No. 244.
Mr. Langston to Mr. Evarts.

No. 111.]

Sir: I have the honor to transmit, herewith inclosed, for your information and consideration, copies of dispatches not heretofore forwarded to you, passing between this legation and the Government of Hayti, with regard to the discriminating tax upon patents or licenses.

I invite your special attention to the contents of the dispatch from the Haytian Government, as showing the interpretation of the treaty of 1864 insisted upon by it, and the practice which is adopted in matters pertaining to trade with relation to American citizens residing here and doing business.

I am quite certain that the view which I take in replying on this subject must receive your approval.

I am, &c.,

[Inclosure in No. 111.—Translation.]

Mr. Minister: The law establishing the quota of the duty on licenses, against which you protest in your dispatch dated May 3, is of the 14th of August, last year.

[Page 551]

As you are aware, the second paragraph of article 174 of our constitution provides that laws relating to duties can only be enforced for one year, unless renewed, and the law of the 30th of October, 1876, had been continued for the budget of 1877–’78 by that of the 14th of August. Your protest, then, came nine months after the law went into effect, and at a period of only three months prior to its expiration.

This is, then, a first point of the question, to which I refer simply to attract your attention, without expatiating thereupon and making of it a peremptory argument against that which you plead in your dispatch of the 3d of May, the analysis of which, with your permission, I am about to undertake.

While placing yourself upon the text of article 5 of our treaty with the great republic which you represent, which reads as follows, “The citizens of each 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,” you maintain that the law of 1877 is in formal contradiction of this treaty, since it establishes a quota (quotité) of licenses which is dearer for foreigners, and especially for American citizens, than for the Haytians.

Consequently, you make protest energetically against the sanction of this law in its provisions which may concern American citizens, and against the payment of the obligatory tax imposed upon them on account of their business, taking all precautions that sums exacted from your citizens contrary to the stipulations of our treaty shall be reimbursed.,

Our treaty with the United States is fourteen years old, and, in presence of your protest, I have naturally inquired whether, during this long period, American citizens, have been allowed to pay the same commercial licenses as Haytians, and my researches upon the subject enable me to present you the following table, subjoined, drawn out according to our laws of finance from 1864 to 1878:

From 1864 to 1869 (the law of December 12, 1860, extended each year up to 1869).

foreign deposit [license]. haytian deposit [license].
First class 3,000 First class 1,500
Second class 2,500 Second class 800
Third class 2,000 Third class 600
Fourth class 1,500 Fourth class 500

1870 and 1871.—From the provisional government, February 9, 1870.

foreign deposit [license]. haytian deposit [license].
First class 40,000 First class 20,000
Second class 33,333 Second class 13,333
Third class 26,666 Third class 10,000
Fourth class 20,000 Fourth class 8,333

1872–’73.—The law of August 19, 1871, was extended for 1873 by the law of the 23d of August, 1872.

foreign deposit [license]. haytian deposit [license].
First class 60,000 First class 30,000
Second class 50,000 Second class 20,000
Third class 40,000 Third class 15,000
Fourth class 30,000 Fourth class 12,500

N. B.—All the different laws provide that the license of foreigners whose vocations are other than that of merchant consignees shall be double that of the Haytians.

1876.—Decree of the Domingue Government, December 23, 1875.

foreign deposit [license]. haytian deposit [license].
First class P. 1,200 First class P. 150
Second class 800 Second class 100
Third class 600 Third class 75

Foreigners under the authority of this decree paid five times more for patents than Haytians for exercising any other calling.

[Page 552]

1877–’78.—Law of October 30, 1878, extended by that of August 14, 1877.

foreign deposit [license] haytian deposit [license]
First class P. 300 First class P. 150
Second class 250 Second class 125
Third class 200 Third class 100
Fourth class 150 Fourth class 75

Always the same licenses were doubled for other occupations exercised by foreigners.

Thus in the matter relating to the law on licenses there has existed a marked difference in our country between the condition of American citizens and that of our own people. How is it, then, that from 1864 to 1877, no protest, excepting that made under the fallen government, upon which I shall take occasion to dwell, has been produced on the part of the Government of the United States against the execution of our laws of finance?

Without detracting from the advantage of a prescription of thirteen years, I believe there is only one way of answering this question; it is, that the Government of the United States has never viewed article 5 of our treaty in the light in which through your intervention it is considered to-day, and that it has never compared the impost on licenses with the contributions mentioned in article 5. The following article, which reads thus, proves if:

“The citizens of each of the contracting parties shall be permitted to enter, sojourn, settle, and reside in all parts of the territories of the other, engage in business, hire and occupy warehouses, provided they submit to the laws, as well general as special, relative to the rights of traveling, residing, or trading.”

This provision declares sufficiently that in both countries there exist certain shades of distinction between the condition of foreigners and that of native citizens, and that each is bound to conform to the laws, general and special, regulating the matter.

In support of this argument, I will take the liberty to remind you that there existed among us up to the end of 1876 a duty of consignment of 2 per cent. for Haytians and 6 per cent. for foreigners, and that this difference, no more than the law of patents, had ever called forth, under the authority of our treaty, any protests from your government.

It is appropriate to mention the protest which your predecessor, Hon. Mr. Bassett, noted in the time of the government of General Domingue. At that time it was a question not of a law which had received the sanction of the Chambres des Communes and of the Senate, the only way in which impositions maybe voted legally in our country, but of a decree dictated by the sole will of the executive, in violation of all the principles of right, and of one so exaggerated in its figures that it could not reasonably be defended. Foreigners were, in fact, taxed by the law on licenses eight times more than the Haytians!

Thus, when the government of that period was called upon to discuss the question which now occupies us it was perplexed, and could do no better than to call to its aid article 42 of our treaty, thus seeking to terminate a convention concluded in the reciprocal interest of the two republics. Such certainly are not the views of the administration in the present condition of the question.

I had the honor of making this declaration to your predecessor on the 16th of September, 1876.

My government will continue to defend its right to interpret, in the sense which has always been given, our treaty with the United States. If there should come to pass, which may God forbid, differences of opinion between the chief of the legation of the United States and the department of foreign affairs, the last named will always make it a duty to send instructions to the minister plenipotentiary of Hayti in the United States, in order that the point litigious be directly laid before the cabinet at Washington, that a prompt solution may be arrived at in the reciprocal interest of the two republics.

With these sentiments, I have the honor to beg you to accept the assurance of my very high consideration.

Secretary of state of foreign affairs:


Mr. J. M. Langston,
Minister Resident of the United States of America, Port-au-Prince.

[Inclosure 2 in No. 111.]

Mr. Langston to Mr. Ethéart.

No. 40.]

Sir: In reply to your dispatch of December —, 1878, the receipt of which I have heretofore had the honor to acknowledge, I have the pleasure to assure you that, in the [Page 553] discussion which occupies our attention concerning the matter of discriminating duties upon licenses, I come to this discussion bringing no new interpretation of the fifth article of the treaty of 1864 as the same has been established by our government; for my path has been made plain, even luminous, by the able and concise argument of my predecessor, and the action of your government when you were its honored representative and announced its conclusions with regard to this same subject, in response to the protest of my government.

I am not forgetful of the discrimination which you undertake to make in your late dispatch between the discriminating tax, as established by a decree under Domingue, and your present legislative enactment. But if the tax was wrong, contrary to the treaty, under the decree, even if quite excessive, what makes it exactly right under the present enactment when the discrimination is equally made, if the charge is, in the latter case, a little less? The principle is the same. Perhaps you have forgotten that when this subject occupied the attention of our governments in 1876 my own government held and advanced the opinion that the fifth article of the treaty between the United States and Hayti of the 3d of November, 1864, was intended to protect and should protect our citizens from any discriminations in matters of trade to the advantage of Haytian citizens.

Consequently no acquiescence could be given to a license law or decree creating such discriminations by my government; and it was upon such ground that the decree to which you refer was held contrary to the treaty and discontinued, and upon which objection is made to the law now enforced by your government to the disadvantage of American citizens doing business in your country. And, with your permission, I beg to state that one would find it difficult, indeed, in the light of any accepted principles of interpretation, to reach any other conclusion with regard to the meaning and application of the fifth article of the treaty. I am, therefore, Mr. Secretary, of the opinion heretofore presented, and must insist upon the protest already made in the name of my government and the restitution therein demanded.

With sentiments of distinguished consideration,

I am, &c.,


Hon. L. Ethéart,
Secretary of State of Foreign Affairs, Fort au Prince, Hayti.