On the 24th instant I received your No. 145, of January 16 ultimo, approving
the tenor of my communication.
On the 11th instant I received from this Government a reply to my note, a
translation of which is herewith inclosed. The translation forwarded is
believed to express the idea of the minister’s reply; but I have not
expended much time upon that portion quoted from Dalloz, since you
undoubtedly have the original, to which reference should be made. With this
exception, I think the translation may be depended upon.
It will be perceived that the foreign office continues to dissent in the most
radical manner from the views presented by the Department.
It will be unnecessary to weary you with any comments upon the learned
argument to which the minister has felt inclined to affix his signature. I
have deemed it prudent to refrain from attempting any reply thereto, in view
of the fact that you will undoubtedly desire to consider, before further
action, that portion of the document which says in effect that Colombia will
denounce the convention rather than accept the interpretation contended for
by the United States, a course which would involve the termination of the
general treaty of 1846. This position might easily be construed as notice to
the Department that the presentation of further considerations in support of
our claim will be ineffectual, even if Colombia should thereby be compelled
to admit their validity. If such be the intention of this Government, it is
entirely consistent with its every act since the discussion of this matter
arose.
Of the manner in which it has responded to the extremely cautious and
friendly attempts of the legation and the Department to secure a candid
discussion of the questions involved without wounding the susceptibilities
of Colombia or prejudicing the original situation of the parties interested,
you are fully informed in my previous dispatches.
The fact that certain officials of the foreign office have nourished, their
opposition to our claims with an almost passionate fondness has always been
well known to me. But I have cherished the hope that a calm and
dispassionate consideration of the case by the minister himself would lead
to an acquiescence in our position, so evidently sound as to command the
unqualified approval of every interested foreign representative at this
capital.
It will be noted that in his report to Congress upon the Smith estate,
transmitted with my No. 120, of August 22 last, the minister gave notice
that, on account of the great delays sometimes occurring in the settlement
of the estates of foreigners, reforms in the existing laws would be
proposed.
The foreign representatives here whose countries are wholly (as in the case
of France) or partially (as in the cases of Germany and Italy) without the
supposed advantages of treaty stipulations conceding consular powers in the
matter under discussion presented to the foreign office their views of such
modifications as they hoped might be recommended. They earnestly dissented
from certain provisions of the proposed law and repeatedly urged a
reconsideration on the part of the Government.
Depending, as we do, upon a plain treaty stipulation to regulate the
settlement of the estates of our citizens, I declined to manifest any
interest in the proposed changes and refrained from making any suggestions
in regard thereto.
But I am informed that the representations of my colleagues were entirely
without effect, and that the law passed as originally framed in the foreign
office. I forward a copy of this law, but hardly regard a translation
necessary. Its chief aim and purpose is to render more explicit and
mandatory the duty of local authorities to assume jurisdiction over the
estates of deceased foreigners. It has the merit of attempting to provide
more carefully for the preservation of the property of the deceased. The
most commendable provision is the reduction of the time when the final
settlement of an estate may be hoped for from four to two years. A most
objectionable provision to my colleagues is that subjecting the proceeds of
an estate to the order of the local judge having jurisdiction thereof. I
bring the foregoing suggestions to your notice to show the evident
determination of the Government not to yield its control over the estates of
deceased foreigners, nor to listen to any modifications proposed by other
interested nations. On the whole, however, the law will probably facilitate
the final settlement of estates.
Returning to the communication of the minister, I call attention to his
statement relative to the action of Great Britain in the matter of the
subsidiary labor tax. A perusal of my previous dispatches and in-closures
relative to this matter will, I think, show that Great Britain only
consented not to oppose the interpretation contended for by Colombia, given
certain conditions, but never agreed to the restrictive interpretation as
stated in the minister’s note. I further call attention to the claim that
custom, in a measure, makes the rule of interpretation. Various cases are
cited in which this legation has acquiesced in the jurisdiction of Colombian
courts over the estates of our citizens, deceased intestate. Before speaking
of the individual cases mentioned, I would say that I can produce scores of
instances since 1850 where American, British, and German consuls have
settled the estates of their fellow-countrymen dying here, with no objection
whatever on the part of the authorities. My information is that the cases in
which the local authorities have intervened have been rare in comparison
with the whole number of decedents. It is only recently that the Government
has begun to insist upon taking jurisdiction in such cases, although I am
not aware that it has ever admitted officially in any way anything which
would militate against the position now assumed.
The first case cited is that of Jacinto Rodriguez, who is said to have died
in Rio Hacha in 1853. On an examination of the legation records, I find that
on December 5, 1859, Mr. Jones, our then minister, in a note to the foreign
office, said:
The note also requests that collections made be forwarded to Boston for the
widow of the deceased. The previous correspondence which had evidently taken
place is not of record. May 18, 1860, Mr. Jones, in a note to the foreign
office, said:
This is all I can find about this case. Whether we had a consul at Rio Hacha
from 1850 to 1860 I am uninformed.
It will be noted that the above is the only case cited by the minister which
occurred during the existence of the “Confederation of New Granada,” the
Government with which the convention was concluded. All the other cases
occurred during the time of the “United States of Colombia,” when the
centralized form of the New Granada Government had given way to the system
of independent States. In this connection, I suggest that it would be
desirable for me to know whether the Department is of opinion that the
consular functions ceased or not during the time of the “United States of
Colombia” and whether it is considered that the States of the United States
erected since the date of the convention stand on the same footing as those
then existing.
The next case named is that of Frederick E. Gilbert in 1865, the
correspondence in which will be found in Mr. Burton’s No. 215 to Mr. Seward,
dated January 26, 1866, and in dispatches therein referred to.
The correspondence in the case of Carlos Hoffman will be found in Mr.
Burton’s No. 216 to Mr. Seward, dated January 28, 1866.
That in the case of Martin P. Morris will be found in Mr. Burton’s No. 231 to
Mr. Seward dated May 3, 1866.
The case of Gustavus Wall occurred during the term of Mr. Hurlbut. After a
careful search I am unable to discover a single one of his letters to this
Government among the archives of this legation.
The case of Alexander Henry is fully explained in my No. 121, of August 22,
1890.
The British and German legations take great interest in the result of the
discussion of this question, since by reason of the favored-nation clause
England and the Hanseatic cities are entitled to the benefits of our
convention.
I think that in the light of past events all interested parties are convinced
that there has never been any intention on the part of Colombia to yield to
any theory of intrepretation that would invest consuls with any rights or
privileges not granted by Colombian statute law. The intimation of the
minister of a possible denouncement of the convention seems to confirm this
supposition.
I would further suggest that a statement, showing in what parts of the United
States Colombian consuls are deprived by reason of State laws of the
privileges stipulated for in the convention, might be interesting.
[Inclosure.—Translation.]
Memorandum.
The local judges of the department of Panama have taken cognizance of the
settlement of the estate of Susannah Smith, a citizen of the United
States of America, who died in Colon without leaving a will.
The Government of the Republic authorizing, as it has authorized, this
judicial proceeding has taken into account reasons which still subsist,
notwithstanding the contrary opinion set forth in the name of his
Government by the minister of the United States in his note of December
16 last.
The course of the judges, undoubtedly correct in the light of
international law, which subjects every foreigner to the local
jurisdiction of his place of abode or domicile, and in the light of the
Colombian public law, which contains the same principle in article 10 of
the national constitution, is also so considered in relation to the
stipulations of the existing consular convention between this Republic
and the United States.
Article 3 of the consular convention, which is that which touches the
present case; reads thus:
“Article III. 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. Whensoever
there is no consul in the place where the death occurs, the local
authorities shall take all the precautions in their power to secure the
property of the deceased.”
In the opinion of the Government of the United States, the contracting
parties, in agreeing upon the above-quoted article, did not contract
equal obligations, either at the time when the treaty was signed or for
the future. According to that opinion, this Republic ceded absolutely
and unconditionally to the consuls of the United States of America a
very considerable part of its jurisdiction, while the United States did
not promise an equal privilege to Colombian consuls, except on condition
that the laws of the integrant States of the North American Union might
not forbid it.
The basis of this opinion is derived from the form of Government which
New Granada, to day Colombia, had at the time of the making of the
consular convention.
Since that form of government was a centralized one, it is said that the
phrase “those States” which appears in the article can only have
reference to the North American Union; all the more so, since the same
article speaks of the special legislation of those States, a thing
incompatible with the circumstances of the Republic in 1850.
The argument would be conclusive if the stipulation had referred solely
to the state of things at that time, and if it had excluded the
subsequent changes and modifications which might occur in the
legislation and form of government of the contracting parties.
Since this was not the case, but rather the contrary, the reasoning
necessarily loses its force.
[Page 476]
If the clause had said, e. g. “This privilege
shall only he operative in those States whose special legislation allows
it,” (permite) there would he no doubt but that
New Granada had made the concession just as the Government of the United
States claims, because it would have referred exclusively to the States
and special legislation then existing; but, as the clause provides that
the privilege shall only take effect in those States whose special
legislation may allow it (permite, a word which
has a signification applicable to the future), it must be admitted that
the contracting parties not only took into account the existing
circumstances at the date of the treaty, but also those of the future.
The foregoing is further supported when it is considered that the United
States, in the applications which it may have made or may have been able
to make of the above-examined stipulation, has been obliged to take into
account the legislation of the States created in that country since the
year 1850.
If the contrary were true, the convention would appear to have been
framed, not upon any just or scientific principle, but upon mere
caprice, since it would lay down a rule for certain circumstances
existing at one period and would lay aside that rule under identical
circumstances which might present themselves in the course of time.
Now, then, if natural reason, founded in the letter itself of the
convention, leads to the conclusion that the conditions of the referred
to privilege ought not to be limited to the state in which things were
in 1850, the treaty could not have stipulated unequal obligations.
Therefore, the form of the Government of New Granada having been
modified by the creation of Federal States, they ought to be
comprehended in the clause under consideration, since the convention
does not confine to one of the two parties the supposition of
federation.
The federation of this Republic was changed in its turn, and the separate
States with their corresponding laws disappeared, and one single State
or nation, called the Republic of Colombia, became their heir. It being
a rule of law that variations in the form of government of states or
nations do not alter the rights and obligations derived from public
treaties, it is entirely reasonable that if the United States of
Colombia had need to consult the codes and special laws, in order to
concede to the consuls of the United States the privilege in question,
the Republic of Colombia, in granting the same privilege, must equally
examine whether it is so authorized by the general legislation of the
country.
It is necessary to remember, however, that this case, by a series of
events which have occurred relative to the conditions of the privilege,
and on account of the reading of the clause, which may not be clear to
everyone, is among those which the law of nations classes as doubtful.
Therefore, it must be interpreted in harmony with the practices of
nations, the dictates of natural law, and the opinions of publicists who
are authorities.
II.
According to the universal doctrine, international treaties are contracts
of good faith, on account of which their scope is determined, more than
that of any other agreement, by reasons of equity, and not by arguments
of strict right, which might be founded in the obscurity or deficiency
of language.*
In the present case equity demands that the convention be interpreted so
that it may produce equal obligations, as the Republic claims, instead
of advantages in favor of one party alone, as the Government of-the
United States maintains.
This is frequently applied in the relations of states. We will cite, not
to go far back, what has recently occurred in respect to article 16 of
the existing treaty between Colombia and Great Britain.
That article, considered in its grammatical sense, exempted British
subjects from the payment of certain general contributions authorized by
international law and by the constitution and local laws. This Republic
expressed to the Government of Her Majesty that in its opinion it was a
case for a restrictive interpretation of that stipulation, since in any
other manner results would be produced contrary to equity, and the
British Government agreed to such interpretation.
The above rule is akin to that which considers the results of an
interpretation as a means of determining the most reasonable and
convenient interpretation. Generally the interpretation which produces
the most humanitarian and most advantageous effects for both parties,
and those most in harmony with public law and with the legislation of
the contracting states, ought to be preferred to that which gives
opposite results.
If the clause in question were interpreted as the Government of the
United States claims, it would impose upon this Republic an obligation
altogether too onerous, which would affect unfavorably the
administration of justice in the country and would eventually vest in
the citizens of the United States a privilege repugnant to the laws and
the constitution of this Republic.
[Page 477]
On the contrary, the interpretation sustained by Colombia avoids this so
serious inconvenience and harmonizes with the universal practice
relative to consular rights.*
To-day consular attributes may be considered as fixed by custom and by
the treaties of civilized nations; the exaggerated privileges with
which, in another time, some nations undertook to invest them have been
laid aside. Especially in the matter of the settlement of estates these
privileges are seen to be exceedingly prejudicial, since it often
happens that the public treasury or some native or foreign creditors may
have claims against the estate of the deceased.
To define and make effective these claims it is indispensably demanded
that the judicial authorities should intervene, determine the case, and
pronounce sentence according to law, since in any other manner those
claims might suffer injury.
On the other hand, if the doctrine which the United States defends in the
present case were that ordinarily received, it would result that the
transmission of personal property of foreigners dying intestate to their
successors or heirs, would take place in an entirely private manner, and
without the judicial character which seals and sanctions the acquisition
of rights in Christian states.
It thus follows that the rule of interpretation which teaches that these
interpretations contrary to the principles universally accepted by
civilized peoples ought to be rejected is applicable in favor of the
interpretation maintained by Colombia.†
The inconveniences of the interpretation defended by the Government of
Washington would be multiplied by the fact that other nations with which
this Republic cultivates relations are by virtue of treaties in the same
position as the United States respecting the prerogatives and rights of
consuls. As a matter of fact, the most-favored-nation clause is found to
apply to this matter in the existing treaties between Colombia and
Chile, Ecuador, Great Britain, Holland, and Portugal, and in those which
may be held to exist with the cities of Lubeck, Bremen, and Hamburg, and
with the state succeeding the ancient Kingdom of Sardinia.
Such great inconveniences would oblige this Republic to take steps to put
an end to a compact which would eventually produce a profound revolution
in its legislation, and to leave its cordial and valued relations with
the United States to be governed by those general principles which rule
in the absence of treaties.
Fortunately the necessity of going to this extreme appears remote, since
the United States, the same as other interested nations, have
practically given to the stipulation under consideration an
interpretation which entirely conforms to that which the Colombian
Government defends.
This has been the case as to the settlement of various estates consisting
of personal property of citizens of the North American Union dying
intestate in Colombia, which have been submitted to local jurisdiction
with the knowledge and acquiescence of the Government of the United
States.
Certain cases are cited as examples:
In the year 1853, on the death in Rio Hacha of the United States citizen
Jacinto Rodriguez, the probate proceedings took place before the judge
of that circuit.
The legation of the United States, in charge of the Hon. George W. Jones,
received from the secretary of foreign affairs documents relating to the
cause, and confined himself to asking that a sum of dollars might be
delivered to the attorney of the heirs, and that the settlement of the
estate might be hastened.
The Hon. Allan A. Burton, minister resident of the United States, in his
note of May 8, 1865, in thanking the Colombian Government for the
intervention of the authorities of Cauca in the management of the
effects which remained after the death of Frederick E. Gilbert,
expresses the opinion that the latter was a debtor to Colombian citizens
and asks that the local authorities may cause the estate to be
administered.
The same representative solicited of the Government of the Republic, July
10, 1865, a report upon the property of Carlos Hoffman, deceased.
October 13, 1865, and January 10, 1866, he acknowledged receipt of the
reports which had been transmitted to him. The property amounted to
$153.50.
April 20, 1866, he acknowledged receipt of the report which the Colombian
Government had sent him relative to the effects belonging to the estate
of Martin P. Morris, who died in Cali, and expresses his thanks for the
intervention of the local authorities in the matter.
In his note of April 12, 1870, the Hon. S. A. Hurlbut, minister resident
of the United States, requested that a report might be asked of the
competent local authorities as to the value and kind of the property,
debts, and credits of the estate of Gustavus Wall, who died in Socorro.
In conclusion, he added: “The undersigned also requests that the papers,
letters, and other private documents of the deceased which [Page 478] may not be necessary for the
settlement of the estate and of any value to his kindred may be
forwarded to this legation.”
The Hon. V. O. King, chargé d’affaires, in acknowledging receipt, July
10, 1886, of the note in which the legation of the United States was
informed that Mr. Alexander Henry had died in Handa intestate, did not
question the right of this Republic to intervene in the settlement of
the estate of his fellow-citizen. Referring to the instructions sent to
the local authorities to proceed according to the provisions of the law
in such cases, he said: “I know of no facts to justify any other course
than that pursued in the case, and therefore for the present fully
acquiesce in your excellency conclusions.”
The same is applicable to the other nations whose rights, as above
explained, might be compared, as to the prerogatives of consuls, to
those which the Government of the United States may have, since not one
has made any objection to the execution of the Colombian law in the
sense which the Republic upholds.
This conduct constitutes what is customarily called “usual
interpretations,” whose authority is decisive in doubtful cases.*
III.
As the stipulation in question requires, besides the authority of the
local law, another condition in order that the consular prerogative
should obtain, which is that the property should be personal, it remains
to determine the character which under this view is possessed by the
houses left by the late Mrs. Smith.
According to the civil code of the Republic, which is the law applicable
to the case in point, houses are real estate, since in them is realized
the nature of this class of property. Although the denominations
“movable” and “immovable” signify literally that which is susceptible
and that which is not susceptible of being moved, these terms, as is
obvious, are rather the equivalents of objects which are not attached to
the soil and of those which are so. A house like that left by Mrs.
Smith, whatever may be its materials, and although it may be built upon
the land of another proprietor, fulfills that condition; therefore, it
must be considered as real estate. It is so declared by the Colombian
law, and where the law does not establish distinctions there is no room
to make them.
It is true that the houses were perhaps designed to remain for a limited
time upon the land of the Panama Railway Company, but it is also true
that property which is found in a similar condition—for example, growing
crops and produce—is classed as real estate. In this respect Dalloz
says, in his great dictionary of jurisprudence: “It seems to us that
they go too far (certain authors) when they exact as a condition of the
immovability of an edifice that its incorporation with the soil may have
been made in perpetuity. In our opinion here is inconsiderately applied
to things declared real by their nature a rule established only, as we
shall see presently, with respect to what are real by reason of the uses
for which they are designed. We can not admit, for example, that a
building, the foundations of which rest upon the ground, lacks the
character of realty from the mere fact that, in the mind of the
proprietor by whom it was constructed, it may only possess a temporary
character, or may be replaced some day by another larger or more
substantial structure. The intention of the proprietor is indeed worthy
of consideration when it is attempted to fix the character of an object
which, being naturally personal, only obtains by virtue of such
intention a fictitious immovability; but with respect to a building the
law takes into consideration exclusively its nature and not the will,
often uncertain, of the proprietor.Ӡ
It is equally true that the system of construction of houses permits,
perhaps, that they should be taken apart and transported from one point
to another, but being attached to the ground their removal would have to
be effected by forcing, in some manner, such connection, as in the case
of the flags of a pavement or the tubes of an aqueduct, which the civil
code classes as real estate, even when they are essentially removable.
On the other hand, by the same argument, it would be possible to
demonstrate the personal character of whatever building, since the
progress in mechanics promises the means for removing even the
heaviest.
The fact that the owners of the house and of the land are distinct does
not destroy the character of the building. It is not deemed that in this
case the old principle res salo cedit is
inapplicable, and that for the same reason there is no room for
accession, since the lease forbids it. The doctrine of Kent, cited in
the note of the minister, is unobjectionable; but the case is not
decided by that, since accession is not always the lawful criterion for
determining the character, as realty, which a [Page 479] thing may possess. This character is based upon
the nature itself of the buildings or, it may be, upon the circumstances
of their being affixed to the soil.
The opinion of Dalloz is also conclusive as to this proposition:
“A building does not cease to be real estate even when it may have been
constructed by another than the owner of the soil. M. Deloincourt has
expressed a contrary opinion, founded upon the fact that the building,
not being real estate, except as accessory to and a part of the soil,
can only belong, as such and while not demolished, to the proprietor of
the soil. But the reasonable answer is, in the first place, that a
building belongs to the owner of the soil, although it may have been
constructed by another (C. Cir. 553–5), and in the second place that it
is not correct to claim that a building is only real estate in so far as
it belongs to the owner of the soil; indeed, on the contrary, it can not
be denied that an owner may well sell his house, reserving the ownership
of the land upon which it is built.”*
Neither can we accept the distinction between the character of the rights
of the owner of the house and that of the rights of the proprietor of
the soil, calling personal the first and real the second, pertaining as
they do to the same object. Such a distinction, besides being unfounded
and too subtile, would in the present case entail grave inconveniences.
The Government of this Republic should consider the well-known character
of these houses as real estate, without undertaking to make distinctions
which pertain to courts, which are the proper authorities to decide
whether the houses which Mrs. Smith left belong to the owner of the soil
or to the heirs, assigns, or purchasers thereof. To accept the practical
effects of that distinction would be in a certain way to prejudge a
point the decision of which belongs exclusively to the courts.
As to this point the opinion of Dalloz is also decisive, who, after
having considered various decisions of certain tribunals upon the same
question, says:
“Nevertheless we are inclined to adopt the decision of the supreme court
as being conformable to article 518, which declares generally that
houses are real by their nature, without distinguishing between the case
of those which may be constructed by the proprietor of the soil and
those which may have been built by another. In order to create an
exception to so absolute a rule, very serious motives not within our
reach would be required. Undoubtedly he who has built upon the land of
another has rights distinct from those of the proprietor of the soil;
undoubtedly these rights will be made definite according to the will of
the latter, either by a pecuniary indemnification or by removing the
materials, what is equivalent in both cases to something purely
personal; but from this it does not follow that the building, while it
is in existence and while he who built it retains possession, is as to
the latter personal property also. No, this building is real, as the law
says. The right which the builder has to enjoy it is therefore a right
in realty. This right will be transformed later into a right in
personalty, since then its purpose will be changed, being applied not
now to a building, but to materials or to an indemnity; but at present
it partakes of the nature of the thing upon which it stands, which is
real, and if the builder conveys it to a third person the grant which
takes place is also in fact real.” And later he concludes: “The
buildings erected upon the soil of another are real estate, not only
when the proprietor of the latter has the right or is obliged to retain
them in virtue of law or by contract at the expiration of the enjoyment
of the builder, but also when the latter has expressly reserved the
right to demolish them and take away the materials, so that it results
from the judgments of the supreme court already cited that in both cases
it has decided to the same effect, and indeed we do not see why the same
rule should not be applied to both hypotheses.Ӡ
Demolombe explains this whole doctrine in the following terms:
“It is necessary to include under this heading of buildings, employed in
article 518, all constructions and works, whatever they may be,
superficial or subterranean, of whatever material or form, or for
whatever purpose, from the time that such works are incorporated with
the soil and become an integrant part thereof, whether they be
dwellings, barns, storehouses, walls or inclosures, excavations, etc.,
it does not matter.
“There is no object in inquiring by whom, nor with whose funds, nor with
what materials the building or work has been constructed; whether by the
owner of the soil itself, or by a lessee, tenant at will, or any other
holder.
“The building once constructed is real estate by its nature; that is to
say, in a manner absolute and independent of the character of the
builder. Undoubtedly, when the proprietor builds upon his land with
materials of another, or when an individual builds upon the land of
another with his own materials, there is room upon the part of both for
an arrangement, and now we shall see that, in fact, the Code Napoleon
has foreseen these two hypotheses. But as to the character of the
building itself, [Page 480] viewing it in
its nature as realty, the principle remains the same always and in every
case.”*
These opinions are very probably correct, not only on account of the
evident validity of the reasons upon which they are founded, and the
great respectability of their authors, but, also, because they relate to
legislation which is the source of the civil code of this Republic. If
any tribunal or jurisconsult shall have given a different opinion, it is
certain that their moral authority will not have the force of that of
the supreme court of France, nor of that of the learned expositors who
support the opinions of the ministry for foreign affairs. But if
uniformity of opinion should be demanded, a thing which can not be
demanded in these matters, it could be admitted, by way of hypothesis,
that the character of the houses left by Susannah Smith is doubtful—a
concession the same as that which was made respecting the meaning of the
words of article 3, clause 10, of the consular convention.
On this supposition the considerations set forth in No. 2 of this
memorandum, founded upon the rules which the law provides for
interpreting doubtful clauses of treaties, will become at once
applicable.
Bogotá, February 10,
1891.
