Mr. Abbott to Mr.
Blaine.
Legation of
the United States,
Bogotá, October 17, 1891.
(Received November 27.)
No. 275.]
Sir: I have received Mr. Wharton’s No. 193, of June
17 last, relative to the settlement of the estate of Mrs. Susannah
Smith.
Upon my return to my post in August last the acting minister for foreign
affairs introduced this subject during a friendly conversation at this
legation. He asked me if I did not think it would be well to submit the
whole question to the decision of a friendly arbitrator. I replied that I
thought it would be an excellent idea, and that any reasonable proposition
of that character made by the Colombian Government would be transmitted to
Washington with my approval. I said that I had instructions to answer his
last note, but I acceded to his request to delay until he could consider
further the question of arbitration.
About two weeks after this conversation I asked the minister whether he had
formulated any basis for a proposition of the character named. He replied
that he had concluded that no arbitration could be proposed or accepted,
because the question as to the character of the houses could only be decided
by the courts of Colombia; that he might agree to an arbitration of the
first point if it were not so intimately connected with the second. I
expressed my regret at his conclusion, and we had some pleasant and friendly
conversation, in which I endeavored to dissuade him from his expressed
views.
Some weeks later I sent the clerk of the legation to represent again to the
minister my desires in the matter, hoping that a full statement thereof in
good Spanish might present to his excellency some hitherto unconsidered
phase of the situation which would lead to a modification of
[Page 483]
his views. The minister in that conversation
seemed impressed with the idea that an arbitration of the second point would
be an admission of the right of foreign powers to interfere in legal
questions which are only determinable by Colombian courts, and he refused to
consider further the question of an arbitration.
I subsequently explained the case to the minister of Government, Dr. Roldán,
but no result came of it.
The local judge then wrote a note to Vice-Consul-General Boshell, requesting
him to unite with the court in the choice of a “curador” for the estate of
Alexander Henry. As this case, with which you are familiar, still continues
to be cited against us in the Smith case, I was unwilling to allow Mr.
Boshell to take any part in the matter, and directed him to ask the judge
the precise date when the judge of the second civil circuit of Tequendama
assumed jurisdiction in the cause.
I felt that the time had then arrived to forward to the foreign office the
substance of the Department’s instructions, which I did upon October 2.
I took the letter to the minister personally and asked if there remained any
hope of an agreement of any kind looking to a final settlement of the
matter. He replied that he saw none and again repeated his views, whereupon
I delivered to him my note.
I have to-day received the minister’s reply. Copies of the correspondence are
inclosed.
The minister is fully aware of the difficulties sustained in settling the
estates of foreigners under Colombian laws, and proposes to present to the
next Congress a law which shall have been previously submitted to the
judgment of the diplomatic representatives here. I informed him that I could
not undertake to examine or pass upon any such law, since the United States
depends for its rights upon the stipulations of the consular convention, and
not upon Colombian laws which are or may be framed in avoidance of that
convention.
All my conversations with the minister have been most polite and friendly.
But our difference of views seems to be irreconcilable for the present.
This is to be regretted, as difficulties must necessarily arise between
consular officers and local authorities, which will be very
disagreeable.
I suppose that such troubles must result in the consuls yielding up the
possession of the estate in any given case to the local courts, as we could
hardly counsel forcible resistance to the constituted authorities. But, in
case of necessity, I shall instruct consuls not to join with local courts in
naming a “curador” under the Colombian statute, but shall leave the whole
responsibility upon the authorities of this country.
I should be pleased to have you reexamine my previous dispatches and their
inclosures of the laws and indicate whether you would approve this
course.
I am, etc.,
[Inclosure 1 in No. 275.]
Mr. Abbott to Señor
Suarez.
Legation of the United States,
Bogotá, October 2,
1891.
Sir: I have the honor to acknowledge the
receipt of the note of your excellency’s predecessor, dated February 10
last, in which I am informed that the Government of
[Page 484]
this Republic continues in its former
opinion respecting the settlement of the estate of Susannah Smith.
In the course of my conversations with your excellency’s Government up to
the 4th day of August, 1890, neither its representative nor myself had
ever intimated our respective views of the subject under consideration,
but had confined our efforts to arranging for a time when a full and
friendly verbal discussion of the case might be had.
Upon that day, however, the distribution of the biennial report of the
minister of foreign affairs to the Congress brought to my notice the
position which the Colombian Government had decided to assume, and
rendered the results of the proposed verbal discussion so problematical
that it never was undertaken.
The publication of the Government’s views had, however, prepared me to
read without surprise its adherence thereto, notwithstanding the reasons
presented in my note of December 16 last.
I have the honor to inform your excellency that copies and translations
of the note I now have the honor to answer, and of the memorandum
therein contained, have been duly forwarded to my Government.
In view thereof, I have to say that the Department of State has read the
said memorandum with not a little surprise and regret. The Department
desired, and that desire was repeatedly expressed by me to the foreign
office, a fall, frank, and friendly discussion of the question at issue.
The Department does not feel that it has succeeded in obtaining such
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
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 minister 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 my Government on the question under consideration are set
forth in my said note of December 16, 1890, to your excellency’s
distinguished predecessor.
A careful perusal of that note fails to disclose any passage from which
such an opinion can be deduced as that which is attributed to my
Government and combatted in the memorandum of the Colombian foreign
office.
It is true that I 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 of their
own on the subject of the administration of estates; but, as my
Government did not deem it material to enter into the merits of any
pretension that may have been heretofore made as to the rights of our
consuls, under the treaty to administer on the estates of their deceased
countrymen in this country, notwithstanding the legislation of Colombian
States, I said in that immediate connection, “But the rights of consuls
under that state of affairs are not now under discussion.”
In this relation, I further observed that “in the United States, just as
was formerly the case in Colombia, legislative power in respect of the
settlement of estates is vested in the 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.”
I was careful, in accordance with my instructions, not to draw in this
particular any distinction between the United States and Colombia.
After stating that the powers of our consuls under the laws of the United
States of Colombia are not now under discussion, I said: “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”—thereby expressly basing our present
claim upon that fact.
Under the new constitutional arrangement, by which the National
Government regained legislative power over the settlement of estates,
the competent national legislative authority passed a law on the
subject, and it was at this law that the objection of my Government was
directed as being in conflict with the treaty, for the reason, stated in
my note already quoted that by the treaty of 1850 the contracting
[Page 485]
Governments “bound themselves
in all places where they possessed the necessary jurisdiction to permit
consuls to exercise the functions in question.”
My Government regrets to have been compelled to say so much for the sole
purpose of disavowing an opinion that it has never held or
expressed.
The Department of State has not thought it 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 my 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.
My Government 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
unfrequently happens that provisions are inserted in treaties to meet
present exigencies, and in such 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.
My Government has no desire to follow the memorandum of the Colombian
foreign office in its discussion of the question as to the character of
the houses of Mrs. Smith on land leased from the Panama Railway Company.
That subject is fully covered in my former note. To attempt, as is done
in the said memorandum, to answer the argument of the United States 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 position taken by the Department of State. 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
certainly does not depend, as I stated it, upon the existence of
mechanical appliances for removing structures.
The Department of State has not ventured upon the task of considering
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
or logical one or a proper subject for arguments savoring of ridicule.
It has simply taken the law as it has always been and as it exists
to-day in Colombia, as well as in the United States. To attempt an
opposite course would scarcely be deemed a prudent thing and would be
more satisfactorily restricted to a discussion of what the law should be
rather than of what it is.
I avail, etc.,
[Inclosure 2 in No.
275.—Translation.]
Señor Suarez to Mr.
Abbott.
Republic of Colombia,
Ministry of Foreign
Affairs,
Bogotá,
October 15, 1891.
Sir: I have the honor to refer to your note of
the 2d instant, in which you have again been pleased to discuss the
question of the estate of Susannah Smith.
The Government of this Republic, which considers its interpretation of
section 3, article 10, of the existing consular convention between
Colombia and the United States to be equitable and correct, understands
that the Government of your excellency does not desire to continue the
discussion heretofore begun relative to this point.
Such discussion, indeed, would be without practical result, because, even
supposing that the interpretation defended by the Government of the
United States could be accepted by that of Colombia, the question of
determining whether the houses left by Mrs. Smith were real or personal
property would always be pending.
The determination of that point belongs exclusively to Colombian judges,
who have already decided it in accordance with the civil code of the
Republic. Such a decision as to the local law made by judges of the
country concerning things located in Colombia can not be revised by
diplomatic negotiations.
The tone which I ought to employ in this class of correspondence deters
me from commenting upon certain terms employed in the note I am
answering, which, however, I resent in the name of my Government.
I reiterate, etc.,
