Mr. Abbott to Mr. Blaine .

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.,

John T. Abbott.
[Inclosure 1 in No. 275.]

Mr. Abbott to Señor Suarez .

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.,

John T. Abbott.
[Inclosure 2 in No. 275.—Translation.]

Señor Suarez to Mr. Abbott .

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.,

Marco F. Suarez.