Papers Relating to the Foreign Relations of the United States, 1894, With the Annual Message of the President, Transmitted to Congress, December 3, 1894
Mr. Haselton to Mr. Gresham.
Caracas , September 5, 1894 . (Received September 17.)
Sir: Referring to Nos. 58,74, 77,97, 142, 145, 150, and 156, of my immediate predecessor, I have the honor to report that George F. Carpenter, in some of said dispatches named, has taken such proceedings that the validity of the decree closing to foreign commerce all the mouths of the Orinoco except the Boca Grande, has been passed upon by the “Alta Corte Federal,” or supreme federal court, and that the validity of the decree has been sustained by the court.
I transmit herewith the application of Mr. Carpenter and a translation of the same, the report of commissioners appointed by the court and a translation of the same, and the decision of the court with a translation thereof.
I have, etc.,
application of george f. carpenter.
Citizen President and other members of the High Federal Court:
I, George F. Carpenter, a citizen of the United States of America and actually staying in this city, present to you very respectfully the following exposition:
I am the captain of the steamer Bolivar, which until lately ran between the island of Trinidad and Ciudad Bolivar, a port open to foreign commerce, and I am likewise the agent of the General Steamship Company of Wilmington, Del., United States of America, the present owner of said steamer Bolivar, this company being authorized by the laws of Venezuela to carry on the traffic aforesaid, which, as is well known, is almost exclusively done by way of the caños Macareo and Pedernales, the other outlets of the Orinoco presenting great difficulties to the navigation in vessels like the Bolivar that are flat-bottomed and constructed for river transportation, and can not enter the Orinoco through the Boca Grande.
But in the Gaceta Oficial, No. 5837, of July 1, last year, there appeared a decree issued by the chief of the executive power, which in its first article says that the vessels doing the foreign commerce with Ciudad Bolivar are allowed to enter only by the Boca Grande of the river Orinoco, the caños Macareo and Pedernales being reserved for the coasting trade, and all navigation whatever prohibited on the remaining outlets of the river; and in article 2 permission is given to the lines that run their boats on the caños Macareo and Pedernales to continue doing the same until December 31, 1893, the Government being aware that these boats, on account of their sailing conditions, are unable to navigate the Boca Grande. By a resolution of the ministry of the interior, dated January 8, 1894 (Gaceta Oficial, No. 5998), this term was prorogated until December 31, 1894; but by another resolution, dated February 25, 1894 (Gaceta Oficial, No. 6039), this prorogation was declared null and void, and in consequence the steamers doing the traffic could not go any more to Ciudad Bolivar, with the exception, however, of those Mr. Ellis Grell intended to use (and which [Page 796] are of the same build as the Bolivar) in virtue of the contract he had made with the National Government on January 17 of the present year (published in the Gaceta Oficial, No. 6005), his boats being authorized to navigate the caños Macareo and Pedernales.
From the foregoing exposition it is evident that a monopoly for trading between. Ciudad Bolivar and Trinidad has been granted to Ellis Grell and his successors, because the advantages in navigating the caños Macareo and Pedernales in flat-bottomed boats are so considerable that all competition is impossible by way of the Boca Grande, where the navigation is so dangerous for vessels of this description that the insurance companies refuse to insure steamers of this build when bound to run through the mentioned channel.
These facts are so well known that it is superfluous to enter here into further proofs; moreover, the Government has recognized them in its decrees allowing the steamer lines a certain lapse of time for making in their boats such modifications as to enable them to enter the Boca Grande.
The decree of July 1, 1893, which I have quoted, as well as all the following issued in reference to its execution, are conflicting with No. 8, article 14 of the constitution, which guarantees the liberty of industry, because as the navigation on the Orinoco between Ciudad Bolivar and Trinidad is now monopolized, the whole commerce of Ciudad Bolivar will be practically under the influence of the monopoly.
The decrees referred to are likewise in contradiction with article 1 of the Law xiv of the Código de Hacienda, which, among other ports, declares that of Ciudad Bolivar open to the commerce of exportation and importation without any restriction, because the restrictions established in the decree are such as to render impossible the commerce with Trinidad.
For the reasons brought forward, and on behalf of my personal interests and those of the company I represent in the free navigation of the river Orinoco as far as the port of Ciudad Bolivar, which is open to foreign commerce, and availing myself of the rights the nation concedes even to foreigners, it being undeniable that the pursuit of commerce and the industry of transportation are civil rights, I appear before this high tribunal presenting the allegation of a collision between the aforesaid decrees which obstruct the commerce of the Orinoco, and No. 8, article 14 of the national constitution, article 1 of Law xiv of the Código de Hacienda, and other laws concordant herewith. Caracas, this 8th day of August, 1894.
report of commissioners.
Citizen President of the High Federal Court:
In compliance with the instruction given to us by the high federal court, to state our opinion in regard to the allegation filed by the North American citizen, George F. Carpenter, of a collision said to exist between the decree of the national executive of July 1, 1893, and those issued afterwards in reference to its execution, on one side, and No. 8, article 14, of the national constitution, and article 1 of the Law xiv of the Código de Hacienda, on the other side, we, the undersigned, in discharge of our commission, submit the following report:
George F. Carpenter, a citizen of the United States of America, and actually in this city, captain of the steamer Bolivar, belonging to the General Steamship Company, of Wilmington, Del., United States of America, of which I am an agent, maintains that said company was authorized by the laws of Venezuela to traffic between Ciudad Bolivar and the island of Trinidad, which traffic is almost exclusively done through the caños Macareo and Pedernales, as the other outlets of the Orinoco present great difficulties to the sailing of vessels that, like the Bolivar, being built for river transportation, are flat-bottomed and can not enter the Boca Grande; but that by the decree of July 1, 1893, the national Executive allows foreign traffic only by way of the Boca Grande, reserving the caños Macareo and Pedernales for the coasting trade, and prohibiting all navigation whatever on the remaining outlets of the river, it being thereby made impossible for the company to traffic between Ciudad Bolivar and Trinidad on said caños, whilst such traffic has been permitted to Ellis Grell, in virtue of a contract made by him with the Government on January 17, of this year, this contract being in his (Carpenters) eyes equal to a monopoly of trade between Ciudad Bolivar and Trinidad granted to Grell, because vessels like the Bolivar, which are built for navigating only rivers, as the Macareo and Pedernales, encountered too many difficulties in the Boca Grande, and for such reasons Carpenter considers this decree to be an attack on the liberty of industry as guaranteed by No. 8, article 14, of the constitution in force, and alleges also that it is in conflict with article 1 of the Law xiv of the Cddigo de Hacienda, which declares the port of Ciudad Bolivar to be open to the [Page 797] commerce of importation and exportation with other ports, without any restriction, and he concludes, asking this court to recognize the alleged collision between the decrees and laws mentioned before.
It is a principle universally admitted by all the civilized nations of the world that every sovereign country shall have dominion and empire over the whole national territory, and over all the individuals who are born, have their residence, or may, travel in it.
Thus, in virtue of this eminent sovereignty, a nation may permit or prohibit foreigners to come into the country, and in the same manner it may open or close its ports and rivers to foreign commerce, and neither other nations nor individual foreigners have a right to claim the opening or closure of such ports and rivers under the plea of injury to their interests. In regard to inland seas and rivers this doctrine is universally admitted by older as well as by modern publicists, and only in some special cases, established by the law of nations, would it be admissible to claim exceptionally the opening of certain seas and rivers either to the commerce of those nations who live on their shores and banks or to the general commerce of all nations.
But in the case under consideration Venezuela, by virtue of her sovereignty as a nation capable of leading an international life, has closed to foreign commerce the traffic or navigation on the caños Macareo and Pedernales, reserving both for the coasting trade, and has allowed to foreign trade and navigation only the use of the Boca Grande of the Orinoco, prohibiting all navigation whatever on the caños or outlets of the river without distinction of persons or nationalities. Such a prohibition is by no means equal to the closure of a port open to foreign commerce, nor does it impede navigating the Orinoco; but it establishes only some rules for doing it, and it is entirely indifferent to the nation whether the ships are to be of one shape or of another or what must be their fitness for the traffic on the river, these being points which concern only the parties who intend trading with the country by way of the river in question.
It is true that the liberal spirit of our century tends to apply the principle of a free sea also to rivers; but it is likewise true that with regard to inland waters, lakes, etc., the shores of which belong exclusively to one nation, no other nation may claim the right to navigate these waters, and the liberty of doing so is always the outcome of certain agreements between the different nations, made for the purpose of furthering reciprocal interests of international character, or in view of mutual conveniences for the prosperity and civilization of the respective countries. The Government of the Republic, therefore, does not violate the principles and practice of international law, but, on the contrary, it acknowledges them and complies with them; for, in prohibiting to foreigners the navigation on certain parts of the river Orinoco, it specifies the outlets and caños on which traffic is not allowed to them, but opens the Boca Grande as the only channel they may navigate, whilst the caños Macareo and Pedernales are reserved for the coasting trade.
Such is the right of the Government from the standpoint of international law. But this right is equally well founded on the political and administrative laws which the country has given itself in virtue of its sovereignty. The general administration of the Union, as far as the present national constitution does not provide otherwise, is incumbent on the national Executive, represented by the President of the Republic, with the ministers of the different departments and the council of government.
Amongst the rights and attributions of the President of the Republic there are the following, mentioned under Nos. 17 and 18 of article 76 of the national constitution, viz: “To execute any other function incumbent on him bylaw;” and “to issue decrees and regulations for the better observance of the laws whenever the law should require it, or contain a precept to that effect, with due care however that the spirit and motives of the law be not altered.”
Now, the law of May 17, 1873, which is still in force to-day, authorizes the executive power to open to the commerce of exportation the, ports situated within the lake of Maracaibo as well as those on navigable rivers and on the seacoast of the Republic, to establish custom-houses and revenue guards, to close custom-houses, or to transfer them to other places which may be more convenient in order to avoid excessive smuggling and other losses to the treasury whenever the adoption of such measures be deemed necessary. It is therefore evident that the executive power had the right not only to impose restrictions on the foreign commerce with Ciudad Bolivar, but to close even this port entirely to foreign trade; however, it did not go so far in the decree issued July 1, 1893, but limited its action to closing the custom-house at Pedernales (Article 3) and establishing (Articles 1 and 2) certain regulations for the traffic on the Orinoco in conformity with Article 4 of the legislative decree of May 17, 1873, quoted before. It can not be maintained, therefore, that the decrees objected to are infractions of No. 8, article 14 of the national constitution, nor of article 1 of the Law xiv of the Código de Hacienda; because, if the States have agreed upon leaving to the General Government of the Union the legislative and administrative [Page 798] jurisdiction on marine, coast, and river navigation, this has been done in consideration of the nature of these trading routes, and with attention to the general convenience, the fiscal interests, and the more rapid and effective maintenance of security in the interior of the country. The State could therefore, in virtue of this legislative decree and with the intervention of the General Government, or to-day of the executive power, grant to its agents the exclusive right to navigate certain waters, and such a restricton could never be considered as an attack on the liberty of industry.
In regard to the law of the Código de Hacienda, said to have been infracted, and by which the port of Ciudad Bolivar is open to the commerce of importation and exportation without any restriction, a mere reference to the legislative decree of May 17, 1873, quoted already repeatedly, will suffice to show that there is no collision whatever between this law and the decree of the national Executive of July 1, last year; for the President of the Republic is fully authorized by the former to introduce any modifications in the custom-house of Ciudad Bolivar, as it gives him the right to restrict its operations and even to close it, just as any other custom-house in the Republic.
In consideration of the reasons brought forward we conclude, asking the high federal court to give its approbation to the present report, and to declare that there is no collision between the executive decree of July 1, 1893, and those issued afterwards in reference to its execution on one side, and the articles of the constitution and of the law of the Código de Hacienda, on the other side, which plaintiff alleges to have been infracted.
- Alejandro Urbaneja.
- José Manuel Iuliac.
decision of the high federal court.
The high federal court of the United States of Venezuela, assembled to administer justice, has seen the representation in which George F. Carpenter, a North American citizen, alleges the collision that he says to exist between the decrees of the national Executive dated July 1 of this year1 and those issued afterwards in reference to its execution on one side, and No. 8, article 14, of the national constitution, and article 1 of the Law xiv of the Código de Hacienda on the other side. The cause of this representation is as follows:
The General Steamship Company, of Wilmington, Del., United States of America, which Carpenter says he represents, “authorized by the laws of Venezuela, carried on traffic between Ciudad Bolivar and the island of Trinidad,” which traffic is done almost exclusively by way of the caños Macareo and Pedernales, as the other mouths of the Orinoco present great difficulties to navigation. Vessels like the Bolivar (the property of said company), which, on account of being destined for river transportation, are flat-bottomed, can not enter the river through the Boca Grande; but by decree of July 1, 1893, the national executive enacted that the foreign traffic should be carried on only through the Boca Grande, reserving the caños Macareo and Pedernales for the coasting trade, and prohibiting all navigation whatever on the other caños of the river, so that it was impossible for the company to trade between Ciudad Bolivar and Trinidad by way of said caños, whilst it was permitted to Ellis Grell, in virtue of the contract made by him with the Government on January 17, this year, which contract forms in his eyes a monopoly of commerce between Ciudad Bolivar and Trinidad in favor of Grell, because of the many difficulties to navigation in the Boca Grande for vessels such as the Bolivar, which by their sailing conditions are only fit for navigating the Macareo and Pedernales; all this being an attack on the liberty of industry guaranteed by No. 8, article 14, of the constitution now in force, and likewise by article 1 of the Law xiv of the Código de Hacienda, which declares amongst other ports that of Ciudad Bolivar open to the commerce of importation and exportation without any restriction whatever.
And whereas this court considers:
- 1.
- That it is a principle universally admitted amongst the civilized nations of the world that every country and every sovereign nation shall have dominion and empire over the whole national territory and over all the individuals that are born, have their domicile, reside, or travel in it, so much so that the nation by virtue of this sovereignty may permit or prohibit foreigners to come into the country, and in the same manner may open or close its ports or rivers to foreign commerce, neither the [Page 799] other nations nor individual foreigners having any right to claim the opening or closure of such rivers and ports under the plea of injury to their interests.
- 2.
- That in regard to interior seas and rivers this doctrine is the one generally admitted by older and modern publicists, for only in the cases determined by the law of nations it might be exceptionally pretended that certain rivers and seas should be opened either to the commerce of the bordering States or to the general trade of all countries.
- 3.
- That in the case under consideration Venezuela, by virtue of her sovereignty as a nation capable of leading an international life, has prohibited to foreign commerce the traffic or navigation of the caños Macareo and Pedernales, reserving both for the coasting trade, assigned the Boca Grande of the Orinoco to foreign navigation and commerce, and prohibited absolutely, without distinction of persons and nationalities, the transit through the remaining outlets and caños of the river, which prohibition is not equal to the closure of ports open to exterior commerce, nor does it impede navigating the Orinoco, but only establishes certain regulations for doing so, whilst it is of no concern to the nation what must be the shape or build of the vessels or their sailing conditions for the purpose of such traffic, these points regarding only those who intend trading with the country through the river channel mentioned.
- 4.
- That although it is true that the liberal spirit of the country endeavors to extend and apply also to rivers the principle of a free sea, it is likewise true that in regard to inland waters, lakes, etc., the shores of which belong exclusively to one nation, no other nation may claim the right to navigate these waters, and in proof thereof the liberty of navigating them is always the consequence of agreements or treaties between the nations, made in view of the reciprocal international interests and the mutual conveniences of the countries in reference to their prosperity and civilization.
- 5.
- That the Government of the Republic does not violate in any way the principles and practice of the law of nations, but on the contrary complies with them and recognizes them in prohibiting to foreigners the navigation in certain parts of the Orinoco, because it specifies the outlets and caños on which traffic is not allowed to them and opens the Boca Grande as the only channel they may navigate, whilst the caños Macareo and Pedernales are reserved for the coasting trade.
- 6.
- That from the standpoint of international law, the national executive has proceeded in conformity with its principles.
- 7.
- That in regard to its right of dictating such measures, by authority of the political and administrative laws which the country has given itself in virtue of its sovereignty, the general administration of the union, as far as the present national constitution does not provide otherwise, is of the competency of the national executive; and amongst the faculties or attributions of the President of the Republic, who represents it, together with the ministers and the council of government, there are the following two, as given in Nos. 17 and 18, article 76, of the same constitution: “To execute any other functions incumbent on him by law” and “to issue decrees and regulations for the better observance of the laws whenever the law should require it or contain a precept to that effect, with due care, however, that the spirit and motives of the law be not altered.”
- 8.
- That the law of May 17, 1873, which is still in force, authorizes the executive power to open to the commerce of exportation the ports situated within the lake of Maracaibo, as well as those on navigable rivers and on the seashore of the Republic, to establish custom-houses and revenue guards, to close or to transfer custom-houses from the ports open to importation and exportation to whatever place it may believe convenient. It is evident that the executive power had the right not only to impose restrictions on the foreign commerce with Ciudad Bolivar, but to close even this port entirely to foreign trade, though it did not go so far in its decree of July 1, 1893, but limited its action to closing the custom-house at Pedernales (article 3) and establishing (articles 1 and 2) regulations for the traffic by the outlets of the Orinoco, in accordance with article 4 of the legislative decree of May 17, 1873, quoted before.
- 9.
- That it can not be maintained that the mentioned executive decrees be infractions of No. 8, article 14, of the constitution, nor of article 1 of Law xiv of the Código de Hacienda, because if the States have agreed upon leaving to the General Government the legislative and executive jurisdiction on marine, coast, and river navigation, this has been done in consideration of the nature of these trading routes, and with attention to the convenience, the fiscal interest, and the more rapid and effective maintenance of security in the interior of the country; so that the State, with the intervention of the general power or to-day of the national executive, and in virtue of this legislative decree, could navigate alone, or through his agents, certain waters, and such limitation could not be called an attack on the liberty of industries.
- 10.
- That in regard to the law of the código de hacienda, said to have been violated, and by which the port of Ciudad Bolivar is open to the commerce of importation and exportation without any restriction whatever, a mere reference to the [Page 800] legislative decree mentioned before will suffice to show that there is no collision between this law and the executive decree of July 1, last year; for there can be no doubt that the attributions of the President of the Union give him the right to modify the character of the custom-house at Ciudad Bolivar, to restrict its operations, and to close even any other custom-house in the Republic.
Therefore, and considering the reasons brought forward, it is decided that there does not exist the collision alleged by George F. Carpenter between the executive decree of July 1, 1893, and those issued afterwards in reference to its execution, on one side, and No. 8, article 14, of the constitution, and article 1 of the law xiv of the código de hacienda, on the other side.
- M. Planchart Rojas.
- C. Yepes, hijo.
- Antonio Tarraga.
- E. Balza Davila.
- M. Caballero.
- Josè Manuel Juliac.
- Alejandro Urbaneja.
- Jorge Pereyra.
- J. A. Gando B.
-
Leon Febres Cordero
T.,
Secretary.
I certify hereby that this is a true copy,
Secretary.
Be it published, by order of the President.
Secretary.
- So reads the original; however it must be “of last year.”↩