The writers were advised that instructions were unnecessary and you would
undoubtedly confer with the counsel when he should call on you.
[Inclosure.]
Messrs. Nicoll, Anable
& Lindsay to the Secretary
of State.
31 Nassau Street,
New
York, July 29,
1904.
Sir: Referring to previous correspondence
in relation to the renewal by the Venezuelan Government of its
attempt to dispossess the New York and Bermudez Company of its
property in Venezuela, we have the honor to advise you that only
yesterday the company received a cable from the manager of its
Caracas office, stating that he was in possession of information to
the effect that a suit would be brought against the company on
account of its alleged assistance to the Matos revolution. This
information confirms our view that the suit reported already to have
been brought is for the rescission or revocation of the Hamilton
concession solely by reason of the company’s alleged noncompliance
with some of its terms.
As we had the honor to point out in our letter of the 13th instant,
the final decision rendered by the high federal court in the
Warner-Quinlan suit, as late as the 28th of January [Page 927] last, a copy of which decision was
filed with the Department on the 29th of February, expressly and
clearly confirmed the subsisting validity of the Hamilton concession
and the company’s full and absolute rights thereunder. Not only is
this the case, but even if the company had failed to fully comply
with the terms of the concession, and if no judicial decision
affirming its validity had ever been rendered, the situation now
existing would be substantially the same as that which has
notoriously existed, with the full knowledge and approval of the
Venezuelan Government, certainly for nearly twenty years. As the
records filed with the Department clearly show, if the company is
not now complying with all the terms of the concession it never has
complied with them, and as the Venezuelan Government has during all
the time above mentioned acquiesced in the situation it would be
estopped and precluded from making the company’s alleged default the
basis of the present proceeding to dispossess it of its
property.
But, even assuming that the Venezuelan Government were not precluded
by its own previous conduct, as well as by the decisions of the
Venezuelan courts, from taking such proceedings as it now appears to
be devising, we are at a loss to conceive upon what principle it
could be justified in dispossessing the company of its property in
advance of a decision in those proceedings. The property is situated
in Venezuela and is incapable of running away. The company has not
committed, nor is it aware that it is charged with having committed,
any default that would place it in the category of a bankrupt.
Besides, we have received brief telegraphic advices from counsel in
Venezuela that the entire proceedings are palpably illegal. On the
whole the inference appears to be inevitable that the present design
of the Venezuelan Government is precisely the same as that which was
blocked by the representations of this government in 1901—namely, to
seize the company’s property without warrant of law and remit the
discussion of the legality of the seizure to the distant future.
What that would mean it is unnecessary to point out. The judicial
proceedings would be recurrently complicated and indefinitely
prolonged, while the waste and spoliation of the company’s property
and the injury to its interests would be enormous, complete, and
practically irremediable.
We understand that the Department, in its cable of the 26th instant,
instructed Mr. Bowen to request the Venezuelan Government to explain
the legal grounds of its recent action and the precedents, if any,
therefor. Any response which the Venezuelan Government might make to
this request no doubt would be so drawn as that if it did not
disclose a legal justification of its action would at any rate
conceal its defects. In view of this fact and of the urgent
circumstances of the case, we beg leave to submit to the Department
whether it would not be advisable further to instruct Mr. Bowen to
confer with the company’s counsel in Venezuela, whom the company
would instruct to call upon him for that purpose. We can not conceal
our apprehension that unless the Venezuelan Government is made
plainly to understand that its renewed attempt arbitrarily to
despoil the company of its property will necessarily be attended
with serious responsibilities. It will forestall preventive measures
by quickly consummating the summary course on which it has
entered.
Very respectfully, yours,
Nicoll, Anable &
Lindsay.
