All these, you will understand, are but suggestions for your guidance; and while the Department strongly recommends a policy of great caution and deliberation in this case, it can not undertake to give you definite instructions.

I am, etc.,

[Inclosure No. 3.]

G. L. RIVES, Assistant Secretary.

No. 42.]

Mr. Vifquain to Mr. Rives.

CONSULATE OF THE UNITED STATES, Colon, July 21, 1888. (Received August 3.) SIR: Your dispatch No. 30, dated June 28, relating to the estate of Mrs. S. H. Smith, was duly received; and, inasmuch as you leave everything discretionary with me, I will sell the houses, and for the following reasons:

The tenure of the lots by the Panama Railroad Company is uncertain. They may at any day pass into the hands of the Government. What the value of those lots will then be is a matter of conjecture; the rent, ground rent, being liable to enhance, while that of the houses decreases.

Then, also, there is a $4,000 mortgage, with big interest, on the houses. Then, again, it is quite an expensive affair to keep the houses in good repair, to pay the taxes and ground rent, not speaking of the trouble to collect rents, all of which the consul is responsible for without the least compensation.

You are rightly informed as to the high rents here, yet they are declining rapidly; but you are not rightly informed as to the character of the houses, nor as to that of the deceased. The former cost nearly $20,000; the latter was a most careless person in the management of her business. There is no will; the deceased herself admitted this before her death.

Your obedient servant,

VICTOR VIFQUAIN.

United States Consul.

[Inclosure 2 in No. 48.-Translation.]

Messrs. Gutierrez & Escobar to Mr. Abbott.

BOGOTA, December 11, 1890.

SIR: We are about to comply with the desire you were pleased to express to us verbally, that we should explain to you what there may be relative to the rights which foreign consuls formerly had, and now have, in this country as to the estates of their fellow-citizens, according to the ordinary laws solely, that is, laying aside the respective public treaties. We will refer especially to the former States, now departments, of Cundinamarca and Tolima.

Up to December 31, 1859, the Spanish legislation as it existed at the time of the independence was in force in those States in civil matters.

From January 1, 1860, until July 22, 1887, the civil code of Cundinamarca was in force in said departments, which contained these provisions:

"Article 595. If the heirs of the deceased upon whose estate it is necessary to appoint an administrator (curador) may be foreginers not residing in the State of Cundinamarca, the consul or vice-consul of the nation of these heirs, if there is one in the place of opening of the succession, may name the administrator or administrators (curador or curadors), who shall have the custody and administration of the property. "Article 596. The judge shall grant the administration (curadoria) to the administrator or administrators proposed by the consul or vice-consul if they be fit persons, and on the petition of the creditors or other persons interested in the estates another or others to [act with] the administrator or administrators, according to the amounts and situation of the property which may compose the inheritance.

"Article 1067. When a foreigner dies in the territory of the State without leaving a will nor heirs, the property of the estate shall be delivered to the consul or viceconsul of the nation to which the deceased belonged; but, that this may be done, it shall be necessary:

"(1) That 1 year shall have passed after giving notice of the death of the foreigners by means of three consecutive printed publications, and no person having presented himself who could, according to the laws of Cundinamarca, succeed to the estate of the deceased person or take possession of the property as executor under the will. But, whenever such person shall present himself, he shall have the right, if

there be no legal objection, to take possession of the estate, although the same may have passed into the hands of the respective consul or vice-consul, or may be subject to the disposition of the competent court, or under the care of an administrator of the unoccupied inheritance (herencia yacente).

(2) That the judge having jurisdiction in the manner provided for in this code, and with the assistance of the consul or vice-consul, if there be one in the place, shall make a judicial inventory of the property of the deceased and see that the legal fees and taxes are paid aud that the debts due from the deceased to citizens of Cundinamarca or of any other of the States of the Confederation are satisfied.

"There shall be made two certified copies of the judicial proceedings, which shall be sent to the minister of foreign affairs of the Government of the Confederation through the government of the State.

"Article 1068. The consuls and vice-consuls authorized to act as such in the territory of the State by the Government of the Confederation, to whom this code alone refers, in respect to the estates of their deceased fellow-citizens dying intestate in the State of Cundinamarca without leaving heirs in said State, may exercise the following functions:

"(1) To place their seals upon such documents and effects as the judge, by virtue of his office or at the solicitation of interested parties, may have previously sealed. "(2) To assist in appraisals, inventories, and other judicial acts in the settlement of the estate which the succession may require.

"(3) To nominate an administrator or administrators, who shall have the custody and administration of the property of the deceased, as provided in articles 595 and 596.

"The administrator or administrators to whom the judge may have granted the administration shall take charge of the same, and, in consequence thereof, shall have the care and administration of the estate, including books and papers, and thereafter the consul or vice-consul shall not have the power to demand the delivery to himself of the property of the estate, nor to intervene in the matter of the administration of such property, except that he shall have the right to demand that the administrator or administrators shall be held responsible, conformably to the laws of the State, for the abuse or the mal-performance of their trust.

"Article 1069. In all cases of which the preceding article treats, and especially in the making of the inventory, and in what relates to the security of the estate of the deceased, and to the rights of the Confederation or the State as to such property, there shall be observed the laws of the State, so far as the same are not opposed to public treaties celebrated by the Government of the Confederation which now are, or which may hereafter be, in force in the territory of the State."

The national civil code (codigo civil nacional) went into effect July 22, 1887. This code contains nothing analogous to articles 1067, 1068, and 1069 of the civil code of Cundinamarca above quoted.

Article 570 of the national civil code says:

"If the deceased upon whose estate it is necessary to appoint an administrator shall have foreign heirs, the consul of the nation of such heirs shall have the right to nominate the administrator or administrators, who may have the custody and administration of the property."

Article 571 of the national code is the same as article 596 of that of Cundinamarca, with the difference that the former mentions only the consul and not the vice-consul. According to articles 600, 601, €02, and 603 of the code of Cundinamarca, which are exactly the same as articles 575, 576, 577, and 578 of the national code, the curadores of property had no further powers than those of mere custody and preservation, those for the collection of the credits and the payment of the debts of those they represent, the alienation of perishable personal property, the alienation of personal property pertaining to the ordinary course of the business of the deceased, and the carrying on of actions at law and defenses of the same. Administrators of property can do no other acts without previous judicial authorization granted on account of proved necessity or utility.

We are, sir, etc.,

[Inclosure 3 in No. 48.-Translation.]

GUTIERREZ & ESCOBAR.

Messrs. Gutierrez & Escobar to Mr. Abbott.

BOGOTA, December 12, 1889.

SIR: We have studied with care the interesting legal question about which you have been pleased to consult us, and proceed to express briefly our opinion upon it. The question is, whether a building constructed by a lessee upon leased land should be considered, as to the said lessee, personal or real estate.

According to the general rule contained in article 656 of our civil code, things are real estate (inmuebles) which can not be transported from one place to another, as lands and mines, and "those things which adhere permanently to them, as buildings, trees."

Buildings are, then, according to that, real estate (inmuebles) by their nature. But it is a principle of jurisprudence that property by its nature immovable ceases to be real estate and is converted into personal property when it is considered, not in its actual state of union with the ground, but in the future state of distinct individuality which separation will give it, as when, for example, it is considered "as having to be demolished" (como habiendo de ser demolido), and therefore it is looked upon, not as a house, but as stones, wood, iron, etc.

So is regarded, as to the lessee, the building constructed by him upon leased land; and the reason for this is that the constructor does not in this case have a right to the building itself, as such, but rather the right to separate and carry away the materials which compose it in case the lessor may not be disposed to allow him what the materials may be worth, considering them as having been separated.

The cardinal point which has just been expressed, once noted, the question is transformed into this other: Does the right of the lessee constructor in the building pertain to personal or real estate?

According to article 667 of the civil code, rights and choses in action are considered personal property or real estate, according to the nature of the thing with which they are or are not to be used. So the right of usufruct upon real estate is real; so the right of the buyer to a delivery to him of a farm which he has purchased is real; and the right of a lender of money to its repayment is personal.

In our system (derecho) there is positive law outlined in the ancient maxim of Roman jurisprudence: "Actio quæ tendit ad mobile, mobilis est, actio quæ tandit ad immobile est immobilis."

In order to apply this rule, or rather in order to understand what is the object to which the right pertains, the proceeding is very simple, it being sufficient to inquire what it is that the owner or creditor can demand, or the object whose delivery or granting (prestacion) the "demandee" can be compelled to make. If the demandant can compel the delivery of real estate, his right is real; if he can only demand the delivery of personal property, his right is personal.

Applying this rule, it will be asked, then, in the present case, what can the lessee constructor require of the lessor, and what can the latter be compelled to deliver to the former?

The materials of the building, or their value, considering them as having been separated, and as both things are personal property, it is manifest that the right of the lessee has also this character.

That the lessee has no other right than that of carrying away the materials of the building, if the lessor does not wish to allow him what they would be worth after separation, is a thing about which there is no doubt, because the building which is not necessary to the preservation of the thing leased, but which increases its market value is evidently an improvement, and that is the rule given for "improvements" in article 1994 of the civil code.

In confirmation of the above doctrine, we quote below the opinion of Demolombe, who is, perhaps, the most profound of the commentators upon the French civil code, from which ours is taken.

[NOTE.-I omit the translation of the quotation from Demolombe.-J. T. A.] As a logical consequence of this doctrine, Demolombe concludes that when the constructor assigns his lease to a third person, with a right to the buildings which he has constructed, the object of the assignment is necessarily personal. But he notes that the court of cassation of France has decided to the contrary in numerous judgments.

Notwithstanding, Fuzier-Herman, in a later work than that of Demolombe above cited, entitled “Codes Annotés," after referring to the decisions of the court of cassation upon this subject, establishes clearly that in order that the right of the lessee to the buildings constructed by him upon leased ground, and therefore the assignment of the right, may have the character of real estate, it is necessary that the lessor shall have renounced his right of "accession," that is, the right to acquire the property in said buildings at the expiration of the lease (a circumstance which does not probably exist in the case which interests you), and that, lacking that renunciation, the buildings constructed by the lessee upon the leased land have, so far as relates to him (the lessee), the character of personal property, and can not, therefore, be hypothecated by the builder. (Vol. 1, p. 643.)

Your obedient servants,

GUTIERREZ & ESCOBAR.

No. 42.]

Mr. Blaine to Mr. Abbott.

DEPARTMENT OF STATE,
Washington, January 9, 1890.

SIR: Complaints having reached the Department in regard to the seizure of American vessels on the San Blas coast for alleged violation of the customs laws of Colombia, and desiring to possess the fullest possible information upon the subject, I cabled you on the 8th instant to make an immediate examination of the customs laws affecting that locality and of the difficulties said to have arisen there and to report fully thereon.

I am, etc.,

JAMES G. BLAINE.

No. 54.]

Mr. Abbott to Mr. Blaine.

LEGATION OF THE UNITED STATES,

Bogota, January 11, 1890. (Received February 17.) SIR: Your cablegram dated January 8 was duly received on the evening of that day.

Up to the date of your telegram I had no knowledge of any difficulties upon the San Blas coast except the seizure of the British schooner Pearl, said to have been found trading in closed ports, for which she had not cleared and in which she could not legally trade. On inquiry I find that one other schooner, flying the Dominican flag, has also been captured. The Government disclaims any knowledge of other seizures. Acting upon the supposition that some vessel of the United States has been taken by the Colombian man of war La Popa, I have prepared the following statement of the law applicable to the case.

The codigo fiscal recognizes three classes of ports, viz, free ports, ports habilitados, and ports not habilitados.

Importations are not permitted, except into free ports, and ports habilitados being expressly prohibited into ports not habilitados. Commerce between free ports and ports not habilitados is expressly prohibited. Coast trade between ports habilitados and ports not habilitados is permitted to vessels of all nationalities which may carry merchandise of the country or foreign merchandise on which the regular import duties have been paid in some port habilitado. Every port habilitado has a custom-house.

Between the free port of Colon and the port Carthagena, which is habilitado there are no ports of entry, all being ports not habilitados.

Within those limits lies what is known as the San Blas coast. Consequently, none of its ports are either free or habilitados and all direct importations are prohibited and clearly illegal. If made, the vessel and cargo are subject to confiscation. Consuls certifying to invoices to these ports are liable to fine.

Notwithstanding all this, the Columbian consul in New York hasto how great an extent I can not say-granted the usual papers to vessels clearing from that port for San Blas, and perhaps for other ports not habilitados." This action is clearly contrary to law. The evidence, as to the length of time during which this custom has prevailed is somewhat conflicting, but I have good reason to believe that this Government is properly chargeable with knowledge of the fact and has not seen fit to stop the practice until the case of the Pearl was presented to its notice by the British chargé d'affaires.

Definite orders to issue no more such papers have recently been given to the consul, and it is quite possible that his illegal practice, perhaps begun when this coast was of less importance than now, had escaped the notice of the present officials until the case of the Pearl arose.

The opinion of the minister of foreign affairs ad interim, and of the President of the Republic, is decidedly in favor of releasing any boat which may have been captured having consular invoices of the New York consul giving as her destination any of the ports not habilitados. The minister of foreign affairs has been absent for a month, and his opinion is not known. The minister of hacienda, under whose jurisdic tion are custom-house matters, is also absent. It can hardly be doubted, however, that they will coincide with the President and minister ad interim.

There is more than the usual activity in executing the laws upon the San Blas coast for two reasons-the illicit commerce is believed to be increasing, and the Government naturally desires to receive the revenues therefrom. It is furthermore desired to prevent any importations of weapons of war.

I am of opinion that the Government is perfectly justified in preventing, in the customary manner, this illicit trade. But I do not see how it can for a moment justify the seizure of vessels allowed to clear for unauthorized ports by the express permission of a Colombian consul, nor do I anticipate that any serious objection to release vessels so seized, will be made by this Government.

I am, etc.,

JOHN T. ABBOTT.

No. 57.]

Mr. Abbott to Mr. Blaine.

LEGATION OF THE UNITED STATES,

Bogota, January 20, 1890. (Received February 14.)

SIR: I notice in the New York papers of December 24, just received, that the American schooners Willie and Julian have been seized by the Colombian cruiser La Popa and conducted to Carthagena for infringement of the customs laws.

The article states that the owners of the schooners had, by advice of the Colombian consul in New York, obtained a special permit from the authorities at Colon to trade upon the San Blas coast, paying therefor $50.

I have made diligent search and can find no provision of law authorizing any such proceeding. The minister of foreign affairs informs me that there is no such law or custom.

As I wrote you in my former dispatch on the subject, it is impossible to carry on a legal traffic with San Blas until after a vessel has regularly entered a port habilitado, as, for instance, Carthagena, and paid the regular import duties. The law is reasonable and necessary to prevent smuggling.

Further inquiry at the office of the hacienda discloses that the Colombian consul in New York telegraphed to the minister of hacienda here that he had dispatched two American schooners to Colou for traffic on the San Blas coast. The minister immediately answered, forbidding such action in the future. He also ordered the schooners to be taken, on their arrival at Colon, to Carthagena for the purpose of collecting the regular customs dues, on the payment of which they were to be allowed the usual permission to trade upon that coast.