Mr. Beaupré to Mr. Hay .
Bogotá , April 23, 1902 .
Sir: With reference to the expropriation of the property of American citizens by the Colombian authorities, I desire to submit for the consideration of the Department, in connection with “the most-favored-nation” clause in our treaty of 1846, the following extract from the treaty between Great Britain and Colombia of February 16, 1866. Article XVI reads as follows:
The subjects and citizens of each of the contracting parties in the dominions and possessions of the other should be exempted from all compulsory military service as well as from all contributions, whether pecuniary or in kind, imposed as a compensation for personal service, and finally forced loans and military exactions or requisitions.
Article 3 of Colombian law 56 of 1890 says:
In the event of the presumption alluded to in the preceding article (grounds of public utility of expropriation) not being refuted, the expropriation will be decreed against whomsoever it corresponds, be it private individual, society, corporation or community, or political or municipal entity, save the rights, exemptions, or immunities recognized in laws or in public treaties.
I am not citing the foregoing in view of any particular case, but rather as general information for the Department.
Would it not seem that the said Colombian law 56 precluded the plea of legality for expropriations on the ground of municipal law? If treaty provisions prohibit expropriations, could the plea of urgent military necessity be interposed as justification in the absence of a state of war, even although military operations were in progress against insurgents, particularly when the military necessity, if any, was remote, and the articles taken consisted of mules and general equipment for an army not actually engaged with the enemy, being in fact strictly private property seized in a district occupied by and under the control of the Government authorities, and never having been under the jurisdiction of the insurgents?
Finally, is the intendment of the treaty quoted sufficiently clear to warrant its construction as an absolute prohibition of expropriation?
I am, etc.,