sir: I have the honor to acknowledge the receipt, upon the afternoon of the 19th instant, of Your Excellency’s polite note of the 14th instant, calling my attention to the fact that the circuit court of Tequendama has assumed jurisdiction in the settlement of the estate of one Alexander Henry, a citizen of the United States, late deceased in Colombia, and requesting me to forward to the United States, for service upon the widow and children of the deceased, a certain process of the said court relating to the case.

It is with extreme regret that I find myself unable to comply with Your Excellency’s request, for the reason that such compliance would involve the active aid of this legation in the service of a process of a Colombian court, whose right to take jurisdiction in the premises I am not at this moment prepared to admit.

But the principal reason which inclines me to my present decision is found in the fact that the Henry case was cited in Your Excellency’s report to Congress as an instance of the acquiescence of this legation in the interpretation there maintained of article 3, section 10, of the consular convention.

Under such circumstances, a compliance with Your Excellency’s request would be a direct admission of the correctness of such interpretation.

In view of the fact that we have agreed to proceed to an early and amicable interchange of views as to the true interpretation of the said convention, I feel that nothing ought to be done to render the situation more difficult or to prejudice the position of either Government.

I am therefore constrained to return the process without further action.

I take this occasion, etc.,

John T. Abbott.