No. 265.
Mr. Preston to Mr. Evarts.

The undersigned, envoy extraordinary and minister plenipotentiary of Hayti, has the honor to acknowledge the receipt of the note which was addressed to him on the 22d ultimo, by the honorable Secretary of State, in reply to his communication of the 16th of the same month, relative to certain consular fees established by the Haytian law of August 23, 1877.

The undersigned therein cited, in support of his opinion, several articles of the treaty invoked by the minister resident of the United States at Port au Prince, the spirit and letter of which, he maintained, were violated by the law above mentioned.

In his note, the honorable Secretary of State does not consider these articles applicable to the matter under discussion; he stops at the preamble of the convention, calling the attention of the undersigned to the principal object of that instrument, which was to place commercial relations between the two countries on a more liberal basis.

In his view, the law is not in harmony with the preamble above referred to. He adds that the charge of one per cent. on the amount of invoices for a consular visa, as authorized by the act in question, is not only illiberal in its character, but that it may be considered as a duty on exportation; a duty which the Constitution of the United States [Page 588] does not permit the Federal Government to levy, and to the collection of which by Hayti in American ports that government cannot consent.

Yet the honorable Secretary of State thinks that one clause of one of the treaty articles quoted by the undersigned is applicable to the point under discusion. It is that of Article XIII, which stipulates as follows: “No other or higher duties or charges shall be imposed in the United States on the exportation of any article to Hayti.” This clause, continues Mr. Evarts, is absolute; it permits neither this government nor a Haytian consul to make charges of this kind in a port of the United States.

The preamble of the Haytian law admits, says the Secretary of State, that its object is to benefit the treasury of Hayti. Other charges established by it likewise appear to him excessive.

These same charges, established by other powers, may not be uniform; but, in the opinion of the Hon. Mr. Evarts, none reach as extravagant figures as those permitted by the tariff under discussion or impose an export duty on merchandise.

The Department of State, adds Mr. Evarts, thought that the remonstrances addressed on this subject, through Mr. Langston, to the cabinet of Port au Prince, would by this time have induced the Haytian Government to abolish or modify this law. Having been disappointed, however, in this expectation, he hopes that the policy of Hayti, which is represented as being adverse to any measure that is prejudicial to commerce as this measure is charged with being, will not delay the abrogation of this restriction.

The note of the 22d of January, contains the following passage: “According to advices received from the legation of the United States, Mr. Preston is in error in stating that this government is the only one that has complained of the effects of the law; on the contrary, these advices declare that the representatives of other powers have made formal complaint.”

The undersigned regrets to perceive the difference of opinion which exists between his government and the Secretary of State on the question which forms the subject of this correspondence.

It seems to him that the settlement of the question in favor of his government will depend upon the demonstration which he will hereafter furnish, tending to prove that the law of August 23, 1877, “is not in contravention of the preamble to the treaty of 1864,” and that “the fees charged by Haytian consuls cannot be considered as a tax on exportation established by Hayti in foreign ports.”

If the preamble of the aforementioned treaty says “The Republic of Hayti and the United States of America, desiring to make lasting and firm the friendship and good understanding which happily prevail between both nations, and to place their commercial relations upon the most liberal basis,” the same preamble adds, “have resolved [Hayti and the United States] to fix, in a manner clear, distinct and positive the rules which shall, in the future, be religiously observed between the one and the other, by means of a treaty of amity, commerce, and navigation.” (The words underscored are not so in the original.)

As above provided, the two countries, with a view of placing their commercial relations on the most liberal basis, have fixed, in a manner clear, distinct and positive by a solemn treaty, the rules which are in future to be religiously observed by them. These rules are found in the thirty-three articles of the said treaty, the sense of which is too precise to allow a misunderstanding between the two governments to exist on any point referred to in that instrument.

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The stipulations of the treaty is a reflex of the liberal sentiments which dictated it; each country nevertheless reserves its liberty in the exercise of its sovereignty as regards the regulation of its internal interests.

The undersigned does not deem it necessary to expatiate further on the foregoing subject in order to demonstrate that the preamble of a treaty can in no case take precedence of its clear and precise stipulations.

The government of the undersigned does not regard as admissible the theory of the Department of State, which assimilates the fees for a consular visa collected by Haytian consuls in foreign countries, however high they may appear to be, to a tax on the exportation of American products to Hayti; a tax which the Constitution, says Mr. Evarts, does not allow the Government of the United States to levy. A tax on exportation does not, therefore, exist in the United States; but the clause of Article XIII, which is invoked by the honorable Secretary of State, leaves it to be supposed that one may be established. It says, “No other or higher duties or charges shall be imposed in the United States on the exportation of any article to Hayti, nor in Hayti on the exportation of any article to the United States, than such as are or shall be payable on the exportation of the like article to any foreign country.”

According to the most generally accepted authorities, this duty is a tax levied by a state on its own productions, on their leaving its ports, for its own benefit, and paid by the producer.

This tax exists in Hayti, and existed before the date of its treaty with the United States. It is also imposed in other countries.

It is not the mission of the undersigned to discuss the economy of this fiscal measure. He thinks that, if the charges fixed by the law of August 23 can be considered as a tax levied on merchandise, it might rather be likened to a duty on importation, not on exportation, especially as it is paid by consumers in Hayti.

His government has never complained of the charges for consular visas collected by American consular officers on invoices of Haytian productions sent from the ports of Hayti to those of the United States, and on other papers relating to the cargoes of vessels, although the charge on the latter is often prejudicially exorbitant. Nevertheless, the undersigned takes the liberty, in this connection, to call the attention of the Secretary of State to a fact which has been recently brought to his notice.

In October last a cask of rum was shipped from Port au Prince to New York; it contained 48 gallons, and was valued at about $1 per gallon. The shipper was obliged to pay the consul-general of the United States, at Port au Prince, $2.50 for the visa of his invoice, which represents more than 5 per cent. As this Haytian production is subject in the United States to a prohibitory duty of about 200 per cent., and as the operation was certain to be attended with loss, the shipper instructed his correspondent to return it to him. On its return to Port au Prince, the producer will again have to pay $5 to the consul-general of the United States, for certifying that the merchandise was discharged in Hayti. Thus a consular officer of the United States will collect a tax exceeding 15 per cent., in a Haytian port, on the exportation and reimportation of an article of Haytian production, which is consumed in Hayti.

The undersigned thinks that he has proved, by this example, which is taken from a hundred others of like character, that, in many cases, Haytian charges in the United States are not more exorbitant than those of this country in Hayti.

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As to the liberality of Hayti in its commercial relations with the great republic of the north, it will be sufficient to compare the tariff of Hayti with those of the European possessions and of the independent states of this hemisphere lying south of the United States, excepting free ports, such as St. Thomas, Colon (Aspinwall), and Panama, to see that the principal articles exported from the United States are admitted there at lower rates.

The undersigned will not pursue this subject further; he thinks he has clearly shown that the Haytian law is not a violation of any stipulation of the treaty of 1864. He also thinks that he has shown, with equal clearness, that the visas of consular invoices cannot be regarded as a tax on exportation in contravention of one of the clauses of Article XIII of the said treaty.

He agrees with the honorable Secretary of State that, in the preamble to the law in question, it is provided that a portion of the consular receipts is to benefit the public treasury; in this, however, he can discover nothing at variance with the convention between the two countries or with the law of nations. Is not the same method successfully practiced by the Treasury Department at Washington? In proof that it is, the undersigned would refer to the following extract from the Revised Statutes of the United States, p. 308, § 1734 (really, § 1733):

All moneys received for fees at any vice-consulates or consular agencies of the United States, beyond the sum of one thousand dollars in any one year, and all moneys received by any consul of consul-general from consular agencies or vice-consulates in excess of one thousand dollars in the aggregate from all such agencies or vice-consulates, shall be accounted for to the Secretary of the Treasury, and held subject to his draft or other directions.

The Government of Hayti, moreover, cannot admit that the enforcement of the law in question is prejudicial to the commerce of the two republics. Although the statistics of one year are not usually sufficient to demonstrate the effects of a fiscal measure, the undersigned has consular reports in his possession which show that during the period that has elapsed since the date when the law under discussion took effect, the amount of the imports and exports has suffered no diminution either in respect of the volume of the productions imported or exported, or of the tonnage employed.

If the total value on both sides is inferior to that of former periods, the great depreciation must be considered, which, during this latter period, has existed in the values of American and Haytian productions. It is, moreover, the first duty of the government of Hayti, having respected its international engagements, to protect its own interests on fiscal questions, whether it views them in relation to the balance of its trade, according to the teachings of the school now in favor in the United States, or according to those of the school that has made so great progress in Europe daring the last forty years.

The Secretary of State is certainly not unaware that both the Government of Hayti and that of the United States have each, in the exercise of its sovereignty, modified their tariffs without any protest on the part of foreign powers, so long as their international engagements were maintained.

In making these modifications, whether they were designed to increase or diminish the duty on foreign goods, each government had in view only the protection of its own interests or of its fiscal resources.

As to the verbal statement made to the Hon. Mr. Seward on the occasion of a visit of the undersigned to the Department of State, on the 2d of January last, to the effect that the Government of the United [Page 591] States was the only foreign government that continued the discussion the undersigned has, in confirmation thereof, both the advices which he had received at that time and the following extract from a note addressed by the secretary of state of foreign relations of Hayti, on the 7th of December, 1878, to the minister resident of the United States.

“Have we not,” wrote Mr. Ethéart to Mr. Langston, “also treaties with other foreign powers, and why do they not continue, as do the United States, after the reasons which we have stated, to persist in their manner of viewing this question?”

Immediately after the law went into operation, the minister resident of Her Britannic Majesty made representations against its enforcement, but the explanations furnished by the Haytian cabinet having been satisfactory and accepted, no further action had been taken in relation to the matter at the date of the last advices received from Port au Prince.

The undersigned avails himself of this occasion to renew to the honorable Secretary of State the assurances of his very high consideration.