[Inclosure. Translation.] Mr. Fèrére to Mr. Powell. DEPARTMENT OF STATE FOR FOREIGN RELATIONS, Mr. MINISTER: I have the honor to acknowledge the receipt of the dispatch that you addressed to me on the 20th of November last to draw my attention to the interpretation given by the Haitian Government to the new license law and to observe at the same time that it is in conflict with the terms of the treaty that exists between the two Governments. I must first beg you, Mr. Minister, to have the high courtesy to excuse my delay in replying to you. On account of the importance of the communication that is the object of your dispatch, you will admit that some time was necessary for me to acquaint myself with what had been done and to search the archives of the department, the elements with which to enlighten my judgment. To-day, that I am enabled to make known to you the opinion of my Government on the subject in question, I beg you to kindly lend me all your attention. It appears from my investigations that the Government of Haiti, through one of my predecessors, Mr. Brutus St. Victor, was brought in 1898, and after a rather long discussion, to admit the interpretation given by the Government of the United States to Article V of the treaty of 1864, but my intimate conviction, shared by the whole Government, remains just as it is stated in my dispatch of October 20 last, written to Mr. Alexander Battiste, in charge of the American legation at Port au Prince; that is to say, that it is a judicial error to base on Article V, instead of Article II, the reciprocal condition of American citizens in Haiti and of Haitian citizens in the United States, since the mostfavored-nation clause that establishes that condition, and, furthermore, only specially applies to the commercial system, is only to be found in Article II. When I thus express myself, Mr. Minister, I base myself not only on the literal sense of the words and on the principle of public law that governs the matter, but also on the written text of the treaty of 1864 as it is to be found in the compilation of treaties and conventions concluded between the United States of America and other powers, published under the eye and seal of the Department of State itself. In fact, in that compilation, which I have at this moment in hand, I see alongside of each article a rubric indicating the subject dealt with in the article. Thus Article I, to begin with, bears the rubric peace and friendship; Article II, most-favored-nation privilege; Article III, case of war; Article IV, property not to be confiscated (in case of war, of course, as confiscation can only take place in that case); Article V, exemption from military service. For more precision, I transcribe textually Article V: ARTICLE V. The citizens of the high contracting parties residing or established in the territory of the other shall be exempt from all compulsory military duty by sea or by land, and from all forced loans or military exactions or requisitions; nor shall they be compelled to pay any contributions whatever higher or other than those that are or may be paid by native citizens. Who does not see that the contents of this Article V, the same as the two preceding, provides for a state of war, and not commercial conditions already provided for in Article II? Can it be reasonably supposed that two nations, friendly and living in peace, would exact military service of each other's citizens; and how can it be alleged that the special clause of a diplomatic act, which exempts these citizens from all compulsory military duty, contemplates a commercial system and not the particular condition resulting from a state of war? No; it is only in case of war that such exactions could be justified, and it is certainly in order to guard against this possible exigency that the two States signatory to the act of 1864 have specified therein, beside the exemption from military service, other guarantees, such as the prohibition of subjecting their respective citizens to forced loans and exactions, and of compelling them to furnish higher or other contributions than the natives. This last word, contribution, is doubtless capable of different meanings, and has afforded grounds for the interpretation contrary to ours; but, coming in an article and, moreover, in a sentence which only deals with acts of war, the only meaning it can bear in this particular case is this: "That which is given to the enemy for protection against military executions." (Littré.) Therefore, reason, logic, good sense, and equity all unite here in support of the interpretation that I maintain, without taking into account that in no convention of this character the favorable treatment can be given and acquired only for a fixed time; while the assimilation of the respective citizens of our two States, as established by Article V, although applicable only to the case of war (which God forbid), appears, according to your interpretation, to be made perpetual, like the friendship and the peace of which it is only the corollary. The difference between the condition which is created by Article II and that which springs from Article V, one is special, and relates to the commercial and industrial treatments; the other applies to all the citizens without distinction in case of war between the two countries. Although I am not confident, Mr. Minister, of my ability to cause the Federal Government to alter a decision-bad, it is true already reached and accepted by the two parties, I nevertheless cherish the hope of convincing you personally of the justice of the cause I am defending. I further venture to hope that acting under the high sense of justice and equity of which you have so often given proof, you will take a favorable view of the position of the small Haitian nation-friend and admirer of the great American nation-which, on account of its having at one time yielded to the impulse of a too justly inspired confidence, is now threatened with a loss of the privileges that all States ordinarily reserve for their citizens only, and induce your Government to concur in the said views. For it is certain that if the Americans are assimilated to the Haitians, the French who have a treaty with us, signed in 1838, which contains the most-favored-nation clause (which, however, is not to be confused with assimilation) will not fail to claim the same treatment, and God only knows what attacks from other parts will be directed against us. If, therefore, the Federal Government, notwithstanding our just and legitimate observations, adheres to the interpretation of article 5 of the treaty of 1864, as it has done in the past, it becomes my duty, Mr. Minister, to inform you that American citizens shall continue, as they have since 1898, to be assimilated to the Haitian citizens, and that conformably to the reservation indicated in the correspondence exchanged at the time between your legation and my department, the Government of the Republic of Haiti will soon take occasion to present to yours a proposal to modify the important diplomatic instrument that binds our two countries. Please accept, etc., M. FÈRÉRE. Mr. Powell to Mr. Hay. AMERICAN LEGATION, No. "Q."] Santo Domingo City, February 8, 1904. SIR: I have the honor to submit to the Department a copy of a dispatch forwarded to the minister of foreign relations, Hon. M. Fèrére, in regard to the subject of license taxes, in accordance with instructions from the Department. I have, etc., W. F. POWELL. [Inclosure.] Mr. Powell to Mr. Fèrére. LEGATION OF THE UNITED STATES, Santo Domingo City, February 2, 1904. SIR: I had the honor to address your excellency by instructions from my Government, in regard to the question of patents or license tax. I have expected to have received a reply to my note, but up to the present moment I have received none. I have now to inform your excellency that the question of license taxes or tax contributions, of whatever nature, in violation of article 5 of the treaty between the United States and Haiti, must be considered as settled. My Government will not admit any further discussion on this subject. It denies to your excellency's Government the right to levy such tax. I call your excellency's attention to the carefully rendered decision of the Hon. W. R. Day, in the Metzger case. It was therein admitted by the Haitian Government the provisions of that treaty to be correct. My Government expects the provisions of that treaty to be faithfully observed toward its citizens. I am also instructed to inform your excellency that my Government can no longer engage in the discussion of this question which has been so well and finally settled. Accept, etc., W. F. POWELL. Mr. Hay to Mr. Powell. No. 594.] DEPARTMENT OF STATE, Washington, February 27, 1904. SIR: I have to acknowledge the receipt of your legation's No. 1376, of the 8th instant, inclosing copy of the Haitian Government's reply concerning the bearing of the treaty between the United States and Haiti upon the Haitian license law of 1903. The Department regards this reply as a substantial acceptance of the interpretation which has been universally placed upon the treaty provision by this Government and which has heretofore been acquiesced in by the Haitian, namely, the equality of treatment of United States and Haitian citizens. I am, etc., No. "c."] Mr. Powell to Mr. Hay. JOHN HAY. LEGATION OF THE UNITED STATES, Santo Domingo City, March 16, 1904. SIR: I have the honor to state that the Haitian minister of foreign relations has informed the communal or city authorities that a higher license can not be demanded of Americans in business, but the manner of procuring the license or patent, or rather the restrictions connected with obtaining the same, has not been removed. All foreigners desiring patents must petition the Government, or rather the President, on stamped paper. Haitians are not required to conform to this part of the law. I have, etc., W. F. POWELL. LICENSE TO DO BUSINESS ARBITRARILY DENIED TO AMERICAN CITIZENS. No. 1382.] Mr. Terres to Mr. Hay. LEGATION OF THE UNITED STATES, SIR: I have the honor to inclose herewith a protest handed in to this legation by Mr. George Schwedersky, an American citizen largely interested in business in Haiti, with the request that same be forwarded to the Department of State at Washington. I called on the minister for foreign affairs with Mr. A. Battiste for the purpose of finding out the reason why the patent was refused, He seemed not to know the cause for the refusal but promised to furnish me with the information, which has not been done up to this date. This shows a very alarming situation for Americans doing business in Haiti, and unless some means are taken to stop same will result in their utter ruin. I am, etc., JOHN B. TERRES. [Inclosure 1.] Mr. Schwedersky to Mr. Powell. PORT AU PRINCE, March 2, 1904. SIR: I wish to bring to your notice the inclosed letter received this day from the Haitian minister of finances, and desire that you forward the same to the Department of State at Washington for their serious and immediate consideration. I am one of the principal partners of the old and honorable standing firm J. Dejardin Th. Luders & Co., of this city. The firm of Dejardin has been existing here since the year 1830. I have been connected with the firm as partner since the past eleven years. Yearly the foreign houses doing business in Haiti apply for a patent to conduct their business, which patent is granted by the President of the Republic. As customary, when called upon by the mayor of the city last October, we paid over to him the amount of taxes for the patent for the ensuing year, as well as in November to the Government the amount of the new license tax, established by the law of 13th August, 1903, and made the customary demand by letter for the patent. Not receiving it during the month of January, I wrote again requesting that the patent be granted. As none of the foreign houses had received theirs I concluded, as others, that it was mere neglect on their part, as has been often the case in former years. To my great astonishment I received the letter mentioned. The firm has large investments in Haiti, we do a large banking business, are also heavily interested in a city tramway and a railroad extended to the plains, which has only recently been completed. We are also heavy investors in a tobacco plantation and a cigar manufactory, besides being large owners of Haitian securities, upon which they have lately placed a repudiating tax, which is entirely contrary to their binding contract to pay in full for same. This letter, as you will see, states that a reasonable delay will be given to liquidate our business. There is no possible plausible reason to be given for the highhanded, arbitrary demand on our firm, and it would be utterly impossible to comply with this unwarrantable demand without being very heavy losers in all the enterprises in which we are engaged, and besides we would surely lose our entire outstanding debts, which are very heavy, if we are forcibly thrown into liquidation by this highhanded proceeding of the Haitian Government, especially as a firm which is not in possession of its patent can not carry on any lawsuit. As an American citizen I most earnestly protest against the arbitrary right of the Haitian Government to impose any such ruinous demands upon the firm in which I am engaged, and I most earnestly request of the United States Government to take such action in the premises that will secure to me my rights and to avoid my being a heavy loser if this decree is allowed to be put in force. Yours, respectfully, G. SCHWEDERSKY. [Subinclosure.] Mr. Biyou to Messrs. J. Dejardin Th. Luders & Co. PORT AU PRINCE, February 29, 1904. GENTLEMEN: I acknowledge receipt of your two letters of 26th November, 1903, and 3d of this month, the latter confirming the former, by which you FR 1904 M- -25 request me to obtain from His Excellency the President of the Republic a license for you as consignee merchants. Your demand was accompanied by the voucher of the bank, establishing the payment of the license tax, amounting to the sum of $150. I hasten to announce to you that His Excellency the President of the Republic by his dispatch of the 27th of this month, has informed me that he has decided not to grant your demand of license, has left to me the care, in notifying you of this decision, to reimburse the tax paid to the treasury, and to accord you a convenient delay to liquidate your commercial affairs. In consequence I hold at your disposal the 150 gourdes, which will be paid over to you by the paymaster of the department against receipt in duplicate. As for the delay which is granted to you, my colleague of the department of the interior will notify you of same, this question being for his determination. Receive, etc., CAJUSTE BIYOU. [Inclosure 2.] Mr. Schwedersky to Mr. Powell. PORT AU PRINCE, March 3, 1904. SIR Referring to my letter of protest of the 2d instant, I beg to add to same that I have omitted to state that, besides the interests mentioned and owned by my firm, I am personally largely interested in important mining concessions obtained from the Hatien Government, for the exploration of the mining concessions considerable money has been expended. G. SCHWEDERSKY. Yours, respectfully, Mr. Terres to Mr. Hay. No. 1383.] AMERICAN LEGATION, Port au Prince, March 7, 1904. SIR: I have the honor to transmit herewith inclosed a letter received at this legation with the request that the same be forwarded to the Department of State. As will be seen thereby, the house of G. Keitel & Co. has been informed that a patent to continue their business will not be granted to them, thus forcing the firm into liquidation. Mr. Anton Jaegerhuber, an American citizen, is largely interested in the firm. He is now in Europe, and I presume will present his case to the Department for consideration. I am, JOHN B. TERRES. [Inclosure.] Messrs. Keitel & Co. to Mr. Powell. PORT AU PRINCE, March 2, 1904. SIR: We wish to bring to your notice that the Haitian Government has refused by letter to grant to the house of G. Keitel & Co. a patent for the purpose of continuing to conduct their business in this city of Port au Prince, and by the same letter requesting the firm to enter into liquidation of their affairs and that a reasonable delay will be given to liquidate. Mr. Anton Jaegerhuber, now absent in Europe, is the principal partner in our firm, he being an American citizen, and would be a very heavy loser if this arbitrary demand of the Haitian Government is upheld. We will bring the case before Mr. Jaegerhuber by letter and request him to take such necessary steps to enter a protest to the American Government at Washington for the protection of his rights. |