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Mr. Wing to Mr. Fish. No. 410.]
UNITED STATES LEGATION, QUITO, ECUADOR,
August 13, 1874. (Received September 9.) SIR: Herewith I have the honor to forward my note to Minister Leon, (1,) to which were appended the six interrogatories contained in dispatch of June 23, 1874, of the Department, not numbered. Nos. 2 and 3 are copy and translation of Minister Leon's answer; Nos. 4 and 5 are copy and translation of the inclosure referred to in the communication of Minister Leon.
For any further information in regard to the subject, the codes hitherto forwarded to the Department will afford it. Practically speaking, however, the answer and inclosure cover the whole matter, so far as Ec. uador is able to do so under existing enactments. I have, &c.,
List of Inclosures.
UNITED STATES LEGATION,
Quito, Ecuador, August 1, 1874. Sir: I have the honor to forward to your excellency a schedule of certain inquiries relative to the course pursued by the government of Ecuador in regard to the adjustment of claims presented against it, whether held by its own citizens or by the subjects and citizens of foreign governments, and concerning other matters bearing thereon.
May I beg that your excellency will furnish me with the desired information at your earliest convenience; and that, if practicable, your excellency will kindly supply me with copies of such legislative enactments and public and general regulations of the executive department as may pertain to the inquiries in question. With assurance of my very distinguished consideration, I have, &c.,
RUMSEY WING. His Excellency Señor FRANCISCO JANVIER LEON,
Minister for Foreign Affairs, fie:
Tuclosure 2.- Translation.
FOREIGN OFFICE, Quito, August 8, 1874. I have had the honor to receive the esteemed communication of your excellency of date 1st of the present month; and confining myself to the different points contained therein, I am happy to give your excellency the following answer :
Claims against the government, accoriling to Ecuadorian legislation, may be made in two ways: some proceeding from contracts made by the executive power per se, or through its agents with a private party; and others arise from exactions committed by bodies of troopis, or by damage caused in virtue of an order from the government.
In the first case, the action bronght against the government must be initiated in the supreme court, which will try the cause in the ordinary way as established by the code of civil suits, and the government, as well as private parties, have the same privilege to prove their rights.
In the second case, the claim must be presented to the board of finance of the province where the exaction was made and the damage received, or to the district judge of the province, according to the time passed and the nature of the documents which prove it, as is laid down in the special law of indemnification of September 27, 1852 which your excellency will find published in the annexed copy, No. 78, of El Nacional; and in neither case does the government enjoy any privilege.
This right the laws concede not only to Ecuadorians, but also to resident or transient foreigners, who, in this respect, are assimilated to natives, for they are only considered exempt from certain duties, which, according to the law of nations, is not imposed upon them by an uncertain residence in the republic; and they can carry on their own suits per se, or by an agent empowered in the legal form.
Should the payment or indemnification be decreed by the judicial power in virtue of the collection as set forth, it is incumbent upon the legislature to authorize the expense of the sum determined in the sentence, because the executive power is not empowered to order any payment that does not appear in the general estimates of the nation or some other law. With assurances, &c.,
FRANCISCO JANVIER LEON.
(Inclosure 3.- - Translation.
The National Assembly of Ecuador, considering that it is necessary to establish fixed rules, so that, according to them, such as may have reclamations against the public treasury may present their rights for the payment of money, or for forced and voluntary loans, or for supplies, or for any damage caused by commissioned authorities, or by troops, and to prevent in this wise any run upon the national income by illegal debts,
ARTICLE 1. When any person or corporation cannot present legal proofs to evidence forced or voluntary loans that may have been made to the republic, or supplies, or damages caused by troops, commanders of corps, or civil or military authorities, from the 1st of January, 1830, they will establish them by supplementary evidence in the time and in the conditions required by law,
ART. 2. The following will be regarded as legal proofs : 1st. The certificates of the officers of the treasury and commissaries of war, inserting also the entry in the books where the supplementary evidence may have been made;
20. The original contracts, provided that the creditor makes it appear that, on his part, he has fulfilled the stipulations contained therein;
3. The obligations or bills of credit given to the creditors by public functionaries and military leaders, which through public notoriety or competent proof appears, or is assured, that they were authorized to ask or demand the supplies ;
4th. The vouchers of the erogations that those deputed may have given to those concerned therein through competent authority to demand them, but not those signed afterward, provided that the commission referred to is accredited and carries with it the signature of the commissioner; and
5th. The documents that assure the supplies, which, through force by troops, or by bands of armed men representing a political party, or by foreign troops in case of invasion, and that may have produced damage to the interests of any person whatso
ART. 3. The proofs to accredit the authorization of the commissioners and the acknowledgment of their signatures will be presented in a „verbal suit before the judge of finance of the province in which the supplies or loans were made, or the damage was suffered, previously citing the fiscal agent in the provinces where there may be one; and where not, the treasurer, or he who is acting in his stead.
ART. 4. When the reclamation is made, with the legal proofs set forth in article 2, the creditor will repair to the board of finance of the respective province; which, should they consider the evidence as sufficient, will order it to be sent to the treasury with this declaration, for the liquidation of the debt; but should they declare it insufficient, and the creditor, not conforming thereto, should insist in his reclamation through litigation, he will repair to the district judge of finance within the absolute term of thirty days, counted from the one in which the board of finance returned the proceedings for this effect, and being in the same place, it must be done in the term of eight days. The said district will try the cause in the primary court, and the matter will afterward take the ordinary course.
ART. 5. Should the board of finance not certify to any part of the amount that is asked for, with legal proofs, on account of its being insufficiently proved, the creditor may apply, in this case, to the expressed judge of finance, in the same terms and for the same effects set forth in the preceding article.
ART. 6. When the reclamation is begnu with supplementary evidence, the creditor must present it to the district judge of finance of the province where the supply was given, and in lieu thereof, to the judge of the primary court who may be his substitute.
ART. 7. At the time of soliciting the supplementary proof before the district judge of finance, the creditor must name the amount that he claims if it was in money advanced, the fixed number if it were in cattle, or the maximum that he estimates that he has a right to demand in the event of his not being able to make the specification referred to,
ART. 8. The judge of finance, or his substitute, will receive himself the affidavits of the witness that the creditor may present, but when, on account of the distance from whence it is necessary to bring the evidence, he cannot comply with this matter, or have the witnesses brought into his presence, he will give the respective order to the municipal parochial authorities to receive the evidence.
ART. 9. The fiscal agent, or in lieu thereof the treasurer, or the one acting in his stead, will defend the suit against the national treasury until its definite conclusion; and all will be null that is done without summoning him or in his absence.
ART. 10. It is an obligation of the fiscal agent, treasurer, or he who may be acting in his stead, or for lack and inability of their attending, the lawyer that the district judge may name, or, in default of a lawyer, an intelligent citizen, to further all the writs, and counter affidavits conducing to the clearing up the reality of the debt which is demanded, as also to sanction the appeal that may be desired to the respective tribunals, provided that without resolution the national treasury may not have been incumbered.
ART. 11. Concluded the brief of the supplementary evidence, the judge will send them to the fiscal agent or treasurer, or their substitute, to examine them and agree thereto, but without his advancing anything thereto. The judge will approve them, should he deem them sufficient, and order the appointment of appraisers as the representatives of the fiscal agent and the creditor, should it be necessary to value the things that are claimed. But should he decide the evidence insufficient, he will so assert by writ.
ONLY SECTION. Should the appraisers spoken of in the preceding article not agree, the judge will officially name a third party to adjust the matter at issue.
ART. 12. The appraisement finished, the opinion will be presented for both sides, and appearing just and arranged, the judge will so declare, informing the amount due according to the merits as set forth by the evidence produced, and from his decision an appeal may be taken to the superior court, or a consultation had therewith, as also in the principal part of the question.
ART. 13. The following will not be held as sufficient proof, por the evidence of witnesses as conclusive in these cases :
1st. Should the witnesses not have been present at the supply, or that which was taken or seized, or had positive information thereof.
2d. Having been present thereat, or having had positive information thereto, they are unable to determine the time or date, and the person or persons, or the body of troops that did it.
ART. 14. If the authorities or commanders are living by whom or by whose order it is declared tbat the exactions were make, the commissioners will make them appear; and any other persons who are said to bave seen the act, the judge will take the steps essential to an inquiry into the truth, or by affidavits from those who may be authorized to give them, or by evidence. To this end, the judge will question the witnesses on the points expressed, although there may have been no previous indication in regard thereto.
ART. 15. The witnesses will in all cases be questioned, and they must declare or inform, under oath, in the following form, if they were authorities :
1st. If they know what the amount or effects which are reclaimed were demanded as a forced contribution, imposed by a pre-existing law, and distributed by
distributed by a competent authority among the inhabitants of a town occupied by troops.
2d. If they know, or not, whether the claimants have been paid in all or part of the debt which they try to prove.
3d. If the exactions were used for the support of the troops or in other public matters.
ART. 16. In cases first and second of the former article no claim will be considered when in the second case it has been entirely paid; but in the third the wrong inversion of the exactions will not prejudice the right of the creditor as against the national treasury, provided that they may have been done by competent authority, or by bodies of troops, or by other bodies, as set forth in the fifth part of article 2, remaining open a fiscal action against the employé or commissioner who made bad use of the exaction.
ART. 17. The value of cattle, horses, and other effects that may have been given for the service of the state will be the same as they were at the time of their delivery, unless a certain price had been determined on, or that it is known that of the class in general, computing its value according to the time and place where the supply was made.
ART. 18. To the judge of finance, before whom the supplementary proofs were adduced, belongs the classification of the debt in litigation.
ONLY SECTION. This enactment does not take away the duty of the authorities or the parishes to return to their respective owners the furniture or animals which are reclaimed, as enacted by an officer in commission or agent of the government, before the loss of the property is effectuated.
Art. 19. From the sentence pronounced by the district judge of finance in the cases under this law there may be an appeal to the respective tribunals, but should the fiscal agent, or his substitute, not appeal, on account of its being apparently arranged, the tribunal will be consulted, provided that through it the national treasury is declared responsible, and thence the action will follow the same course as the others against the treasury, according to law.
ART. 20. The creditor who may have maliciously reclaimed any illegal sums, will be condemned in costs and punished with the penalty of falsification, should be have produced false documents; and with that of a public thief, if, in virtue thereof, he may have obtained the payment of the supposed debt, besides losing what was legitimately owing him.
ART. 21. Those who give certificates of illegal debts, or the witnesses who swear falsely in favor of the creditors, will both be responsible for the costs and damages to the national treasury, but in case of having avoided damage to the national treasury that might have been occasioned, be what it may, a fine of from fifty to five hundred dollars will be imposed, and in lieu thereof, for not being able to pay it, the criminal will be condemned to an arrest of from three months to one year, without detriment in botb cases to the penalty imposed by law for the crime of falsification.
Art. 22. The district judges of finance, the notaries, the fiscal agents, the treasurers, or collectors, each one, as it may happen, and the ministers of the courts who may supervise as is laid down in the present law of these cases of debt, are also responsible for the damages that occur to the national treasury, through their omission, connivance, or malice, suffering also, each one of them, a fine of from fifty to five hundred dollars, without prejudice to the penalties established by law to make them responsible,
ART. 23. The suit finished and judgment rendered, it will be delivered to the creditors, (leaving an authentic copy,) so that they may apply to the respective treasuries with the object of obtaining liquidation, all of which will be done according to the present law.
ART. 24. Every creditor of the republic of which article 1 speaks will present his claim within one year exactly, counted from the promulgation of the present law, but those who in future may have claims by actions arising after the publication of this law, must present them within one year exactly, counted from the time the damage took place, for any of the mentioned causes, and respectively passing these periods, no claim can be presented, nor can any claim be admitted in any other time.
ART. 25. No person who directly or indirectly has taken or may take part in the revolutions or invasions that may occur against the nationality of the republic, or may have fought, or may fight, will have the right to be indemnified for damages that in this wise he may have suffered or suffers, provided that his criminality is notorious or is legally proved.
Art. 26. To the creditors absent in the service of the republic the time designated in article 24 is prorogued six months.
Let it be communicated to the executive power, for its information and compliance. Given in the hall of sessions, in Guayaquil, September 24, 1852, eighth year of liberty The president of the assembly,
PEDRO MONCAYO. The secretary,
PEDRO FERMIN CEVALLOS. The secretary,
LEGATION OF THE UNITED STATES, The Hague, August 20, 1874. (Received September 9.) SIR: In order to procure through the most reliable source the information called for in Acting Secretary Davis's communication of the 23d of June last, relative to the treatment of claims presented against the government of the Netherlands, I applied to the minister of foreign affairs, and bave this day received the statement of which the following is a translation. I am, &c.,
CHARLES T. GORHAM.
THE HAGUE, August 19, 1874. His Excellency the MINISTER: In answer to your letter of the 20th of July last, and after baving consulted the minister of justice, I have the honor to communicate to you herewith, in the order of the questions that you have addressed to me, answers as follows:
1. Suits against the state and the execution of judgments pronounced on account of them do not come within the sphere of legislative power.
2. As the first question is resolved negatively, there is no occasion to examine the second.
3. Suits commenced against the state are not under the control of the administration.
4. Foreigners as well as citizens of the country may bring an action against the state before the civil tribunals. The real actions, and those that have for object reclamations in matter of contributions, must be brought before the ordinary tribunals; all others before the high court of the Netherlands, (court of cassation.)
5. With few exceptions, the civil rights of the kingdom are the same to foreigners, whether domiciled in the country or not, as to native citizens, both in that which concerns rights material or formal. These exceptions are as follows:
a. Every foreign plaintiff, principal or agent, is bound, if required by the defendant, and before the latter is obliged to make known his defense, to secure the payment of damage and interest to which he might be condemned. This obligation is incumbent on a foreigner, domiciled in the
kingdom or not. b. While in regard to Dutchmen a writ of arrest may only issue in certain cases determined by law, it may be pronounced against foreigners who have not their domicile in the kingdom for every debt, without exception, contracted with a Dutch
C. Foreigners having no domicile in the kingdom, before judgment is pronounced against them, may be imprisoned by order of the president of the tribunal of the district for any past-due obligation, if contracted with a Dutchman.
d. An indigent foreigner is only admitted to proceed gratuitously, either as complainant or defendant, when the favor of the Pro Deo has been stipulated by agreement.
1. There are no special or particular dispositions on the mode of proceeding against the state before the civil tribunals. The common right is equally applicable in matters. of proof. Hoping that the preceding information will be satisfactory, I seize, &c.,
L. GERICKE. Monsieur GORHAN, Minister, &'c.
Mr. Scruggs to Mr. Fisht.
LEGATION OF THE UNITED STATES,
Bogotá, August 27, 1874. SIR: Your circular of the 231 of June last, inclosing a list of inquiries relative to the mode of procedure recognized or provided by the Colombian government for citizens and foreigners preferring claims against it, has been received.
In answer to the same, I have the honor to state, first, that the Colombian Congress has no constitutional authority for investigating and determining such claims. Only the executive and judicial departments of the government have cognizance of such cases.
3d and 4th. Aliens and denizens, equally with citizens, may have