No. 125.
Mr. Dichman to Mr. Evarts.

No. 34.]

Sir: As stated in my No. 33, I beg to inclose a duplicate and translation of an agreement in the “register question,” entered into between the honorable secretary of the interior and foreign relations of Colombia and myself. For the files of this legation I have obtained a certified copy from the department of the interior and foreign relations.

The Department will perceive that in the conference preliminary to the agreement, the Colombian Government admits that the question is governed by the spirit of the treaty of 1846, and subsequent consular convention.

On the subject of the claims the Colombian Government enters a demurrer, which was perhaps to be expected, but regret is expressed for the occurrences at Colon-Aspinwall.

As to the agreement itself, it was the object of both the honorable secretary of foreign relations and myself to adopt as a basis for the same, sections 4209, 4210, 4211 and 4309 of the Revised Statutes of the United States, and sections 118 to 124 of Article XII, and forms 13 and 14 Appendix V, United States Consular Regulations, as nearly as it could be done consistent with the revenue and police laws of this country and the difference in language.

Articles 1 and 2 of the agreement are as near as could be a reproduction of section 4209 Revised Statutes of the United States.

In regard to section 4211 Revised Statutes of the United States, which the honorable secretary of foreign relations desired to incorporate also, and to embody the same into the legislation of Colombia hereafter, [Page 267] there was some difficulty. For I did not deem it advisable or prudent to agree to the exercise of any power to inflict a fine on consuls of the United States by this government, if for no other reason than that on account of the want of federal judicial officers in this country, such power might be exercised arbitrarily and lead to difficulties and complications. Instead of this I suggested the provisions of article 3, to which I did not see any objections, as it is a right possessed by either government on general principles, and in this particular instance the provisions of article 3 of the agreement only define one of the causes referred to in article 2 of the consular convention. By referring to a dispatch, No. 15, dated August 20, 1824, from Mr. R. C. Anderson to the Hon. John Quincy Adams, the Department will find in one of the accompanying copies of letters addressed to the then Colombian secretary of foreign relations, under date of July 20, 1824, by Mr. Anderson, then the minister plenipotentiary to the Republic of Colombia, the following language:

The law of the United States requires that the consul who has received the papers of the vessel shall, &c. Any consul who should violate the plain language of the law would immediately incur punishment from his own government, and justly incur the revocation of his exequatur from this.

As this action of Mr. Anderson appears to have been approved or acquiesced in by the Department, I considered myself justified in looking upon it as a precedent for my action in addition to the reasons given above. The Department will notice in this connection that by the language of article 3 of this agreement the permission to weigh anchor (clearance) is to be issued by a federal officer.

This phraseology was adopted to avoid possible misunderstandings on the subject of State laws and State officers.

Article 4 explains itself.

On the subject of the claims for damages, which are provided for in article 5, there was some difficulty in coming to an agreement. It was but natural that the Colombian Government should decline any liability for any claims, even if this denial were only a matter of form; besides, there was the difficulty in fixing upon an amount, and an excusable sensitiveness as to the views of the opposition party in congress, which meets on the first day of next month. The Colombian Government offered to have the cases mentioned investigated, and come to an agreement thereon later, but as such a proceeding would not have led to any definite result, I concluded that it would be a better position for both governments to occupy, and move in accordance with a spirit of fairness to have the whole question submitted to arbitration. As soon as the Colombian Government obtains the necessary legislation from congress I shall report further on this point.

I trust that the above statement and accompanying protocol, will be found by the Department a compliance with the instructions contained in Department’s dispatches Nos. 6 and 10.

The diplomatic agreement of 1876, to which reference is made in the Department’s dispatch No. 6, only applied to the free ports of Colon (Aspinwall) and Panama, and the preliminary correspondence on the part of the foreign representatives was based principally on public convenience.

At that time the Colombian Government was engaged in a civil war of great magnitude, and it is understood that Dr. Ancizar, the then secretary of the interior and foreign relations, yielded to the pressure, rather than have any foreign complications to deal with. Subsequently the Colombian congress passed a resolution of inquiry, why [Page 268] the law had not been complied with in the two ports above mentioned, and directed its enforcement. This placed the administration of this country in an embarrassing position, and out of this grew the transactions complained of at Colon (Aspinwall); with a full knowledge of these facts, and after a careful examination of the legal questions involved, I came to the conclusion that they were covered by the treaty of 1846 and subsequent consular convention, and that an agreement under the provisions of these treaties would be more binding and permanent than the mere repeal of the law in question could be. Besides, in asking a compliance with treaty stipulations, no national jealousies could be awakened; the delicate question as to how far a nation ought to yield to a spirit of international comity in modifying its revenue and police laws was entirely avoided, and the decision arrived at in the accompanying agreement will stand during the existence of the treaties, and will be of general application in all the ports of this country instead of only at the free ports of Panama and Colon (Aspinwall).

Referring to the letters of Mr. E. P. Pellet, the consul of the United States at Barranquilla, inclosed in the Department’s dispatch No. 10, in which he states that upon his arrival at Barranquilla, over twelve years ago, he found the custom established of delivering the registers of American vessels to the Colombian authorities, and in which he makes certain just complaints of the authorities in failing to render him assistance to arrest a deserter of an American vessel, I take pleasure in stating that as soon as the vessel can reach the coast orders will be sent there in accordance with the accompanying agreement, the Colombian federal and State officers will be directed to a strict compliance with international obligations hereafter, and all cause of complaint in the future will be removed.

The honorable secretary of the interior and foreign relations has also informed me that in his next report to congress, he will recommend to that body the adoption of section 4209 Revised Statutes of the United States, under the condition of reciprocity contained in section 4210, as the law of Colombia on this subject. This would put it into the power of the consuls of the United States to compel a compliance with section 4309, Revised Statutes of the United States, which is a matter of some importance, as may be seen by reference to pages 606, &c., part 1, Foreign Relations of the United States for 1875.

As incidentally connected with the subject of this dispatch, I desire to call the attention of the Department to No. 675, page 1365, Foreign Relations of the United States for 1875, part 2. It was thought by the secretary of foreign relations that he might use the same as an authority; but he admitted that after all it was only a dispatch asking instructions, and that the individual views of the author could not in any way be considered as the views of his government; further, that the publication of the same did not invest it with any authority, as the publication was only for the Congress of the United States, and was sent to other governments merely as an act of courtesy.

My object in calling attention to this dispatch is to show that the same sentiment or idea must have been the cause of similar legislation in both countries, and that it may be well to bear in mind, if any difficulties should arise similar to those spoken of in the No. 675 above quoted, that the treaty of 1824 was applicable to both the country where No. 675 was dated and this, and that therefore the correspondence of the Hon. John Quincy Adams, Mr. R. C. Anderson, and the Hon. Pedro Graul had, perhaps, best be transmitted for the files of that legation from the Department.

[Page 269]

The correspondence to which reference is made would be an extract from Mr. Anderson’s instructions on the subject of the consular power, and suitable extracts from Mr. Anderson’s dispatch No. 15, and inclosure of July 20, 1824, and the answer of the Hon. Pedro Gaul, which was also transmitted in Mr. Anderson’s dispatch No. 15.

With an anxious wish that the Department may find in the result of my exertions something to promote the interest of our country,

I am, &c.,

ERNEST DICHMAN.

Protocol of a conference held at the office of the secretary of the interior and foreign relations, in the city of Bogota, at three o’clock in the afternoon of the 7th day of January, 1879, between the secretary of the interior and foreign relations of the United States of Colombia and the Hon. Ernest Dichman, minister-resident of the United States of America, for the purpose of terminating in a friendly and mutually satisfactory manner the differences which unfortunately have arisen between the two countries on account of the late legislation of Colombia on the subject of the registers of foreign merchant vessels which arrive in the ports of this country engaged in lawful commerce.

The Hon. Ernest Dichman expressed the views of the Government of the United States of America upon the matter, in the manner in which they were presented in the notes directed by him to the Colombian Government, dated November 5 and December 13 of last year, namely:

1.
That in accordance with the treaty of 1846, and the subsequent consular convention, the registers and other official papers of the vessels of the United States of America should be in the custody of the consuls of the nation during their stay in Colombian ports.
2.
That the Government of Colombia ought to pay the damages caused by the detention in its ports of the vessels of the United States of America, on account of a compliance with the laws of Colombia upon the matter, for not having rendered assistance to the consuls of the United States of America in the apprehension of deserters of the vessels of said country according to the stipulations of the treaties in force between the two nations, and for the violent and unwarranted conduct of an officer of the United States of Colombia in Colon, reference to which is made in the note of the Hon. Mr. Dichman, dated November 5, 1878.

The secretary of the interior and foreign relations replied that after a lengthy examination of the matter he had arrived at the conclusion that, if not the letter, the spirit of the treaties in force between the two countries requires that the registers and other documents belonging to the vessels of the United States of America should be, during the stay of said vessels in Colombian ports, kept in the custody of the respective consul, and that, proceeding in conformity with this judgment, the necessary instructions would be communicated to the collectors of customs and inspectors of ports.

The secretary of the interior and foreign relations expressed himself further that, in his opinion, the republic was not responsible for the damages which might have been caused to citizens of the United States of America, from the compliance with her laws upon customs and the police of the ports, for the conflict which, in the judgment of the Hon. Mr. Dichman, existed between those laws and the treaties in force between the two countries, was not evident; that he deplored profoundly any illegal proceedings, the object of which might have been the vessels and mariners of the United States of America in the ports of Colombia, and that it was his wish, without doubt in accordance with that of all his fellow-citizens, to see extinguished every cause of difference between the two nations, which are called upon, for many reasons, to strengthen and draw closer each day the ties of sincere friendship which happily unites them.

The Hon. Mr. Dichman stated, in the name of the government and the people of the United States of America, that he concurred in these sentiments, and, in view of the opinions of the secretary of the interior and foreign relations, arrived with him at the following agreement:

1st.
That the register and other documents belonging to the vessels of the United States of America, and the clearance from the ports of departure, executed by the proper officer, shall be produced to the collector of customs or the inspector of the port, respectively. Forty-eight hours after having entered the port, the captain shall deposit the register and other documents of the vessel with the consul of the United States of America, and deliver to the collector of customs or the inspector of the port, respectively, the certificate of the delivery of such documents which said consul shall execute.
2d.
That the consul of the United States of America, upon the receipt of the register, [Page 270] muster-roll, and other documents belonging to a vessel of his nation, which may have entered the port, shall execute a certificate setting forth the fact, which (certificate) shall be delivered to the collector of customs or the inspector of the port.
The consul shall not return the register and other documents to the captain who may have deposited them in his hands, only when he (the captain) produces to him the permission to weigh anchor (clearance) executed by the proper authority.
3d.
It shall be a cause for canceling the exequatur executed to a consul of the United States of America, who shall return the register and other documents which may have been deposited with him, before there shall have been presented to him the necessary permission to weigh anchor (clearance) executed by the proper federal officer.
4th.
The word consul used in the aforegoing articles comprises all classes of officers in that service.
5th.
The question as to the responsibility of the United States of Colombia for the claims above mentioned, made by the Government of the United States of America, and the amount of the same, shall be submitted for a decision to an authority duly constituted by both governments.


The secretary of the interior and foreign relations:
[seal.]
PABLO AROSEMENA.

The minister resident of the United States of America:
[seal.]
ERNEST DICHMAN.