Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 1, 1879
No. 243.
Mr. Langston to Mr. Evarts.
Port au Prince, Hayti, January 24, 1879. (Received February 10.)
Sir: I have the honor to transmit, herewith inclosed, copies of the dispatches which, up to this time, compose the correspondence not already forwarded to the Department, as passed between this legation and the Haytian Government, having reference to the consular charges levied and collected under the law of August 23, 1877.
I am now fully advised with regard to the position as well of the French and German as the British Government, on this subject, and I am able to state that the representatives of the governments named have now under consideration the project of a paper which will probably be adopted by them, and be presented as an identic protest against [Page 547] the collection of the charges referred to. The considerations submitted in this paper are substantially those dwelt upon by me in my several dispatches on the subject, and, if the paper is presented, will serve to convince the honorable secretary that I am not the only representative of a foreign state, residing near his government, who is opposed to the levy and collection of the charges in question, and from whom a wise and positive protest emanates in moderate but firm terms.
As bearing upon this general subject, and to advise you as fully as may be with regard thereto, I beg to inform you that the present secretary of state for foreign affairs, Mr. L. Ethéart, is the author of the act enjoining the consular charges under consideration, and feels not only quite confident of his ability to defend his work in this behalf, but would experience special satisfaction did he find himself really able to do so. I await your instructions with regard to the closing portion of his last dispatch, in which, I am informed, that the honorable minister of Hayti residing near our government will be directed to bring this matter to the attention of the cabinet at Washington, in order to a speedy, definitive solution.
I have, &c.,
Mr. Ethéart to Mr. Langston.
Port au Prince, December 7, 1878.
Mr. Minister: Among the different questions actually pending between the legation of the United States of America and my department, with regard to which I shall have the honor to write you in succession, in order to arrive as soon as possible at a definite solution, I shall approach with you to-day that which concerns the law upon the new consular taxes.
It appears from the dispatches that you have written to this department the 6th and 26th of December, 1877, and the 3d of May of the present year, that considering the new imposition created by this law as a distinct duty of importation upon the commerce of the United States; as an indirect contravention of the spirit and letter of the treaty in force between the United States and Hayti; as a non-observance of the reciprocity which, in view of this convention, the two countries ought to maintain in their commercial relations; as a measure which, in its application, is prejudicial to American commerce, you protest, in the name of your government, against the law above mentioned, and ask my government to suspend its execution and make reimbursement to American citizens who have unjustly paid these taxes since the law was put in force.
To these considerations which you have presented, one of my predecessors, Mr. F. Carrié, replied on the 13th December, 1877, and on the 10th of January last, giving you to understand the opinion of the government on this question, and did not fail to expose at length, on his side, arguments with regard to the purpose of the law.
“The new consular tax,” he said, “does not only affect American merchandise, but also that of all foreign countries, and in a general and equal manner. It establishes no privileges, and therefore cannot constitute a contravention to the spirit and the letter of the treaty between the two countries, which provides that the United States must always be treated on the basis of the most favored nation.”
While giving you the assurance of the profound respect of the government for the treaty concluded between the two countries to their reciprocal advantage, the chief of this department shows/by incontestable facts, that there does not exist in the law of the 23d of August any absence of the sentiment of reciprocity, of which the two governments ought to give proof, one toward the other, with regard to the commercial relations of the two republics; and, that American interests are in no wise injured by this legislative provision.
The principle of the consular tax has existed twenty years; has never provoked any protest, not even on the part of the United States in 1872, when, under the empire of our treaty, a law increased our duties on importations 25 per cent.; the law of August [Page 548] 23 has merely established duties which are truly proportional, more equitable than any created since 1858; at the same time that new taxes are levied by reason of the financial necessities of the country; the duty of 1 per cent. upon invoices of merchandise does not affect American commerce any more than that of other countries which are in communication with us, since the Haytien markets, far from regulating foreign markets are regulated by them; so far as it concerns the United States this assertion is justified by the fact that since the enforcement of this law, American merchandise sent here has not been reduced in price in the markets of the United States; the American producer is not affected by the tax; the internal consumption of Hayti alone hears all the charges ordinarily imposed upon invoices of merchandise, and it is that exclusively which bears also the burden of the new consular tax; it is acknowledged that there exists in all countries consular charges (des frais de chancelleries de consulat) which are collected according to the usages and wants of each nation; an excessive duty only can cause the diminution of consumption in a country, but the new tax with us of 1 per cent. on invoices is in no wise excessive, only affecting our importation to the extent of about $100,000 upon a total value of $2,000,000 received; it is, then, an annual impost of 10 cents more that our population, if estimated at 1,000,000 souls, will have to pay, which cannot limit its consumption.
Mr. Carrié adds to this last consideration that if against the conviction of the government, the internal consumption of Hayti would diminish from the effect of this law, the maintenance of the resources of the state being a matter of the highest importance to it, it will be for the government in its own interest, as it may be advised, to propose to the chambers the abrogation of a legislative provision contrary to the Interest of the public treasury. But to that point, the executive has not the power to suspend the execution of a law of his own initiative, a law that the chambers have voted, and he has promulgated.
I have nothing to add, Mr. Minister, to the arguments above mentioned, with which my predecessor has combated the objections contained in your dispatches of the 6th and 28th of December past. They elucidate perfectly the question in debate, and establish the right and the duty of the government to create, as it has done, the new consular imposition, which, it has been demonstrated above, is not in any wise prejudicial to commerce, foreign and American. Then, again, you did not enter further upon these considerations in your last dispatch, which proves that they meet your entire approbation.
There is only left to me to discuss with you the argument according to which, “if it be granted,” you remark, “that Hayti in the exercise of her sovereignty has the right to impose taxes upon importations as she may judge convenient; friendly nations, having intercourse with her, have a right to expect that such acts of sovereignty will be exercised on her own territory, and that she will not seek to avoid the condition or obvious character of the tax, by making her consuls in foreign countries collectors of imposts in those countries.”
It appears to me that the argument is not entirely free from reproach.
The receipts accruing under the law of August 23 on consular visas are collected in the United States by our various consulates, and paid over to the Haytian legation, whose residence (l’hôtel), if it may be permitted to invoke, in aid in this case, the privilege of exterritoriality, forms part of the territory of our republic. They are then levied upon our territory as taxes levied in Hayti by foreign legations are upon foreign territories. Then, again, if the figures, which have been forwarded by our legation at Washington, are correct, the Federal government, by its consular taxes, receives in the neighborhood of $1,700,000 annually, from which sum there is to be deducted the expenses incurred by the diplomatic and consular corps, estimated at $1,000,000, about, which leaves a surplus of $700,000.
Why, then, should the Haytian Government be hindered from using the same procedure, and draw an income which is much smaller, barely covering the expenses and the salaries of our several legations? Have we not, also, treaties with other powers, and why do they not continue, as the United States, after the reasons which we have given, to persist in their manner of viewing this question?
So far as it concerns the duties collected by the Haytian Government on the territory of the United States, one might adduce the other consideration, which you will recognize as of great value in the question. Do governments, which have recourse to their credit and to the loans, which are the consequence thereof, not tax their bonds (litres de rente) or their personal effects (valeurs mobiliéres), and has any one ever thought of contesting their right of being benefited by a tax levied upon foreign capital, when the loan is not national, and upon a territory which is not theirs?
The question which occupies us, already dates far back, Mr. Minister; it will soon be one year that it has been under discussion, without ability to bring about a solution, and, I believe, that it is necessary, in its present condition, that it be placed directly before the cabinet at Washington. My government has decided, therefore, to instruct our minister in the United States, in order that on his part he may take such action as will result in a definite solution; this does not hinder us from continuing to [Page 549] discuss the question, if you believe that it has not reached the point which necessitates the action we propose.
It is in these sentiments that I have the honor, Mr. Minister, to present you the renewed assurances of my highest consideration.
The secretary of state for foreign affairs:
Mr. Langston,
Minister Resident, &c., &c., &c.,
Mr. Langston to Mr. Ethéart.
Port au Prince, Hayti, January 18, 1879.
Sir: I have heretofore, on the 26th of December last, acknowledged the receipt of your dispatch dated December 7, 1878, having reference to consular impositions made under the law of the 23d of August, 1877. I desire now to offer in answer to your dispatch, several considerations. If I repeat and insist upon the correctness of the objections already submitted, it is because I am still of the opinion that the arguments made by you and your excellent predecessor, in defense of the legislation referred to, and the consular charges enjoined, are inconclusive and unsatisfactory. And, besides, I beg you, if in the sequel it appears that I have not made direct and special allusion to each consideration Offered by you in your dispatch, not to conclude that I admit as true the consideration not thus specially mentioned. As heretofore, the general scope and purview of any one, certainly the whole of the reasons which I shall now offer, will reach, and, as I believe, discover, the fallacious character of all that is contained in the correspondence on the part of your government as matter of defense of the consular charges in debate.
In considering the matter in difference between us, the course which justice, duty, and interest enjoin upon your government with regard thereto, it is well that you remember that the Republic of Hayti has made with no other nation such treaty as the one made by it with the United States of America. The words of such treaty, especially those of its preamble, which were intended to illuminate and illustrate the phraseology of its several provisions, cannot be held in this discussion as without special meaning, but the rather, as significant in the broadest and best sense. I refer to such words as these:
“And to place their [the United States of America and the Republic of Hayti] commercial relations upon the most liberal basis, have resolved to fix, in a manner clear, distinct, and positive, the rules which shall, in future, be religiously observed between the one and the other, by means of a treaty of amity, commerce, and navigation.”
What is the promise, and what the pledge of these words? Certainly that in dealing with the commercial interests of the one and other government, the rule to be adopted is that founded upon “the most liberal basis.” Is such the rule adopted and enforced under your law of the 23d of August, 1877? Let this question be answered in the light of what is attempted to be done by the law.
First of all, according to the very terms of the law, the charges are levied for a double purpose: first, to meet the consular exactions; and, secondly, to raise funds for the public treasury.
For the first purpose 15 per cent. of the amount collected is used; and for the second, 85 per cent. And this duty is levied upon articles, except perhaps the money mentioned in the second clause of the first article of the law, which, when they reach the ports of your country, are subject to other heavy custom-house duties, of which you have such abundant and exact knowledge, how can you reasonably maintain that the consular exactions referred to are not, under the circumstances, excessive? Nor do you meet this objection of exorbitance by saying, in reply, that they are eventually paid by the Haytian consumer. And more than this, being excessive in and of themselves, and especially so, in view of the circumstances mentioned, they tend to, and do, obstruct and retard the commercial interests of the two governments.
But in so far forth as the charges under consideration are levied, and collected for any other than consular purposes proper; in so far forth as they are levied and collected to meet the general wants of the government, as declared in the very terms of the law, and admitted in your dispatch, they are contrary to the well-defined usages, with relation to the consular service, as recognized by the great powers of the earth. I cannot conceive how it is possible for you to deny the correctness of this position. If so, you must destroy all those peculiar characteristics which distinguish the diplomatic and consular service, and make the charges connected therewith special and [Page 550] unique. You must show that one government has a right to levy of its own volition, without reference to international obligations, expressed or implied, and to collect by its consular agents within the jurisdiction of another, such taxes, without reference to the purpose for which they are to be used, as may suit its convenience and wants. Is it necessary that I suggest that such proceeding would be very justly regarded as altogether unusual and objectionable? But you reply that the charge levied by your law has to do simply with merchandise intended to be shipped from a foreign country to Hayti. I admit it. But the principle remains the same; and your charge is nothing, other than an old ad valorem duty levied upon merchandise in the country from which it is to be exported by the government of your country into which it is proposed to import it, such duty being levied upon the fallacious and indefensible doctrine, that through the indirect instrumentality of the consular service the foreign government may collect, after levying, by a law passed by its own legislature, such duty, within the territory and jurisdiction from which the merchandise is to be shipped.
And thus the objection which I now urge becomes double in character, not only violative of all well-defined and wise usages as regards the consular service, but violative of a fundamental rule of national sovereignty as regards the matter of taxation. And this last position you admit when in your dispatch you invoke, in defense of this tax, the doctrine so well illustrated in the designation “exterritoriality.” But here you can find no help, for this doctrine in this case can have no application, especially when these charges, according to the language of the law, are made general as to their purpose and are collected for the benefit of the public exchequer. The words of the law in its preamble being: “Qus l’impôt prélevé par les consulate ne profite ancunement à la caisse publique,” these words sufficiently reveal the object of your law, the purpose of your consular exactions.
For these good and all sufficient reasons, I beg to enter, with renewed earnestness and emphasis, the solemn protest of my government against the collection of the consular impositions and charges referred to, and to demand the reimbursement of all sums heretofore paid by American citizens.
Seizing this opportunity, Mr. Secretary, to tender you the assurance of my most distinguished consideration,
I am, &c.,