No. 187.
Mr. Scruggs to Mr. Fish.

No. 79.]

Sir: An indemnity claim, amounting to over one hundred thousand dollars, in favor of Messrs. Cotesworth & Powell, merchants of London, was presented by the English government against that of Colombia in November, 1871.

The facts upon which the claim is based are substantially these:

In the year 1855 Cotesworth & Powell, residing in London, entered into a contract with Messrs. Powles, Gower & Co., an English house established in Baranquilla and in Bogota, for the purchase of tobacco on [Page 418] joint account. The former house supplied the funds; the latter made the purchases, forwarded the tobacco, and shared the profits. Powles, Gower & Co. had a branch house in London through which all the business was transacted.

In 1857 the London house failed. This was soon followed by the suspension of the one in New Granada. Cotesworth & Powell at once dispatched an agent to this country to protect their interests. That agent was duly recognized by Powles, Gower & Co., who made over to him all the property of the claimants, both in produce and in contracts.

The creditors of the New Granadian firm, finding the assets small sought to obtain possession of this property on the plea that it belonged to Powles, Gower & Co.; and in this they so far succeeded as to secure judicial sanction to the embargo of it.

The agent of the claimants in Bogota succeeded, after some litigation, in getting this embargo removed as regarded the property in Bogota, the supreme court of the confederation having pronounced sentence in his favor.

But the agent in Baranquilla was not equally successful. The judge having cognizance of the case at that place was Señor Clemente Salizar, a person, it seems, of venal character. It is alleged that this judge, aided by the local assignees of the bankrupts, made away in various ways with the property of the claimants.

Among other violent and illegal acts, he is charged with having sold three hundred cases of the tobacco to his own secretary; with having forced his way into the sick-room of the claimants’ agent, and, over the protest of the English consul, seized the bills of lading of certain cargoes of tobacco, sent them to England, and received the value for them. Finally he disappeared suddenly from Baranquilla, carrying with him all the papers relating to the suit which was before him, thus rendering it impossible for the claimants to prove their case.

This same judge had, it is alleged, been previously arraigned by his own countrymen upon charges of bribery and forgery in similar cases; had been convicted, pardoned, and restored to his place. For his conduct in the present case he was condemned in costs in March, 1862, but judgment could not be executed against him, as he pleaded the general-amnesty act of March, 1860. This plea was admitted on the ground that the amnesty included the civil as well as criminal action, and he was thus relieved of all the consequences of his conduct.

Therefore, although the supreme court of the State of Bolivar had declared the claim of Cotesworth & Powell to the assets of the Baranquilla house well founded, it was impossible to recover anything, as Judge Salizar and his accomplices had made away with all the property.

The grounds upon which the English government made demand for reparation to Cotesworth & Powell are, first, the notoriously bad character of Judge Salizar in that he had been previously convicted of infamous conduct; second, that in the present case justice was denied the claimants by reason of that judge’s violent and illegal acts; and, third, that by condoning his offense, the State became responsible for the consequences of his acts in so far as innocent parties had been injured thereby, if indeed it was not previously liable on the ground of the judge’s infamous reputation 5 consequently that the national government of Colombia becomes responsible, inasmuch as foreign powers in their intercourse with Colombia cannot treat with the separate States or integral parts of the confederation, but only with the national or federal head.

The Colombian government, after resisting the claim upon the ground [Page 419] that it could not be held responsible for the venal acts of State judges, finally proposed its reference to arbitration, which was accepted by that of England. A commission was organized in the early spring of 1873, under an agreement a copy of which I inclose. It was composed of Dr. Schumacher, the resident German minister, on the part of Great Britain, and Dr. Ancizar, a distinguished citizen of Bogota, on the part of Colombia; these to choose an umpire, and in case they should not agree, then an umpire was to be named by the French minister in Colombia.

The recall of Dr. Schumacher, or rather his transfer to the United States, in September last, before any decision had been reached, and the continued ill-health and final resignation of Dr. Ancizar, left the case substantially where it was two years ago, and the appointment of a new commission has, therefore, become necessary.

It is understood that General Sal gar, once minister to the United States, afterward President of the republic, now governor of Cundinamarca, will be named as the new commissioner on the part of Colombia, and that he will accept the appointment. Mr. Bunch, Her Britannic Majesty’s minister resident, has asked me to accept on the part of his government. His solicitations have been strengthened by the fact that General Salgar and the Colombian authorities have expressed a desire to the same effect.

I have, therefore, with some reluctance, consented; and as the case has been one of long standing, and both governments desire an early settlement, I have even agreed to act in anticipation of the assent now respectfully solicited of my Government. I believe this has been customary with some of our diplomatic representatives both in Europe and in Spanish America, as also with those of other powers; although under almost any other circumstances I should not presume to act upon exceptional precedents.

The documents of the case are quite voluminous. The question itself has been the source of protracted discussion and considerable irritation. I am also sensible of the fact that it involves some nice points of public law. But while distrusting my abilities and inexperience, I have yielded to repeated solicitations in the hope of being able to contribute toward an amicable and satisfactory adjustment; and this without any hope or expectation of reward, other than the consciousness of discharging a public duty.

I have, &c.,

WILLIAM L. SCRUGGS.