Mr. Abbott to Mr. Blaine.
Bogota , August 22, 1890. (Received September 25.)
Sir: In my No. 120 of this date I refer to the manner in which was brought to my notice the settlement of the estate of Alexander Henry, an American citizen who died here some years since. I had previously learned from Consul-General Walker that there had been some difficulty in reference to obtaining possession of a certain check belonging to the estate of the deceased, but had not known that jurisdiction was being exercised by a Colombian court.
The following is a statement of the result of my examination of this case:
July 15, 1886, the foreign minister, Dr. Restrepo, wrote to Mr. King, informing him of Mr. Henry’s death, and that, having in view articled, section 10, of the consular convention, the Government had requested the proper authorities to give their attention to the case in the manner prescribed in article 1067 and 1068 of the civil code of Cundinamarca.
Mr. King replied, under date of July 19, fully acquiescing in the action of the minister, as he knew of no facts to justify any other course than that pursued in the case.
Mr. King, in his No. 52 of July 22, 1886, transmitted to the Department a copy and translation of Dr. Restrepo’s note and a copy of his reply thereto.
Since 1886 there seems to be no reference to the “Henry” case upon the files of this legation.
An examination of the archives of the consulate-general shows—
That the Department wrote Mr. King under date of December 2, 1886, but the letter can not be found.
On January 21, 1887, Mr. King asks the consular agent at Honda to inform him of the residence of Mr. Seamon, said to be administrator of Henry’s estate.
I find, also, an unsigned copy of a letter dated February 7, 1887, and apparently sent by Mr. King to the foreign minister, a copy of which I inclose. It is headed as from the legation, but does not appear in the legation’s archives; nor can I find any answer thereto.
February 14, 1887, Mr. King sent his No. 8 (consular series), to which I refer.
November 4, 1887, is the date of Mr. Adee’s No. 3 to Mr. Walker.
I next find Mr. Rives’s No. 8 to Mr. Walker, dated May 7, 1888, transmitting a power of attorney from Thomas Seamon, administrator, to Henry Hallam and James Wilson, empowering them to settle the estate of Henry. With it is the original power of attorney, which, apparently, has never been delivered to Hallam or Wilson, and, as Wilson is now said to be an imbecile and Hallam lives in Honda, it is quite useless to deliver it.
Under date of November 27, 1888, I find a record of a letter from Mr. Bashell, acting consul-general, to General Morgan, of Girardot, requesting him to take possession of all of Henry’s personal property, sell the same, and remit the proceeds to him. Mr. Bashell says that Minister Maury took this letter to Girardot and gave it to General Morgan, but he never heard of any result from it.
I next find the No. 14 of Mr. Adee to Mr. Walker, dated December 9, 1889, and, lastly, Mr. Walker’s No. 21 of May 28, 1890, to Mr. Wharton.[Page 267]
This comprises all I can discover in the utterly disordered archives of the consulate here in reference to this case.
It seems that Mr. King acknowledged the rights of the courts of Cundinamarca to take jurisdiction, but, inferentially, upon the ground that the property was all real estate. Still, the whole case has apparently proceeded recognizing that right.
It will be appreciated that, owing to the disordered condition of the consular archives and the fact that nearly everything in connection with the case occurred before I took charge of this legation, I do not feel certain that the whole proceedings are well understood.
It is not impossible that the “Henry” case may present a totally different aspect from that of the “Smith” case. To explain:
Prior to the last revolution the nine States of Colombia were quite as independent as the States of the United States. Each made its own laws relative to the settlement of estates. The law of the State of Cundinamarca will be found in inclosure No. 2 of my No. 48 of December 12, 1889. This law was the law of a “State” and was in force as such up to August 6, 1886, when the new constitution went into force in matters of this kind and the “State” of Cundinamarca was reduced to a “department,” and continued in force in the new department from said August 6, 1886, up to July 22, 1887, by virtue of additional article 8 of the new constitution, a copy of which is on the Department files. On the latter date the present national civil code became operative.
So that at the time of the death of Henry in Cundinamarca, June 30, 1886, the civil code of Cundinamarca was in force as a law of a sovereign State, and so continued for 37 days thereafter, during which time, I am informed, the court took jurisdiction.
But of this I am not yet certain and have not the means to ascertain immediately. It certainly had taken jurisdiction before July 22, 1887, up to which date, beginning August 6, 1886, the civil code of Cundinamarca was in force by virtue of the authority of the new constitution, i. e., an authority exercised by the Central Government.
Therefore, the question may arise whether the provisions of the law of Cundinamarca at the time of Henry’s death and the taking of jurisdiction by the court must not be construed to be a law of a “state whose peculiar legislation does not permit” the settlement of estates by consuls. In case of such construction, there would be presented the situation mentioned in your No. 67 of May 29 last.
Cundinamarca was as much a state, up to August 6, 1886, as is New York or Virginia. It is true that it was erected after the date of the consular convention, as were Colorado and Wyoming.
This case is therefore not so free from doubt as is the “Smith” case, in which the views of the Department are so manifestly in accordance with reason and common sense.
As I am anxious not to complicate matters in that case by any erroneous claims in the present one, I have concluded to delay any protest or argument herein until the views of the Department are known.
I will add that the summons to the widow and children of Henry, which I declined to forward, as noted in my No. 120 of this date, is dated March 10, 1887. It states that the property amounts to more than $1,700 (pesos) and that it is in the possession of James Wilson and Carlos Saénz. The latter is said to be an excellent man, and I have no doubt that anything in his possession has been properly cared for. I shall continue to give this matter my attention.
I am, etc.,