Mr. Wharton to Mr. Abbott.
Washington, June 17, 1891.
Sir: I have to acknowledge the receipt of your No. 190, of February 26 last, in relation to the settlement of the estate of Mrs. Susannah Smith, a citizen of the United States, who died not long ago at Colon, and to the general question of the right of consuls of the United States in Colombia and of Colombian consuls in the United States to settle the estates of their deceased countrymen, including the taking possession and the sale of their personal or movable property.
It is scarcely necessary to say that the Department has read the memorandum of the Colombian foreign office with not a little surprise and regret. The Department desired—and its desire was repeatedly expressed by you to the minister of foreign affairs—a full, frank, and friendly discussion of the question at issue. It has not succeeded in obtaining such a discussion. On the contrary, it has received, in reply to its courteous representations, an argument in which its position is entirely misrepresented and of which the tone can hardly be considered as friendly or as conducive to a good understanding between the two governments. Under these circumstances it seems to be futile to continue the controversy, but the Department is unwilling to rest under the misconstruction to which it has been subjected without making a statement of what its position actually is.
In the first place, it is asserted in the memorandum of the ministry of foreign affairs that, according to the opinion of the Government of the United States, Colombia ceded, absolutely and unconditionally, to our consuls a very considerable part of her jurisdiction, while the United States did not promise an equal privilege to Colombian consuls, except on condition that the laws of the several States of the Union should not forbid it. It is alleged that the Government of the United States bases this opinion upon the form of government which Colombia (then New Granada) had at the time of the conclusion of the treaty; and, as that form was a centralized one, it is said that the United States maintains that the reservation respecting the laws of the States of the contracting parties applies only to the United States and not to Colombia.
The views of the Department on the question under consideration [Page 481] are set forth in its No. 67, of May 29, 1890. A careful perusal of that document fails to disclose any passage from which such an opinion can be deduced as that which is attributed to this Government and combated in the memorandum of the foreign office. While it is true that this Department, in the instruction referred to, adverted to the fact that at the time of the conclusion of the consular convention, in 1850, New Granada was a centralized government, and observed that later on, when the United States of Colombia were formed, the several States adopted legislation on the subject of the administration of estates, the Department declared that it did not deem it material to enter into the merits of the pretension of this Government, in 1871, that the consuls of the United States in Colombia had a right under the treaty to administer on the estates of their deceased countrymen in that country, notwithstanding the legislation of the Colombian States. In this relation the Department observed that “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,” and that the term “peculiar legislation” in the treaty “means simply the legislation of particular political divisions of the country possessing legislative power with respect to the subject-matter.” The Department was careful not to draw, in this particular, any distinction between the United States and Colombia, and it expressly declared that it based its present claim upon the fact that “in 1885 the United States of Colombia became the Republic of Colombia; the States were reduced to departments, and the most of their prior legislation became inoperative.” Under this new constitutional arrangement, by which the National Government regained legislative power over the settlement of estates, the Congress of the Republic in 1887 passed a law on the subject, and it was at this law that the objection of the Department was directed, as being in conflict with the treaty, for the reason, as stated in the instruction already quoted, that by the treaty of 1850 the contracting governments “bound themselves, in all places where they possessed the necessary jurisdiction, to permit consuls to exercise the function in question.”
The Department regrets to have been compelled to say so much for the sole purpose of disavowing an opinion that it has never held or expressed.
It has not been thought necessary to ascertain the particular States of the United States whose legislation forbids the assumption by consuls of the functions which they are authorized by the treaty of 1850 to assume. It is only necessary to say that treaties, being by the Constitution of the United States the supreme law of the land, Colombian consuls may everywhere exercise in this country the privileges with which the treaty of 1850 invests them, subject to the exception expressly stipulated in respect to the contrary legislation of separate States.
The Department has not contended, and does not now contend, that the treaty of 1850 is to be construed according to the precise conditions which existed in the two countries at the date of its conclusion. It not infrequently happens that provisions are inserted in treaties to meet present exigencies, and in such a case they are to be construed in reference to what existed at the time. But a general stipulation touching the settlement and possession of estates is in its nature continuous, and can not be confined in its operation to the particular circumstances existing at the time of its conclusion.
The Department has no desire to follow the memorandum of the Colombian foreign office in its discussion of the question as to the character [Page 482] of the houses of Mrs. Smith on land leased from the Panama Railway Company. The instruction No. 67, of May 29, 1890, covers the subject. To attempt, as is done in the memorandum of the foreign office, to answer the Department’s argument by saying that it means that the distinction between real and personal property must vary with the improvement of mechanical appliances for moving structures, is merely to exhibit misapprehension both of the law and of the Department’s position. The question of the right of accession, a right which the Panama Railway Company waived, is not conceived to be determinable by such a method of discussion. It surely does not depend, as the Department stated it, upon the existence of mechanical appliances for removing structures. But, waiving all this, it can scarcely be deemed a prudent thing to attempt to cast ridicule upon a distinction between movable and immovable property. Whatever purpose such an attempt may serve, it would be wiser to restrict it to a discussion of what the law is rather than of what it should be. It has not been the purpose of the Department to consider whether the effect which has in all times and places, and in all systems of law, been given to the mobility or immobility of property is a sound and logical one or a proper subject for ridicule. The Department has not ventured upon such a task. It has merely taken the law as it has always been, and as it exists to-day in Colombia as well as in the United States.
I am, etc.,
Acting Secretary.