I presented, verbally, the views of the Department as embodied in previous
instructions. The minister evidently recognized the strength of our position
and gave me his best attention. He was careful, however, not to commit
himself, and made no attempt to defend the Colombian interpretation. The
impression he made upon me was that he had never given the matter his
personal consideration. He promised to do so, however, and will now have
ample opportunity, as Congress is about to adjourn. I have always been
extremely desirous to have this matter so presented to Dr. Boldan’s
attention as to insure his own personal study, and believe that this has now
been accomplished.
He told me on a former occasion that he had no desire to maintain the
Colombian interpretation at all hazards, and that he was prepared to yield
the point if he could be convinced of any error in conclusions reached.
As the minister will soon leave the city for the summer vacation, I have
prepared and sent to him a note, of which I inclose a copy. I do not expect
a reply until after the vacations are over in January or February.
It seems to me that there can be no question of ultimate success in this
matter, and I think that the friendly but persistent representations which
have been made to the minister from time to time will impress him with the
importance attached to the question by the United States and will gain his
personal and careful consideration.
[Inclosure in No. 164.]
Mr. Abbott to Señor
Roldán.
Legation of the United States,
Bogotá, December 16,
1890.
Sir: I have the honor to invite your
excellency’s careful attention to the circumstances attending the
settlement of the estate of Susannah Smith, a citizen of the United
States, who died in Colon intestate during the year 1888.
Mrs. Smith left, inter alia, two tenement houses
situated in Colon upon land leased from the Panama Railroad Company.
In accordance with the provisions of article iii, section x, of the existing
consular
[Page 470]
convention between
our respective countries, the consul of the United States at Colon
proceeded to settle Mrs. Smith’s estate, and in the exercise of such
functions sold the two houses in July, 1888, and applied the proceeds to
the payment of Mrs. Smith’s debts in Colombia. Several months after the
due settlement of the estate had been made the local authorities
intervened, and are now proceeding to settle the same under the
provisions of the statute law of Colombia. Such intervention and
proceeding seem to be contrary to the plain meaning of the above-cited
section of the treaty of 1850, and it is believed that a due
consideration of the law and the facts of the case by your excellency’s
Government will lead to an immediate withdrawal of further action by the
local authorities of Colon and to a recognition by Colombia of our
consuls’ right to settle the estates of their countrymen dying here, so
far as relates to personal property. In support of my Government’s
belief that the action of our consul should not be disturbed, I beg
leave to submit the following considerations:
The tenth paragraph of the third article of the consular convention of
1850 between the United States and New Granada contains, in reference to
the powers of consular officers, the following provisions:
“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 or delivering the property or the produce of its sales,
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. Whensoever
there is no consul in the place where the death occurs, the local
authorty shall take all the precautions in their power to secure the
property of the deceased.”
The first question that arises in the present case under this paragraph
is whether the United States consul in Colon had, in 1888, when he sold
the houses, the right to take possession of and sell the movable
property of his deceased countryman in, that place. My Government is of
opinion that he had.
The “contracting parties” named in the convention are New Granada and the
United States. By the convention the right to take possession of and
sell the movable property of their deceased countrymen is accorded to
the consuls of the “contracting parties.” Therefore, neither of the
“contracting parties”—that is to say, neither New Granada nor the United
States—can make any law prohibiting or interfering with the exercise of
these functions by consuls of the other “contracting party” which will
not be in contravention of the convention. The existing law of Colombia
(New Granada), under which it is claimed that such consular functions
can not be exercised, is a law made by a “contracting party” to the
convention, and therefore (admitting for the sake of argument that this
law does not allow the exercise of such functions) is clearly contrary
to the provisions of that treaty.
When the convention was concluded New Granada was a centralized republic.
So far as I have been able to ascertain there was no general law
defining or limiting the powers of consuls with respect to the
settlement of the estates of their deceased countrymen. Nor were there
any political divisions under any name that had legislative jurisdiction
in the premises. It is true that after the creation of the United States
of Colombia the separate States of the Republic adopted legislation of
their own upon the subject. But the rights of consuls under that state
of affairs is not now under discussion. In 1886, however, the Republic
of Colombia supplanted the United States of Colombia. The States became
departments, and much of their prior legislation became inoperative.
The National Government of the Republic has the sole power to legislate
upon matters of the kind under discussion, and has exercised that power
since August 6, 1886.
What may be the construction of the laws of Colombia made by the central
authority appears to my Government to be immaterial. In this case there
is a pertinent and comprehensive treaty stipulation, which, it is
needless to argue, is of paramount obligation upon the contracting
parties.
The only exception to the exercise of the powers conferred by the said
section of the convention is found in the provisions that “consuls shall
not discharge these functions in those States whose peculiar legislation
may not allow it.” The reason and effect of this are clear: In the
United States, just as was formerly the case in Colombia, legislative
power in respect to the settlement of estates is vested in the several
States. It has always been controverted whether the exercise of this
power could constitutionally be controlled by the Government of the
United States either by law or by treaty. In order to meet this
difficulty, it was provided in the convention that the consuls should
not exercise the functions of settling estates in States “whose peculiar
legislation might not allow it.”
The term “peculiar legislation” means simply the legislation of
particular political
[Page 471]
divisions
of the country possessing legislative power with respect to the
subject-matter. The term “those States” was also obviously employed in
reference to the same political divisions, and could not have been used
with reference to the contracting parties or Governments. So far as
those Governments are concerned, they bound themselves, in all places
where they possessed the necessary jurisdiction, to permit consuls to
exercise the functions in question. So clear does this appear to be that
my Government does not perceive how any other construction can be placed
upon the treaty, and is therefore of opinion that the consul at Colon
had authority under the treaty to take possession of, inventory,
appraise, and sell the movable property of Mrs. Smith.
It now remains to consider the question whether the houses the consul
sold, built upon land leased from the Panama Railroad Company, were
movable property within the meaning of the treaty. If they were, the
consul had, under the construction herein maintained, the right to take
possession of and sell them.
Among the methods by which it is held that property in goods and chattels
may be acquired is that of accession. This right existed under the Roman
law, from which it found its way into the jurisprudence of England and
the United States.
“The right of accession,” says Kent, “is defined in the French and
Louisianian codes to be the right to all which one’s property produces,
whether that property be movable or immovable, and the right to that
which is united to it by accession, either naturally or artificially” (2
Kent’s Comm., 360). This definition, it is believed, correctly defines
the right wherever it is recognized, and it is understood to be
recognized in the law of Colombia.
Under the doctrine of accession it is held that if one built with his own
materials a house upon the land of another, the owner of the land
acquired by the right of accession the property in the building. Such is
the general principle, but it is by no means without exception. There
are many cases in which a man may own as personal property a building
erected upon the land of another. This has been held to be so even in
the absence of an express agreement between the owner of the land and
the builder of the house. But it appears to be as unquestionable as it
is just and reasonable, that where it is understood and agreed that the
title to the building shall not be merged into the title of the land,
the property in the two things remains distinct and the building is
treated as personalty. In this case the owner of the land waives his
right of accession, and, having waived it, he can not in turn claim the
benefit of it. Such a waiver appears to have been made in the case of
Mrs. Smith’s houses.
I have in my possession and at your excellency’s command a blank form of
the lease which was made by the Panama Railroad Company to Mrs. Smith.
The sixth article of the lease, translated, reads as follows:
“It is also a condition of this contract, that on its expiration, whether
by the ending of the term of five years above fixed, or by its having
been terminated or rescinded before that term ____, the lessee, _____,
binds himself to return to the company the leased land, clearing it
entirely, the expense of the operation of pulling down the house and
removing the materials being upon the lessee.”
This seems to contain a clear renunciation of the right of accession.
It is also observed that in the fourth article of the contract it is
provided that if the lease shall be determined by reason of the failure
of the lessee to pay his stipulated rent, any building which may have
been erected shall remain at the disposal of the competent judge, in
order that it may be subjected to the sentence which he may
pronounce.
And the fifth article provides expressly that the lessor shall in no case
have a right to the improvements made on the land leased.
These various provisions appear completely to have destroyed the right of
accession and to have placed the houses erected by Mrs. Smith in the
category of movable property, which the consul had a right to take
possession of and sell.
In this connection, I desire to say that a copy and translation of that
portion of your excellency’s message to Congress relating to this
question have been transmitted to Washington for the examination of the
United States State Department. After due and careful consideration of
the arguments therein advanced, my Government is unable to yield its
assent to the view therein maintained, and believes that the foregoing
observations constitute a complete answer to the arguments therein
presented.
I have delayed to make a written representation of this case on account
of the multifarious duties imposed upon your excellency by reason of the
sessions of Congress. In doing so at this time permit me to express the
hope that this so important matter may receive your excellency’s serious
and early attention.
I avail, etc.,
