Papers Relating to the Foreign Relations of the United States, For the Year 1887, Transmitted to Congress, With a Message of the President, June 26, 1888

No. 385.
Mr. Bayard to Mr. Thompson.

Department of State,
Washington , March 8, 1887.

No. 74.]

Sir: I transmit for your information copies of certain executive documents relating to the claims of A. Pellietier and A. H. Lazare against Hayti.

I am, etc.,

T. F. Bayard.

[Inclosure in No. 74]

[Senate Ex. Doc. No. 64, Forty-ninth Congress, second session.]

Message from the President of the United States, transmitting report of the Secretary of State, in response to Senate resolution of December 8, 1886, upon the claim of Antonio Pellietier et al. against the Republic of Hayti.

January 21, 1887.—Read and referred to the Committee on Foreign Relations.

February 1, 1887.—Ordered to be printed.

To the Senate:

I transmit herewith a report of the Secretary of State in answer to the resolution of the Senate of December 8, 1888, relative to the claims of Antonio Pellietier and A. H. Lazare against the Republic of Hayti.

Grover Cleveland.

Executive Mansion,
Washington , January 20, 1887.

To the President:

The Secretary of State, to whom was referred the resolution of the Senate of December 8, 1886, calling upon the President to communicate to that body, “if not inconsistent with the public interests, copies of the awards made by the arbitrator in the case of Antonio Pellietier and in the case of A. H. Lazare against the Republic of Hayti, under a protocol made by and between.the Secretary of State of the United States and the minister plenipotentiary for the Republic of Hayti, dated 24th May, 1884, together with such action as may have been had in relation thereto” has the honor to make the following report:

I.—Pelletier’s Case.

The case of Pellietier, which is the first referred to in the resolution before me, was first brought to the attention of this Department by a dispatch, dated April 13, 1851, from Mr. G. E. Hubbard, commercial agent of the United States at Cape Hayticn, who reported, in language to be hereafter more fully quoted, that Pellietier was under arrest in Hayti on the charge of attempted enslavement in Haytian waters of Haytian citizens. Mr. Seward, then Secretary of State, after a prolonged correspondence, finally refused, on November 30, 1863, to interfere with the action of Hayti in the matter, taking the position in an instruction to Mr. Whidden, then United States commissioner in Hayti, that “his [Pellotiers] conduct in Hayti and on its coasts is conceived to have afforded the reasonable ground of suspicion against him on the part of the authorities of that Republic which led to his arrest, trial, and conviction in regular course of law, with which result it is not deemed expedient to interfere.”

Early in 1864 Pelletier escaped from Hayti, and on July 18 of that year brought his claim formally before the Department in a long memorial. Nothing was then done, however, by this Department, except in response to a call of the House of Representatives to send a copy of all the papers in the case on record to that body on April 3, 1868. No further action was then taken by the House.

A second application was made to the Department in 1871. The result is stated in the following note addressed to then counsel of Pelletier:

Department of State,
Washington , September 26, 1871.

Messrs. Bartley and Casey, Washington:

Gentlemen: Your letter of the 23d instant, relative to the claim of Antonio Pel-letier against the Republic of Hayti, has been received. In reply, I have to inform you that after careful consideration this Department has found no reason to dissent from the opinion expressed by Mr. Seward in regard to the case in his instruction to Mr. Whidden, United States minister to Hayti, of the 30th of November, 1863. That instruction is on page 56 of the document printed by order of the House of Representatives, to which you refer. Furthermore, it is understood to be customary to at least suspend the prosecution of any claim on a foreign Government when either House of Congress shall have called for the papers with a view to consideration of the subject. This Department is not aware that the House of Representatives has reached any result in this matter.

I am, etc.,

J. C. B. Davis

,
Acting Secretary.

The claimant’s next application was to the Senate. His case was, on January 6, 1874, referred to the Senate Committee on Foreign Relations. On June 9, 1874, Mr. McCreery presented from that committee a unanimous report, a copy of which is annexed, taking, though with greater elaboration, the same ground as Mr. Seward. From this report I shall have occasion to make several citations.

The claimant then applied once more to the House of Representatives, and on January 11, 1878, a further memorial and documents from him were presented, and were followed by a resolution of that body declining to offer any recommendation as to his claim.

On January 22, 1878, Pelletier again appeared before this Department with a series of ex parte statements which were referred to Mr. O’Connor, then examiner of claims and Solicitor of the Department. Mr. O’Connor made two reports, one on February 19, 1878, and the other on March 29, 1878, in the latter of which he maintained that on the claimant’s case, as exhibited in the proof submitted by him to the Department, there was ground of a call on Hayti for redress. Instructions to this effect were sent by Mr. Evarts, Secretary of State, to Mr. Langston, then minister to Hayti, who made this call, asking for an arbitration, and concluding as follows:

“I am instructed, then, should your Government desire to make no further answer to the justice of the claim of Captain Pelletier, to propose to it a prompt and impartial arbitration of the matter, and in default of such arrangement I am instructed further to state that the Government of the United States will require its satisfaction.”

Under this pressure the Government of Hayti, which had at first peremptorily refused to arbitrate, ultimately consented to an arbitration; and an agreement for this purpose was entered into on May 24, 1884, between Mr. Frelinghuysen, Secretary of State, and Mr. Preston, minister for Hayti. This agreement, however, never was submitted to the Senate, and hence never became a law of the land. Consequently, as will hereafter be noticed more fully, it vested in the arbitrator no distinctively judicial prerogatives.

Under this agreement the honorable William Strong, for a long time a distinguished member of the Supreme Court of the United States, was appointed arbitrator. The sessions of the arbitration began on November 10, 1884, and continued until April 27, 1835. During these sessions much documentary testimony was submitted, witnesses sworn and examined, and evidence received or rejected, by the arbitrator, and arguments on both sides presented. An award was made by the arbitrator on June 20, 1885, a copy of which, and of the prior proceedings of the arbitration, is annexed. Not being at the time, nor for more than a year afterwards, acquainted with the merits of the case, and having been in noways concerned in the negotiations which preceded it, I confined myself to the reporting to the Executive Mansion the fact of the filing of this award. This fact was duly noticed in the President’s annual message of December, 1885. Not long after the delivery of this message I was informally advised that there were serious difficulties in the way of the compliance by Hayti with the award. Not only was the disordered condition of her finances an obstacle, but the arbitration, it was alleged, was consented to by her at a time when such consent seemed the only escape from threatened difficulties with the United States, while the claim was one which she could not, now that the facts were fully developed, submit to without both national ruin and national disgrace. In explanation of the apparent tardiness by which the full presentation of these facts were marked, it may be mentioned that by the burning of the Haytian archives some years after the events in litigation many of the official documents in Pelletier’s as well as in Lazare’s case were destroyed, and that in both cases it is only recently that the circumstances on which they rest have been fully brought out.

On November 18, 1886, the Haytian Government filed in this Department a general remonstrance against the execution of the award. This remonstrance made it incumbent on me to enter into a careful examination of the records of the case, so far as they exhibit the merits of the claim. The results of this examination I now proceed to state.

In the autumn of 1860 the bark William, condemned at Key West as a slaver, was purchased from the marshal by a person named Packer, acting, it is alleged, for Pellietier, the claimant. The vessel was taken to Mobile, where some repairs were put on her and an American register obtained for her in the name of Edward Lee Launde or Edward de Launa, which were among the disguises assumed by Emile Delaunay, a resident New Orleans, who appears to have owned most of the property on board the bark, and who paid for her repairs and insurance without consulting Pellietier. He was, as the evidence shows, not merely the nominal but the real owner. This is the conclusion adopted by Judge Strong, who, in his award, after calling attention to the conflicting statements of Pellietier as to the ownership of the vessel, denies him any right to claim damages for its seizure and confiscation as hereafter detailed.

The vessel cleared in the latter part of October, 1860, for Carthagena, New Granada, with a cargo consisting, as declared by manifest, solely of lumber and ship bread, but which the claimant states also to have included a large amount of specie, more than two kegs of powder, and a great number of pistols and guns. The crew was composed of fourteen men besides the claimant. The seamen were foreigners, and are described by the claimant as “rowdies and high-binders.” Carthagena was reached in the latter part, of November. There a part of the cargo was sold and gold-dust, it is claimed, was purchased. A revolution then in progress having, according to Pelletier’s statement, prevent the sale of the rest of the cargo, the bark cleared for Rio Hacha, a port about 100 miles feast north-east from Carthagena on the coast of New Granada, having taken on board at least one seaman, a colored refugee named Bina, and Juan Cortez and family. Cortez, who had some freight with him, was to be taken as a passenger to Rio Hacha. Instead, however, of sailing for that port, Pellietier, driven, as he alleges, by adverse winds and currents, sailed in a northwesterly direction, not stopping until he reached Georgetown, a port on the island of Grand Cayman, 700 miles away. There Cortez, who, was evidently anxious and alarmed at being carried so far from his destination, gave up his freight at a valuation of $1,000, from which $500 was deducted for services rendered him. On December 24, 1860, the vessel cleared for Port au Prince, Hayti. No satisfactory explanation is given by Pellietier of the abandonment of his original design of going to Rio Hacha.

At Port au Prince, which the vessel reached in January, 1861, the rest of the cargo of lumber was sold; but before it was delivered, Bina, the colored refugee, and several of the crew who had been imprisoned by the Haytian authorities at Pellitier’s instance, denounced the latter to those authorities as a slave-trader.

Very naturally and reasonably—to quote Judge Strong’s words—

“the police boarded the vessel and made a partial search. They found arms and ammunition on board, an unusual number of handcuffs, * * * and they found a large number of water-casks. * * * All these things are acknowledged accompaniments of slave-trading. * * * In view of the accusation of Bina and the imprisoned sailors and of the results of the search, as well as of his [Pelletier’s] application to Maximilian for laborers to go to Navassa, the Haytian authorities evidently had strong suspicions, and I think with much reason, that the bark was a slaver out on an illegitimate cruise.”

Still, after a short delay, they released the vessel, and at Pelletier’s request, gave her a clearance for New Orleans. Instead, however, of sailing westward in the shortest and most desirable course for New Orleans, Pellietier turned northward and beat “against fresh breezes and swift currents” through the Windward Passage to the north side of Hayti. Then he put into Man-of-War Bay, in the island of Grand Inagua, to obtain, as he alleges, more ballast. The vessel drifted on a reef, so it was said, and broke her rudder fastenings; but instead of having them repaired there, Pellietier lashed the rudder with chains and endeavored to make La Plata, a port in San Domingo, in the opposite direction from New Orleans. He soon appeared off the north coast of Hayti. There he raised the French flag, and passing Gape Haytien, where there was a good harbor open to commerce, he “entered,” says Judge Strong, “Fort Liberty, an obscure port of Hayti, not open to commerce, and only about 20 miles from Gape Haytien, mistaking it, as he says, for the harbor of La Plata in San Domingo. I am unable to see how his entrance into Fort Liberté could have been due to any such mistake. The distance from Cape Haytien was too short, only about 20 miles. La Plata is nearly 100 miles east. The approaches to the two ports, as described in the sailing directions, are notably unlike, and as the land all the way from Cape Haytien must have been in sight, he must have known he was far from La Plata.”

Continuing his statement, Judge Strong says:

“At Fort Liberté he floated a French flag, never an American proclaimed his vessel to be the Guillaume Tell, from Havana, bound to Havre; ordered his men to speak only the French language, and asserted that his own name was Jules Letellier. He even caused a letter to be written to the French consul repeating these false statements, signed Jules Letellier. The excuse given for this attempted deception is that when, on entering the port, he saw the Haytian flag he was terrified, remembering his trouble at Port au Prince. I think that is a very insufficient excuse. There was no cause for any such scare, and it is difficult to believe that it existed. The bark had been given a clearance from Port au Prince, and if she was in distress that accounted fully for her being again in a Haytian port for repairs.

“The falsehoods mentioned are not all he told. He said he had been at Guadaloupe; had been obliged to thro w part of his cargo overboard, and that he had been aground on those banks. False statements when attempts to mislead very naturally awaken the suspicion of those to whom they are made, and they are in some measure evidence of guilt. Pelletier’s attempted deception was soon discovered by the French consul and the Haytian authorities, and his arrest and the seizure of the bark followed.

“In view of the facts thus mentioned, which I think are established, I can hardly escape from the conviction that the voyage of the bark William was an illegal voyage; that its paramount purpose was to obtain a cargo of negroes, either by purchase or kidnapping, and bring them into slavery in the State of Louisiana, and that the load of lumber and the profession of a purpose to go for a cargo of guano were mere covers to conceal the true character of the enterprise. In my opinion it is beyond doubt that had the bark been captured and brought into an American port, when she was seized at Fort Liberté, she would have been condemned by the United States courts as an intended slaver. And I think the Haytian authorities had such reasons for suspecting, even believing, that she was a slaver, with evil designs against their people; that they were justified in seizing her in one of their ports, and arresting the master, at least for examination. If the uncontradicted testimony of Mr. Moses is to be believed, the voyage was concocted between Delauray and Pelletier; the bark was procured for illicit use; it was manned and supplied suitably for such a purpose, and its subsequent conduct down to hovering along the coast and entering an obscure and private harbor of Hayti, under false colors, when a better one was easily accessible, are all consistent with such a purpose.

“The suspicious circumstances begin at the beginning. The transfer of the title to Delauray, as stated by Pelletier, in order to obtain registry at New Orleans; the registry at Mobile, in the name of Lee Launde, or Edward De Launa, or Edward Lee Launa; the taking powder, pistols, and guns in quantities on board without mentioning them in the manifest; the loading of about one-third of the lumber on deck when the hold was more than sufficient for it all; the assumption of a false name by the mate; the character of the crew, all foreigners and roughs; the obviously fallacious pretense that a cargo of guano was sought; the concealing the name of the ship, and false representations respecting her nationality, the port from which she sailed, and her destination; the change of the name of the master; the unusual number of manacles on board, the large number of water casks, including barrels capable of holding water, all speak with one voice. They all tend in the same direction, and collectively they almost force to the conclusion that the voyage was illicit, and that slave-trading was its object. Add to these the fact that Pelletier had applied to a Haytian to obtain 50 men and some women (blacks, of course) to assist him in obtaining guano, and I can not avoid thinking the Haytian Government, though all these facts may not have been known at the time, had ample reason for suspecting, if not believing, that the bark was a slaver, and that the design of Pelletier was to obtain a cargo of blacks from their country. Even the representatives of foreign Governments then present in Hayti unanimously expressed to the Government their opinion that Pelletier had been guilty of piracy, and that the Government was authorized to put in force against him judicial proceedings. And Mr. Lewis, commercial agent of the United States, joined Mr. Byron, consul-general and acting chargé d’affaires of Great Britain, in asking that the captain and bark, then under arrest, should not be set at liberty.” (Award in Pelletier’s case, pp. 14–16.)

The following statements to the same effect are taken from Mr. McCreery’s report of June 9, 1874:

“[Senate Report No. 425, Forty-third Congress, first session.]

“Mr. McCreery submitted the following report:

“[To accompany bill S. 255.]

“The Committee on Foreign Relations have had under consideration the bill, memorial, and papers in the case of Antonio Pellitier, and report:

“That the memorialist claims the interposition of this Government in the way of a demand upon the Haytian authorities for indemnity for the loss of the bark William and cargo, as well as for other pecuniary losses sustained by reason of his wrongful imprisonment on that island. That vessel was condemned and sold, by the judgment of the Haytian courts, as a slaver, and Pellietier and most of his crew were imprisoned as pirates.

“The purpose of Pellietier, in making this purchase and embarking on this voyage, is so remarkable that we feel constrained to transcribe it in his own language. He says: ‘Being at that time rich and prosperous, I designed to visit several ports, where I had formerly navigated when poor, and where I had friends who I believed would rejoice at my prosperity, and among whom I wished at any rate to exhibit the evidences of my success.’

“This is sufficiently disinterested, and may be a weakness too common among men who are alike happily situated; but it is somewhat surprising that one seeking to make an ostentatious display should go forth on a second-hand slaver, with a crew of ‘rowdies and high-binders’ as he describes some of his sailors on this remarkable voyage. Though partially concealed under the vanity of the exhibition, there was still alurking desire that the profits of commercial enterprise should cover at least a portion of the expenditures, and pitch pine lumber and guano were the commodities selected for the outward and homeward bound vessel. If the odor of these articles in southern climes should be annoying, it would at least be a comforting assurance to his ‘friends’ that though rich he was not proud, and would also put them more at their ease in his presence. What we fail to comprehend in human action is generally ascribed to the eccentricities of genius, and this expedition, with its apparent absurdities, may possibly find refuge under that convenient phrase.

“Now, if Pellietier intended to go to Hayti, he went at least 500 miles out of his way to reach the island of Grand Cayman, and on leaving Grand Cayman he might have taken Cortez to Jamaica, as these islands are almost in a line with Hayti. The indisposition of Madam Cortez could scarcely have been an obstacle, as Pellietier left Grand Cayman one evening and she embarked on Eden’s schooner the next morning.

“On the way from Grand Cayman to Port-au-Prince, in Hayti, he spent six days in the island of Cuba, where he had no business whatever, but kindly called that a woman and a man on board might receive medical attention. There are few captains of water-craft who would submit to such delay for such a purpose. If it could be supposed for a moment that he was going to Hayti with the intention of kidnapping her citizens, of which he was afterward charged and convicted in heir courts, then a short sojourn on the island of Cuba might not have been entirely destitute of commercial advantages.

“The bark William arrived at Port-au-Prince after the middle of January, 1861, and it was not long until Pellietier procured the arrest and imprisonment of five of his disorderly crew. About this time Binar, the negro passenger, who probably imagined that he was in possession of important secrets, called on Pellietier, and after an unsatisfactory interview, wrote to him to provide for his maintenance, and demanding $100 immediately, threatening if it was not sent to make it cost him a larger sum, and that he would not wait longer than 12 o’clock for an answer. Jn the conversation preceding this letter Pellietier had expostulated with Binar, telling him what he had done for him on account of his family—that he had paid a portion of his debts at Carthagena and brought him out of the country where he was in danger without charge j and besides that he had been ‘gossiping.’

“Whatever part Binar was expected to take in subsequent events, it was evident that Pellietier expected no gossiping. Exasperated at Pelletier’s failure to advance the required sum, Binar denounced him to the authorities as a slaver, and the Government attorney, with the military commander and a body of armed police, boarded the William, to satisfy themselves as to the truth or falsity of Binar’s accusation. They found handcuffs, ‘water-casks, arms, and munitions in such quantities as to convince them of the fact charged. Pellietier, who was on shore, instructed his mate that in case the police returned to spread the American flag over the side-ladder and forbid their coming on board. Notwithstanding, the commander led his posse up the ladder, tramping on and tearing the flag. Before the search Pellietier had been endeavoring to employ a few women and fifty men to go to another island to assist in loading his vessel with guano.

“The Haytians had a suspicion that the real object was to kidnap and transport them into slavery. They were the descendants of slaves and had probably not inherited the most favorable opinions of the peculiar institution. However that may be, your committee believe that the facts warranted the search, and that the flag was and should have been no protection under the circumstances.

“Pelletier was not arrested, as might have been anticipated, but after a stay of about six weeks was permitted to depart in company with the Haytian war-steamer Geffrard, which was ordered to convey him for a distance of 200 miles from their shores.

“The Haytian authorities may have believed that they were forever free from Pelletier and the bark William, but in this they were mistaken. In a few weeks afterward, and about the 1st day of April, he entered the harbor of Fort Liberté under an assumed name, announcing that he was in command of the French vessel, the Guillaume Tell, bound from Havana to Havre, with the French flag flying at his masthead. He put himself in communication with the commercial agent of France, representing that his vessel was in great distress. He was treated with unusual civilities by the commander of the post, and enjoyed perfect quiet until one of his sailors, Miranda by name, escaped from his vessel. Believing that Miranda would denounce him to the authorities as a pirate, he got under way in the night-time and attempted to leave the port, but his vessel got aground. On the next day the vice-consul of France arrived, and, discovering the fraud which had been practiced upon him, ordered the arrest of Pelletier.

“A few days afterward he was taken to Cape Haytien, and from that place he was transported to Port-au-Prince. Before instituting legal proceedings against Pelletier the secretary of state for foreign affairs addressed to the commercial agents of the leading powers of Europe residing in the city of Port-au-Prince inquiries as to jurisdiction and from the consulates of England, France, Denmark, Spain, Hanover, Italy, Prussia, and Sweden received unanimous opinions that the Haytian Government was fully authorized to use against Pelletier all judicial proceedings which comport with the crime of piracy. Pelleiier’s case underwent a protracted investigation before the highest courts of Hayti, and he was adjudged to be worthy of death, but that judgment was afterward modified to imprisonment for five years. He chose not to be represented by counsel and to answer no questions, and we make no criticism on his course, as it may have been the part of wisdom. The learned counsel who represented the memorialist strenuously contended that the courts of Hayti had no jurisdiction j but Pelletier speaks of the bay which he entered both as a ‘port’ and ‘harbor’ and if that Government has no jurisdiction of her own ports and harbors, her citizens may be said to hold their lives, their persons, and their property at the mercy of any corsair who may choose to deprive them of either.

“The paper which Pelletier has filed as proof of his citizenship neither looks nor reads like any naturalization paper we have ever seen before. The law contemplates two, but he seems to have completed the job at a single step. On the face of the paper, the word ‘duplicate’ is written, which is a commercial phrase, never used, as we believe, in this country in the attestation of judicial proceedings.

“A careful examination of the facts induces us to adopt the opinion of Hon. William H. Seward, as embodied in his dispatch No. 36, to Benjamin F. Whidden, esq.: ‘The conclusion reached is that the proof of the citizenship of that person is not sufficient to warrant an interposition in his behalf. But allowing the reverse to be the fact, his conduct in Hayti and on its coasts is conceived to have afforded the reasonable ground of suspicion against him on the part of the authorities of that Republic, which led to his arrest, trial, and conviction, in regular course of law, with which result it is not deemed expedient to interfere.’”

The conclusions which Judge Strong reached were:

(1) That Pelletier was entitled to no damages for the seizure and confiscation of his ship; but

(2) That he was entitled to damages for imprisonment and other injuries inflicted by Hayti as a punishment for piracy and attempted slave-trading. The damages under this latter cause of action he assessed at $57,250.

I have, in the first place, to express my concurrence with the conclusion reached by both Judge Strong and the Senate committee, that the claimant is not entitled to damages for the seizure and confiscation of his vessel.

As I am constrained, however, to come, on the question of Hayti’s jurisdiction to try Pelletier for the offenses in question, to a conclusion in direct conflict with that reached by the learned arbitrator, it is proper that I should give in full that part of his award which states the reasons for his decision. It is as follows:

“Nor was there anything done by him in the ports of Hayti that amounted to piracy recognized as such by the law of nations. As I have said, I do not care to inquire what the law of Hayti defining piracy may have been. It is another law which is to be the rule of decision in this case; so it is stipulated is the protocol. The false personation by Pellietier at Fort Liberté, the change of the name of the bark, the unwarranted use of the French, flag, the false assertions respecting the port of clearance and the port of destination, and the other deceptions practiced there, censurable and wicked as they were, were still not acts of piracy, nor was Pelletietfs inquiry of Maximilian at Port-au-Prince whether he could obtain men and women from Hayti to load his bark with guano at the Guano Islands an act of piracy, though reasonably awakening suspicions that his intent was slave kidnaping. Nor was his later project (if he entertained it) of giving a ball on his vessel at Port Liberty and carrying off those invited, unexecuted and unattempted as it was, an act of piracy, or even of slave-trading. At most these were evil intentions not carried out. There was in truth no overt act of piracy, amounting, to piracy as understood in the law of nations, or of slave-trading, and none was charged. There was, therefore, in my judgment, plainly no jurisdiction in the Haytian courts over the bark or over the master. It follows that, having suffered in consequence of the unauthorized and wrongful assumption of jurisdiction by those courts to try and punish him, the Republic of Hayti may justly be required to make reparation to Pellietier for the wrongs he has suffered.”

Now I do not maintain that there was an overt act of either piracy or slave trading consummated by Pellietier in the territorial waters of Hayti. I do, however, take the following positions, which, if accepted, sustain Haytian jurisdiction in their relation:

(1) Pellietier visited Hayti in 1861 for the purpose of abducting and enslaving Haytian citizens, and when in Haytian territorial waters made such preparations for carrying on this plan as would have ended, had it not been for his arrest, in such abduction and enslaving.

(2) Such action on his part in Haytian waters constituted, both by our common law and by the French law in force in Hayti, a criminal attempt, subject to public prosecution.

(3) The crime of attempt, thus stated, was within Haytian jurisdiction.

(4) The trial was, as far as we can learn, decorous and fair; and the punishment ultimately imposed was, in view of the, atrocity of the offense, singularly lenient.

(1) That Pellietier was a slave-trader, and that his visit to Hayti was for the purpose of abducting and enslaving Haytians, is the conclusion adopted not merely by the Haytian courts, but by the Senate Committee on Foreign Relations in 1874, and by Judge Strong in 1885. By no other tribunals were the facts in the case, on both sides, examined in detail; and in considering the proceedings before Judge Strong we have the advantage of a full report, covering nearly two thousand printed pages, of all the testimony taken. After a careful study of this testimony I feel it ray duty to state that the conclusion that Pelletier’s visit to Hayti was for the purpose of abducting and enslaving Haytians is established beyond reasonable doubt, and I have also to report, differing in this respect from Judge Strong, and concurring with the Senate committee and with the Haytian courts, that this plan was carried out in Haytian territorial waters to such an extent that it would have been consummated had it not been for Pelletier’s arrest by Haytian officers.

The grounds on which I rest this conclusion are as follows:

Mr. G. Eustis Hubbard, United States commercial agent at Cape Haytien, in an official dispatch to this Department, dated April 13, 1861, at a time when the circumstances into which it was his duty to inquire were fresh, made the following statements:

“From all the reports and evidences which I can collect, it would appear that the bark William, after a very roundabout and apparently illegitimate voyage on the Spanish Main and among the West India Islands, arrived on the 21st of January last in Port-au-Prince, where the master entered his vessel as coming from New Orleans, although he could show no regular clearance from, that city. This irregularity was passed over, and the vessel, duly entered in the custom-house at Port-au-Prince. There she was suspected of being a slaver, which suspicion was substantiated by the written evidence of several of her crew and passengers, and the proofs were so strong that the authorities of Port-au-Prince visited and searched the vessel, but, contrary to law, and usage, without having advised the United States commercial agent of the facts and their proceedings. There were found on board 20 pairs handcuffs, 12 six-barrel revolvers, 4 rifles, 1 pistol-revolver with poignard attached, and 2 kegs of powder, certainly a very large amount of arms and ammunition for a vessel in a legal trade; and in the hold a large number of beams, cross-bars and plank, water-casks (the report is for more than one hundred of the latter), and a large quantity of provisions. * * *

“On his arrival at Fort Liberté the master reported his vessel to be the Guillaume Tell, of and from Havre to Havana, and that his own name was Jules Letellier, and stated that he had got aground on the Silver Keys, and wished to engage a number of workmen to go over there with him and save a portion of his cargo, which he had thrown overboard there to lighten his vessel. The next day (April 1) he wrote a letter in the French language to the French vice-consul at this city, stating that his rudder was broken, and that he would arrange it as soon as possible, and proceed to this port with his vessel to put himself under his protection. A translated copy of this letter is herewith inclosed. It would appear that on his arrival in Fort Liberté the master of the vessel did his utmost to put himself on a good footing with the authorities and people there, and one day invited a number of persons on board to dinner, treating them with great politeness; and that the inhabitants of that town had not the slightest suspicion about the vessel until the 3d of April, when one of the sailors escaped on shore, and made his declaration that she was the American bark William, of New Orleans, Capt. A. Pelletier, and that the intention of the master was to kidnap a number of Haytians and sell them into slavery. * * *

“In my opinion the entire movements of the bark William about this island have been highly suspicious, and I have no doubt but that the intention of Captain Pelletier was to induce a number of Haytians to go on board of his vessel, under contract or otherwise, and then make his escape with them and sell them into slavery. The project is most hardy and daring, and it is difficult to understand its conception at the present advanced age. It is very possible, however, that he would have succeeded in his nefarious design had not the vessel already had suspicion fixed upon her in Port-au-Prince; indeed, my doubts about the legality of the vessel’s proceedings were so great that, had she escaped from Fort Liberté, I should at once have written to St. Thomas, Aspinwall, and Havana, requesting the American consuls of those places to lay the facts before the commander of any foreign man-of-war in port, so that the vessel might have been apprehended and her real intention discovered.

“It is possible that the vessel may be brought to this port, and the captain and crew escorted here for trial. I would therefore most respectfully ask information from the Government what course I am to take if the vessel is afterwards given up and part of the crew released after examination, the latter of which will probably be the case. It is an undoubted fact that these men are composed of the refuse of all nations, and that they are not on a legal voyage, although provided with American protection.” (Pelletier Record, pages 1099, 1101, 1103, 1104.)

On February 22, 1885, Mr. Hubbard, then commercial agent at Porto Rico, was examined under interrogatories in the issue then pending before Judge Strong. In the course of this examination Mr. Hubbard made the following statement:

“I had absolutely no hostile feeling towards Pelletier at the time when I wrote to the honorable Secretary of State the letter of which Exhibit A is a copy, unless a feeling of indignation and horror that any man could stain his soul by such a crime as that of which he was suspected could be construed as a hostile feeling. The intensely suspicious circumstances connected with the case, and particularly the fact that the man had acted as a French subject, commanding a French vessel, until he was compelled to declare himself a naturalized citizen of the United States, commanding an American vessel, led me to consider it my official duty not to interfere with the proceedings of the Haytian Government in anyway without express authority and instructions from the Department of State; but I remember very distinctly to have felt greatly relieved when the case was taken out of my jurisdiction, the master of the vessel taken to Port-au-Prince for trial, and the vessel conveyed there to be adjudged.

“Later on, either from private statements, reports, or conversations, or reports or statements by the public prints—I am absolutely unable to-day to say which, because I do not remember—and from logical reasoning deduced from the actions of the master in Port-au-Prince in January and February, 1861, and afterwards in Fort Liberté, the following inferences were plainly formed in my mind:

“That it was the intention of the master of the bark William to get possession of about fifty able-bodied negroes in the West Indies and to kidnap them into slavery. That having been unsuccessful in engaging them in Port-au-Prince to work on a supposed guano island, he made his mind up to proceed to some small port closed to foreign commerce, where he could conduct his plans with more facility.

“That he passed by the port of Cape Haytien without entering, because he supposed that his proceedings in Port-au-Prince would have been known there.

“That previous to and on arrival at Fort Liberté, being himself a Frenchman, he pretended to be a French captain, commanding a French vessel, believing that thereby he would gain more readily the sympathies of the people there.

“That he falsely represented his vessel to be disabled, to endeavor to get the people he required to go with him to the spot where he pretended to have met with the disaster.

“That failing in the attempt to engage the people as wreckers, he, as a last resort, intended to invite a large party on board to an entertainment, and while on board to ply them with liquor, probably drugged liquor, reducing them to insensibility, and then slip his vessel out of port to sea. He had already given one entertainment on board, in which he treated the guests with great courtesy; once the vessel at sea, he would have put the people into irons in their insensible state, and have kept them in irons until he arrived at the destination.

“That it was not his intention to sell those negroes, hut to land them at the mouth of the Mississippi River, on Ship Island, where this man and a relative, I believe to have heard, his brother or brother-in-law, had either there or near by a plantation, and to work them on that plantation as slaves.

“That this nefarious, horrible scheme, beyond almost human comprehension in the advanced age in which it was attempted, was planned at the time when the Southern States had begun to secede; when, in the winter of 1860–’61, every Southerner knew that war must inevitably ensue between the North and the South; and when in the judgment of its planners a number of negroes could be soon landed in the extreme South, certainly without interference from the Government of the United States, and probably with perfect impunity from the State or local authorities.

“And having formed those inferences, it has always been my belief, from that day to this, that the Haytian Government ought to have executed the man as a pirate, and confiscated his vessel and property beyond redemption.” (Pelletier Record, pp. 1118–19–20.)

As has been already stated, the judicial records of the proceedings in the Haytian trial of Pelletier have been destroyed by fire, and with them were destroyed the depositions taken during that trial. It so happens, however, that in the Haytian official newspaper, Le Moniteur Haitien, was published, on August 10, 1861, the official statement of the case of the prosecution against Pelletier and his associates. This statement, as it is an official recapitulation of the testimony collected according to French and Haytian practice, at the preliminary hearings of the case, gives us adequate proof of such testimony, and enables us, in connection with other proof, and with the subsequent judgment of the courts, to infer what was the evidence offered on trial. From the statement in question the following passages are extracted:

“Pursuant to a declaration of Mr. Baina to police headquarters, five sailors of the William, kept under arrest by Captain Pelletier, who was afraid they should make known his infamous plans of slave trade and piracy, were questioned by the local authorities, and testified concerning the intrigues of Captain Pelletier from Carthagena to Grand Cayman, from that port to Cienfuegos, and from Cienfuegos here. In consequence of the declaration of Baina and of the five sailors, Carlo Ciscornia, Juan Poux, Antonio Lovos, William Smith, and Pablo Rebantes, the commissioner of the Government, the governor, and other officers went on board the William and ascertained the presence of 20 pair of handcuffs, 4 Colt’s rifles, 12 revolvers, 2 kegs of gunpowder, a great quantity of empty barrels, a very large quantity of stores, a large number of woolen blankets, and a twin-deck in course of construction. This, together with the declaration of Vil Maximilien, a Haytian citizen, to whom Captain Pelletier had applied in order to obtain fifty men and six women he desired to engage, as he said to Maximilien, to get guano; also the intrigues of Captain Pelletier, and the means of intimidation he resorted to in order to escape our investigations, complaining to the American consul of the officers who had inspected his ship, and, as he falsely said to the consul, had trampled upon the American flag. All these facts concur to prove in an evident manner that the object of Captain Pelletier, after the partial failure of his vast scheme of slave trade and piracy, was to make up for his loss by means of a certain number of men he intended to take away from us. If Captain Pelletier has been allowed to leave Port-au-Prince after all these facts it is not because of a want of proof to establish his guilt, but because the Government, in its wisdom, rather than detain Pelletier and his ship, preferred to relinquish the culprit to the vigilance of philanthropic nations whose vessels scour the sea with the object of bringing to prompt punishment this class of ruffians, and to Divine justice, whose manifestation was not slow. The Government allowed Captain Pelletier to sail, and ordered our dispatch-boat, the Geffrard, to follow the track of the slave-trader ship. During the voyage the accused Pelletier conceived the idea of capturing the Geffrard. He had shots and fuses made by the accused, Henri Millet, formerly an engineer on board of our dispatch-boat, and who had charge of taking the powder-room of the Geffrard as the aim of his firing; five men were sent on board, with the object of exploring the man-of-war, under pretense of asking the commander of the Geffrard to fix the chronometers of the William that were out of order. The accused, although they deny, with the exception of Miranda, the only informer, that Captain Pelletier had the idea of capturing the Geffrard, have, nevertheless, been unanimous in declaring that shots had been manufactured by Henri Millet, and that a deputation had been sent on board the Haytian vessel by the accused Pelletier. The attitude assumed by Commander Chassaing and his crew, the energetic summons of instantly leaving the ship, and the difficulty, not to say impossibility, of carrying into effect his daring scheme, compelled Captain Pelletier to abandon it.

“He, however, took his revenge by continually changing his course, so as to oblige, as he said to his crew, the Geffrard to burn her coal. When the Geffrard left the slave-trader ship near the Mole, Captain Pelletier tacked about for several days in the channel, abandoning the New Orleans route, the port he had been cleared for when leaving Port-au-Prince, and commencing to execute his projects at piracy in our seas. He had told Miranda, the mate of the William, that in order to indemnify him-self of the 40,000 francs he had spent at Port-au-Prince he wanted to take from our shores and our settlements 150 men he intended to sell as slaves at Havana; and when Miranda observed that, the Haytians being free and civilized, it would be impossible for him to kidnap them, the accused answered, We shall hill some of them, and the others will allow themselves to be carried away.’ Miranda likewise declares that Captain Pellietier had also decided to make himself master of those of our coastwise ships he might find laden with coffee and merchandise. To this end he continued tacking about for so long in sight of Mole, that he went to the Grand Inagua, from there to Cayes des Caiques, and opposite the Cap, from whence he hastily retreated, under French colors, having recognized the port pilot.

“Captain Pellietier, having failed to accomplish his intended acts of piracy in the neighborhood of Mole, made for the northeastern coast of the island, always with the same object in view. He arrived at Fort Liberté and hoisted again the French colors. Coming into port, he commanded the crew to call him Jules Letellier; to name the ship Guillaume Tell, from Havre, coming from Havana; to say he had just suffered damages at sea, and had left part of his cargo at Bank d’Argent. Having said so, he ordered the carpenter to take away the board bearing the real name of the ship.

“However, the authorities at Fort Liberté went on board; the captain, to deceive them better, received the officers with great affability. He told them that his mast, his chronometers, his rudder, were out of order; that he was just coming from Bank d’Argent, where he had left part of his cargo, and that he wanted about fifty men to help him to take it away. He declared that the name of the ship was Guillaume, from Havre, coming from Havana, and that he had put into harbor in order to make repairs. An official report was drawn up; the accused Pellietier signed it with his own hand Jules Letellier.

“Pellietier did not content himself with asking for fifty men; he contemplated giving a ball on board with the intention of weighing anchor and leaving with the young men and women of Fort Liberté he should have invited. His projects were in the stage of requests for men and of invitation, when Miranda, the boatswain, made his escape at night and informed the authorities at Fort Liberté against the pirate captain. The general in command summoned the accused Pellietier to come ashore with his ship’s papers. He stubbornly refused, and wrote a rather bold letter to the general, in order to intimidate him and find the opportunity of making good his escape.

“However, the night when Miranda ran away and the following day were filled with anguish for Captain Pellietier. Himself, with the accused Urbain Casting and four men, armed with daggers and revolvers, went ashore, intending to seize Miranda, dead or alive, if possible, so true it is that he was in dread of his escape.” (Pellietier Record, pp. 979, 980, 981, 982.)

According to an official statement made in Le Moniteur Haitien Of April 20,1861 (Pellietier Record, page 973), and not controverted in the testimony, in the case, Pellietier and his associates in the William fired with revolvers on the boats sent out by the Haytian authorities for his arrest, but the arresting party, after sustaining the fire, compelled a surrender.

(2) It is now to be considered whether the acts in question, committed as they were in Haytian territorial waters, constituted an attempt at slave-trading. In answering this question it is important to remember that both by our own common law and by the French law a punishable attempt is an intended, unfinished crime. It requires four constituents: First, intent; secondly, incompleteness; thirdly, apparent adaptation of means to end; and fourthly, such progress as to justify the inference that it would be consummated unless interrupted by circumstances independent of the will of the attemptor. Nowhere are these distinctions laid down more authoritatively than “by Rossi, Ortolan, and Lelievre, when commenting on Article I of the French Penal Code, which declares that “toute tentative de crime * * * est considérée comme le, crime meme.”

I cite these high authorities in French jurisprudence because it is important to-show that the Haytian courts, when laying down the law in this respect, did so in accordance with the law accepted in Hayti as part of the jurisprudence of France. But I do not cite the numerous cases in which the same law had been laid down in England and the United States. It is enough now to say that it is an accepted principle in our jurisprudence that an attempt, as thus defined, is as indictable in our courts as is the consummated crime of which it was intended to be a part, and that under the indictment for the consummated crime, there may be now, both in England and in most of our States, a conviction of the attempt. While it is not indictable, for instance, to buy a box of matches, it is indictable to carry a match to a hay-rack for the purpose of igniting it, a purpose which is only prevented by a police officer stepping in. While it is not indictable, also, to have in possession materials for skeleton teys, it is indictable to carry skeleton keys manufactured from such material to a house which it is designed to enter, though the intent be frustrated by the owner’s watchfulness It is not indictable, also, to own poison, but it is indictable knowingly to place it where it is likely to destroy human life unless removed by some extraneous agency. In cases of this class there can be convictions of attempt in any jurisdiction in which the final application of the preparations to the object takes place.

After a careful examination of the evidence in this case, I have come to the conclusion that Pelletier’s action in the territorial waters of Hayti constitutes an attempt at slave-trading, viewing attempt in the sense given above. There is no question as to Pelletier’s attempt; there is no question that the crime was left unaccomplished; there is no question that this failure of completion was owing to the forcible interference of the Haytian authorities. There is only one other condition to be considered, that of the adaptation of means to end. And as to this point I have no doubt. I can conceive of no means more fully adapted to carry out his atrocious purpose than those brought by him into operation in the secluded harbor of Fort Liberté There, in waters not visited by other shipping by which he might be watched, or guarded by armed cruisers which could search his vessel on the first suspicious sign, and in close proximity to a rural population of negroes whose race simplicity and credulousness were likely to be increased by their isolation, he, as we may infer from the evidence, a veteran slave-kidnapper, took a vessel which in prior cruises had shown her adaptation to slave-trading, and at once put a false French name on her stern, and assumed a false French name for himself, so as to do away with any suspicion connecting him with the former outrage at Port-au-Prince. He had several devices ready by which he could inveigle on board due quota from that population. He had a guano island to talk about, for which he wanted laborers, male and female, though he had not a single implement on board to dig out and prepare the guano on that island, if ever it should be reached. He had some other work to do on some other island for which he required help. He was to give a ball, to which a number of Haytians, male and female, sufficient to make up his cargo, were to be invited; and in order to make the invitation appear more considerate, and the expected entertainment more festive, as well as to throw a cloak over his infamous antecedents, his own name and that of his ship, as has been said, were changed to names more distinctively French, and his men, mostly French, were ordered to talk French. “Choice liquors “in abundance also were at hand, so that the victims, after the dance, could be sufficiently stupefied so as to make their subjugation more easy. Then, whatever were the means by which the requisite number of Haytians were to be enticed on board, every precaution were taken for stifling their cries, for securing their persons, and, if their resistance could not be otherwise overcome, for taking their lives. Handcuff enough there were for the ring-leaders, and in numbers so great as to be incapable of explanation in any other way. There was the material for the re-erection of the old slave-deck, under which the captives were to be compressed. There were the “revolvers” and other fire-arms with which the crew, a body of infamous desperadoes, expecting to share in the spoil, were to be armed, and there was the capacity of that crew for the use of such weapons, as shown by the volleys they fired at the Haytian: barges which sought their arrest. Had a vessel with hot shot taken its place in those tranquil waters before the hamlets in which that ignorant and confiding people were gathered, had the guns been loaded for the purpose of destroying the homes and lives of that people, had gunners standing at their guns been arrested at the moment before the expected discharge, while the crime intended would have been less execrable than that designed by Pelletier, it could not have been more subject to Haytian jurisdiction. For by Pelletier there was then placed in those territorial waters of Hayti to operate on that Haytian shore a mechanism of atrocity adjusted with peculiar skill to the consummation of what I believe to be a crime among the worst known to our laws, because it combines abduction, torture, enslavement, assassination, coupled with the infliction of a curse heavier than all others, both on, the people from whom the victims are torn and the people by whom they are received. It is impossible for me to hold that such an attempt was not within the jurisdiction of Hayti, and it seems a mockery to assert that the guilty parties are to, elude Haytian jurisdiction on the pretense that anchoring a slave ship in Haytian waters, with every contrivance to entrap and enslave Haytian citizens, is not disturbing the tranquillity of those waters, even though, on the discovery of the conspiracy, on the eve of its consummation, the slaver, in seeking to escape, fired on its pursuers. Such firing was part of one and the same, outrage. I can conceive of no more flagrant disturbance of the tranquillity of territorial waters than these facts disclose.

The view here maintained of the jurisdiction of the sovereign of territorial waters of offenses committed in such waters, when of a character calculated to disturb the peace of the port, is sustained in the case of Mali v. Keeper of Jail, decided this week by the Supreme Court of the United States. From the opinion in this case of Chief-Jnstice Waite, which I am permitted to cite in advance of publication, occurs the following:

“It is part of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purpose of trade, it subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two countries have come to some different understanding or agreement; for, as was said by Chief-Justice Marshall in The Exchange, 7 Cranch, 144, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the Government to degradation, if such * * * merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. United States v. Diekeman, 92 U. S., 520; 1 Phillirnore’s Int. Law, 3d ed., 483, sec. cccli; Twiss’s Law of Nations in Time of Peace, 229, § 159; Creasy’s Int. Law, 167, § 176; Halleck’s Int. Law, 1st ed., 171. And the English judges have uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship. Regina v. Cunningham, Bell C. C., 72; S. C., 8 Cox C. C., 104; Regina v. Keyn, 11 Cox C.C., 198, 204, S. C., L. R., 1 C. C., 161,165; Regina v. Keyn, 13 Cox C. C., 403, 486, 525; S. C., 2 Ex. Div., 63, 161, 213. As the owner has voluntarily taken his vessel for his own private purposes to a place within the dominion of a Government other than his own, and from which he seeks protection during his stay, he owes that Government such allegiance for the time being as is due for the protection to which he becomes entitled.

“From experience, however, it was found long ago that it would be beneficial to commerce if the local Government would abstain from interfering with the internal discipline of the ship and the general regulation of the rights and duties of the officers and crew towards the vessel or among themselves. And so by comity it came to be generally understood among civilized nations that all matters of discipline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local Government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation or the interests of its commerce should require. But if crimes are committed on board of a character to disturb the peace and tranquillity of the country to which the vessel has been brought, the offenders have never by comity or usage been entitled to any exemption from the operation of the local laws for their punishment if the local tribunals see fit to assert their authority.”

But it may be said that the punishment inflicted by Hayti on Pellietier was cruel, transcending to this extent her jurisdiction; and that for this reason and to this extent his claim should be sustained. On this point it is important to keep in mind the following summary given by the learned arbitrator:

“The court building and the records of judicial proceedings at Port-au-Prince have been destroyed by fire, since 1861, but official reports of the trial of Pellietier and the others indicted, attested and signed by the judges, and published at the time in the Government official journal, are before me. I think them entitled to credit. They reveal a very different conduct of the judicial proceedings anterior to and during the trial from that testified to by him. Waiving for the present consideration of the question whether the Haytian courts had jurisdiction, to which I shall return hereafter, I can discover in those proceedings, including the trial, no satisfactory evidence that they were oppressive or unfair, or that they were not conducted temperately, and according to the ordinary course of criminal trials. There are statements of Pellietier to the contrary, but I think them unsustained.” (Award, pp. 19, 20.)

In this opinion I concur, and I have further to state that, in view of the atrocity of Pelletier’s crime, I regard the punishment inflicted on him as singularly lenient. And in any view this question is one, not of jurisdiction, but of due administration of justice, as to which, for the reasons above given, Pellietier has no ground for complaint.

I have entered on the question of jurisdiction at large, because it is important for the peace and security of nations that this question should now be determined by the Government of the United States.

By the law of nations, it must be remembered, all sovereign states are to be treated as equals. There is no distinction between strong states and weak; the weak are to have assigned to them the same territorial sanctities as the strong enjoy. There is a good reason for this. Were it not so, weak states would be the objects of rapine, which would not only disgrace civilization, but would destroy the security of the seas, by breeding hordes of marauders and -buccaneers, who would find their spoil in communities which have no adequate power of self-defense. And there are peculiarly weighty reasons why the Government of the United States should lift a resolute hand to prevent such rapine and spoliation when attempted by persons carrying her flag, outcasts as they may be, and flung aside as that flag may be by them whenever, as in the present case, this may subserve their nefarious purposes. The United States has proclaimed herself the protector of this Western World, in which she is by far the strongest power, from the intrusion of European sovereignties. She can point with proud satisfaction to the fact that over and over again has she declared, and declared effectively, that serious indeed would be the consequences if European hostile foot should, without just cause, tread those states in the New World which, have emancipated themselves from European control. She has announced that she would cherish, as it becomes her, the territorial rights of the feeblest of these states, regarding them not merely as in the eye of the law equal to even the greatest of nationalities, but, in view of her distinctive policy, as entitled to be regarded by her as the objects of a peculiarly gracious care. I feel bound to say that if we should sanction by reprisals in Hayti the ruthless invasion of her territory and insult to her sovereignty which the facts now before us disclose, if we approve by solemn executive action and Congressional assent that invasion, it will be difficult for us hereafter to assert that in the New World, of whose rights we are the peculiar guardians, these rights have never been invaded by ourselves.

But, waiving this momentous issue, this claim, I do now assert, is one which, from its character, no civilized Government can press. I am glad to find that this question is virtually reserved by the learned and distinguished arbitrator, and that his award is to be regarded as made subject to the ruling of the Department thereon.

“The question”—

So he is reported to have said—

“whether the United States Government ought to have made a reclamation in his [Pelletier’s] behalf, is another question outside of this case. If reclamation has been made, then it becomes a question of legal right.” (Record, p. 1781.)

I am now constrained to inquire whether the learned arbitrator may not have erred in deeming himself so restricted by the provisions of the protocol under which he sat. By its terms he was required to decide the questions submitted to him “according to the rules of international law existing at the time of the transactions complained of.” This, in my judgment, was not intended in any way to limit the scope of his inquiries into the merits of the cases before him, but merely to insure the investigation of those merits upon principles of international law contemporaneous with the alleged wrongs, undoubtedly the true test of Hayti’s liability. If this be the true construction of the protocol, then I am unable to see why the fact that the, Government of the United States had made a reclamation in Pelletier”s behalf excluded consideration of the question whether that Government “ought to have made a reclamation in his behalf.” It would seem that the question of “legal right” was vitally connected with the question whether a reclamation ought to have been made; for both these questions depended for their solution on the application of the rules of international law to the facts of the case. Those facts were to be ascertained by the arbitrator. The Department of State, in submitting the claim to arbitration, had acted on a prima facie case; and one of the expressed objects of the submission was that there might be a full investigation of the facts. In agreeing to such an investigation, it would seem to be implied that the Department of State did not desire that its previous action on ex parte information should be regarded as a prejudgment in any respect of the case submitted.

Was not the reply very properly made by one of the counsel for Hayti, to whom the learned arbiter’s remark was addressed?

“These questions were left by the two Governments to your honor to pass upon after the evidence on both sides was submitted to you; therefore Pelletier did not acquire any legal right prior to this hearing.” (Record, p. 1781.)

That the learned arbitrator deemed himself restricted by the terms of the protocol may also be inferred from the following passage in his opinion:

“Nor was there anything done by him [Pelletier] in the ports of Hayti that amounted to piracy, recognized as such by the law of nations. As I have said, I do not care to inquire what the law of Hayti defining piracy may have been. It is another law which is to be the rule of decision in this case, so it is stipulated in the protocol.”

In line with the above citation, we may notice a passage on page 1779 of the Record. Counsel for Hayti submitted the following proposition:

“And I submit, further, that if the court had no jurisdiction over the facts that transpired at Grand Cayman, according to the principles of international law, it did have jurisdiction over the acts of Pelletier along-side the coast of Hayti.”

To this the learned arbitrator Replied:

“If the acts of Pelletier constituted piracy under international law the courts of Hayti had a right to try and condemn him, and if they made a mistake in the evidence that is an immaterial matter. If it was not piracy under international law then another question arises. The question whether it was piracy under the Haytian statute is not questioned in this case.”

If the question whether Pelletier’s conduct was piracy under the Haytian statute was not doubted it is conceived that there was nothing in the protocol which excluded the consideration of that question.

The learned arbitrator declared:

“In my opinion it is beyond doubt that had the bark been captured and brought into an American port, when she was seized at Fort Liberté, she would have been condemned by the United States courts as an intended slaver.”

Now, if the bark, when she entered the harbor of Fort Liberté, within the unquestioned territorial jurisdiction of Hayti, loaded with the implements of her nefarious errand, and as the evidence led the arbitrator to conclude, intending there to consummate her unlawful enterprise, could have been condemned by the courts of the United States as an intended slaver, why could not the Haytian courts condemn her and try and imprison her commander on the same ground, if, as is not questioned, Haytian law made provision therefor. It matters not what the Haytian law may have called the offense, whether it described it as piracy, or as attempted piracy, or as attempted slave-trading, or whether as is the case, it punished attempted slave-trading within Haytian jurisdiction as piracy. The protocol, it would seem, did not restrict the learned arbitrator to the consideration of the question whether Pellietier was guilty of piracy as defined by the law of nations. It merely provided that his claim should be decided “according to the rules of international law existing at the time of the transactions complained of.” This, it is conceived, did not mean that the arbitrator was to be restricted to the decision of the question whether Pellietier was guilty of the offenses of which he was convicted, as defined by international law, but only that in deciding the question of his trial and imprisonment, and of the condemnation of his vessel, the arbitrator was to accord to Pellietier the rights to which in 1861 he was by international law entitled, and to determine whether any of those rights were violated by Hayti.

If, as I believe this construction of the protocol is correct, it is not seen that the learned arbitrator was precluded from inquiring whether Pellietier was guilty of piracy by Haytian law and properly convicted of that offense by the Haytian court. It was a rule of international law in 1861, and is a rule of that law now, that offenses committed in the territorial jurisdiction of a nation may be tried and punished there, according to the definitions and penalties of its municipal law, which becomes for the particular purpose the international law of the case. It matters not what the offense may be termed, if it appear that a violation of the municipal law was committed and punished.

The municipal law of Hayti is not alone in defining the slave trade as piracy. It is so denominated by the laws of the United States (Revised Statutes, sec. 5376), and is punishable with death; and if the Government of the United States, like that of Hayti, were to make attempts at slave-trading equivalent to the consummated act and equally punishable therewith, it is not supposed that the rules of international law would thereby be violated.

I can not presume that the Government of the United States, by stipulating for the decision of the Pellietier claim according to the rules of international law existing in 1861, intended to deny to Hayti the right at that time to execute within her territorial jurisdiction her laws against slave-trading or piracy therein attempted, and I am compelled to declare that had such been this Government’s expressed intention I could not recommend that it should now be execute in the light of the facts developed in the arbitration, especially as the arbitrator expressly reserved the question of the rightfulness of the reclamation for the consideration and decision of the Executive.

The duty of the Executive to refuse to enforce an award which, notwithstanding the unimpeachable character, as in the present case, of the arbitrator, turns out to have been inequitable or unconscionable, has been maintained in repeated rulings of this Department, and is sanctioned by the Supreme Court of the United States. In Frelinghuysen v. Key, 110 U. S., 63, the question arose on an award, not, as in the present case, under an informal agreement, but under a treaty. Yet even of a treaty award Chief Justice Waite said:

“International arbitration must always proceed on the principles of national honor and integrity. Claims presented and evidence submitted to such a tribunal must necessarily bear the impress of the entire good faith of the Government from which they come, and it is not to be presumed that any Government will for a moment allow itself knowingly to be made the instrument of wrong in any such proceeding. No technical rules of pleading as applied in municipal courts ought ever to be allowed to stand in the way of the national power to do what is right under all the circumstances. Every citizen who asks the intervention of his own Government against another for the redress of his personal grievance must necessarily subject himself and his claim to these requirements of international comity.”

The views thus expressed are in entire accordance with the position taken by my predecessors whenever the functions of the Executive in questions of this class have been discussed. This position is thus summed up by Mr. Frelinghuysen in a letter to Mr. Suydam, dated September 25, 1882:

“It may be here observed that this Government exercises a broad discretion in determining what claims it will diplomatically present against other nations. It has not lent, and will not lend, its influence in favor of fraudulent claims. And when in behalf of an individual this Government demands of another power payment of money, it should not close its doors against an investigation into the question whether the apparent title of the claimant to the money is valid, or, because of his own fraud, is void. Were the case reversed this Government would contend for that right. Any other doctrine must impair the dignity and imperil the rights of those who have honestly obtained American citizenship.”

In a subsequent letter of Mr. Frelinghuysen the distinctions are expressed as follows:

“The claims presented to the French commission are not private claims but governmental claims, growing out of injuries to private citizens or their property, inflicted by the Government against which they are presented. As between the United States and the citizens, the claim may be in some sense regarded as private; but when the claim is taken up and passed diplomatically, it is as against the foreign Government a national claim.

“Over such claims the prosecuting Government has full control; it may, as a matter of pure right, refuse to present them at all; it may surrender them or compromise them without consulting the claimants. Several instances where this has been done will occur to you, notably the case of the so-called French spoliation claims. The rights of the citizen for diplomatic redress are as against his own, not the foreign Government.” (Mr. Frelinghuysen, Secretary of State, to Messrs. Mullan and King, February 11, 1884, MSS. Domestic Letters.)

The following are additional illustrations of the exercise of the power here asserted:

The awards under the treaty with Mexico of 1848 were set aside by act of Congress in the Atocha case, and by the courts in the Gardiner case (13 Stat., 595; 16 Stat., 633). Two of the awards under the Chinese claims treaty of 1858 were reopened in behalf of rejected claimants (15 Stat., 440; 20 Stat., 171). The Secretary of State, in the case of the Caroline, returned to Brazil, against the claimant’s protest, money to be paid him under a diplomatic settlement. (See Senate Rep. No. 1376, Fortieth Congress, first session.)

The precedents in this Department therefore fully sustain the principle stated by Chief-Justice Waite, that—

“As between the United States and the claimants, the honesty of the claim is always open to inquiry for the purpose of fair dealing with the Government against which, through the United States, a claim has been made.” (Frelinghuysen v. Key, 110 U.S., 63.)

Assuming Pelletier’s naturalization as a citizen of the United States, the question reserved by the arbitrator of his right, being a tortfeasor, to claim compensation for the consequences of his tort, must be denied. Still more strongly must this view be held when, in order to consummate the tort, he threw off the name in which he claims to have been naturalized, and assumed one more distinctively French, erasing’ from the stern of his ship the name William, under which she was registered, and putting in its place that of the Guillaume Tell.

On the general question of turpitude of cause of action as barring the present claim, I am now prepared to give an emphatic, and, I trust, final decision. Even were we to concede that these outrages in Haytian waters were not within Haytian jurisdiction, I do now affirm that the claim of Pelletier against Hayti, on the facts exhibited, must be dropped, and dropped peremptorily and immediately by the Government of the. United States. “The principle of public policy,” said Lord Mansfield, in Holman v. Johnston, Cowper’s Rep., 343 “is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.” Ex turpi causa non oritur actio; by innumerable rulings under the Roman common law, as held by nations holding Latin traditions, and under the common law as held in England and the United States, has this principle been applied. The lex fori determines the question of turpitude; and nowhere, and with better reason, has the slave-trade been stamped with such an infamy and turpitude as in England and the United States.

It may be said that the question is in this Department res adjudicata. If it were, I would not have the slightest hesitation in making the report I now make, that the claim is one which can not now be pressed by the United States, either as a matter of honor or as a matter of law. But the case is not res adjudicata. By Mr. Seward the claim, as we have seen, was peremptorily rejected, and his action in this case was affirmed during the Secretaryship of Mr. Fish.

From Mr. Evarts, it is true, instructions emanated directing its presentation to Hayti, with the suggestion of arbitration, and by Mr. Langston, then minister at Hayti, this demand was urged, as has been seen, in terms that almost compelled submission. Mr. Evarts’s instructions, however, were based on reports from the examiner of claims, now on file in this Department; and these reports rest exclusively on the prima facie case presented by the claimant, the case of Hayti, in reply not, from the nature of things, being then before the Department. Mr. Blaine and Mr. Frelinghuysen took matters as they found them, the case of Hayti not then having been heard.

Action of this class can no more be regarded as res adjudicata than can the preliminary binding over of a defendant, on the bare case of the prosecution, be regarded as res adjudicata when the case, both sides being in court, comes on for trial. Now for the first time has Pelletier’s claim, together with Hayti’s reply, appeared for adjudication in this Department; and with this full case before me, and with this very question reserved by the learned arbitrator who has made the award, I report that, in my judgment, after carefully reviewing the proofs, the claim, for the reasons I have stated above, can not be entertained by the United States. And I may add that in this particular case my opinion is sustained by the report of the Senate committee, by whom both sides were heard, and, on the question of disturbance of port tranquility, by numerous adjudications of this Department.

It may be finally urged that the award in the present case is conclusive and can not be disturbed. But tki3 proposition can not be maintained. No matter how solemn and how authoritative may be a judgment, it is subject to be set aside by the consent of the parties. To the awards of international commissions, were the award in this case to be considered as such, this position applies with peculiar force, since, as is elsewhere noticed in this report, it is a settled principle of international law that no sovereignty can in honor press an unjust or mistaken award even though made by a judicial international tribunal invested with the power of swearing witnesses and receiving or rejecting testimony. But the award before me is not that of a judicial international commission, invested with such powers.

To constitute such a tribunal, either a treaty, duly approved by the Senate so as to be the law of the land, or an enabling statute, is necessary. The judicial and the executive departments are distinct, and unless by a treaty or an act of the legislature, in subordination to the Constitution, the functions of the former, so far as concerns the determination of litigated issues of fact, can not be vested in the latter. The Department of State, therefore, can not, either through its own officers or a commission appointed by it, take and hold sworn testimony in order to determine litigated issues of fact. Hence the conclusions of an international commission, sanctioned solely by the executive department of the Government, are to be regarded, to adopt the language of the Supreme Court, as an award “which would have bound nobody and would have been at most a friendly recommendation.” (Miller, J., Great West. Ins. Co. v. W. S., 112 U.S., 197.)

It does not cure the proceedings in the present case that the distinguished gentleman who acted as arbitrator, administered oaths to witnesses, issued commissions, and determined as to what questions were to be put to witnesses, in this way shaping the testimony produced. In the opinion of this Department these proceedings, so far as they were matters of distinctively judicial prerogative, were ultra vires, and so was the judgment entered, so far as it partook of a distinctively judicial type.

In taking this position. I am in no way impeaching the rights of the Executive, either through the Secretary of State or through agents appointed by him, to negotiate the settlements of private claims with foreign powers. Such negotiations may be likened to the conferences, in matters of private litigation, of parties through their counsel or through referees, to settle, on the basis of afiadavits or voluntary statements of the parties, the matter in dispute.

Informal conferences of this class have been found, and will be found hereafter, of great use. But not being in the shape of a treaty they do not, in the United States, have the effect of a law investing the officers in question with the judicial power of taking and limiting testimony and deciding judicially on the questions submitted to them. Hence the awards of such tribunals, being inchoate and merely recommendatory, are to be regarded as less obligatory than are awards made under treaties. And as awards under treaties when the arbitrator had judicial powers, and when the witnesses testifying could be held criminally responsible for false testimony, will not be enforced if shown to be unconscionable and unjust, a fortiori is this the rule with awards in cases in which the arbitrator had no judicial powers, and when the oaths administered were nullities.

In view of the position taken by Hayti, as exhibited in the records of this case, it becomes now incumbent on the Government of the United States to determine whether it will enfore the payment by Hayti of this award.

Aside from the exhausted condition of her treasury, which would preclude voluntary payment at present, it is not to be expected that any nation, viewing this case as Hayti does, could make such payment except when forced to do so by the application of a superior force. Hayti is a Republic in which not merely the Government but the great body of the population are of negro descent. Pellietier was a notorious slave-trader, and the money awarded to him in this case was for an imprisonment imposed on him in Hayti for an attempt to abduct Haytian citizens, and sell them as staves. To pay this award to Pellietier would be not merely to recognize the position that Hayti had no jurisdiction of an attempt in her own territorial waters to abduct and enslave her own citizens, but that the person making such an attempt is to receive a large indemnity for the punishment, in itself by no means excessive, inflicted on him for the crime.

Were the positions reversed; were it to appear that a foreign slave-trader had appeared in one of our ports and had sought to obtain fraudulent possession of colored citizens of the United States for the purpose of reducing them into slavery were, in case of the conviction of such a miscreant in our courts, his Government to call upon us to pay a large indemnity for the punishment to which he had been subjected, the answer of the people of the United States, of whatsoever race, would be one of prompt and resolute refusal, no matter how serious might be the consequences. What the United States would do under such circumstances is the peculiar right of Hayti. To Hayti it is not merely a question of the sovereignty over her own territory, but that of her power to protect from enslavement the race by which that territory is almost entirely peopled. Voluntary payment of this award by Hayti we therefore can not look for. Whether there is to be compulsion applied in the shape of reprisals to enforce payment it is the constitutional prerogative of Congress to determine. But I do not hesitate to say that, in my judgment, the claim of Pelletier is one which this Government should not press on Hayti, either by persuasion or by force, and I come to this conclusion, first, because Hayti had jurisdiction to inflict on him the very punishment of which he complains, such punishment being in no way excessive in view of the heinousness of the offense, and, secondly, because his cause is of itself so saturated with turpitude and infamy that on it no action, judicial or diplomatic, can be based.

II.—Lazare Case.

The facts of this ease may be stated as follows:

Pursuant to instructions of inquiry issued by this Department on September 18, 1876, the following dispatch was sent to this Department by Mr. Bassett, then our minister to Hayti:

Mr. Bassett to Mr. Evarts.

Legation of the United States,
Port-au-Prince, Hayti , April 24, 1877.

No. 495.]

Sir: In compliance with the Department’s instructions No. 283 of the 18th of September, 1876, which only reached me here toward the end of January last, I have the honor to send herewith several inclosures, and to submit some observations bearing upon the claim preferred upon this Government by Mr. A. H. Lazare, in consequence of an alleged breach of a contract which he made for the establishment of a national bank in this country.

Inclosure A is an authentic translation of the contract, which was signed September 1, 1874, and its modifications, which were signed May 11, 1875. (For this inclosure see Record Lazare Case, pages 1*, 15*.)

There can be no reasonable doubt of the correctness of the pieces covered by inclosure A.

Inclosure B is a translation accepted by Mr. Lazare as true and correct, of his correspondence with the authorities of this Government during the months of August, September, and October, 1875, as it appeared in different numbers of the official journal, Le Moniteur Haitien, covering that period. (This correspondence is printed in full in the record of the Lazare case.) I think that all the letters and documents covered by inclosure B are correct, except that I have some doubt whether Mr. Lazare actually wrote and caused to be delivered to the then minister of finance, commerce, and foreign affairs, the closing letter which therein appears, dated October 18,. 1876. I have not been able to find any traces of such letter either in the columns of Le Moniteur or in any department of the Government. There was evidently other correspondence on the same subject between the officials of this Government and Mr. Lazare, which he has not judged it best to reproduce; but perhaps he did not think it possessed a sufficient bearing upon the claim to be reproduced in connection therewith.

Upon the receipt of the Department’s No. 283, I requested Mr. Lazare to favor me with any written statement which he might be pleased to submit in relation to his claim. And near the end of February last he made out and delivered to me a statement in that regard, which, as it may be presumed to embody what Mr. Lazare has to, offer in support of his claim, I send herewith inclosed and marked C. It is in Mr. Lazare’s own style and language. I shall, with your permission, presently take the liberty to refer to it somewhat more in detail.

These three accompanying inclosures together furnish the facts, allegations, and arguments upon which Mr. Lazare bases his claim. I respectfully refer you to them for full information on that phase of the subject, and would request that all due weight and force be given to them as they stand.

Mr. Lazare, who habitually appeared frank and open with us, spent the several weeks of July, August, and September, 1874, and of April and May, 1876, during which he was in the country, as an agreeable guest at my house, and I had, therefore, an opportunity of knowing the steps taken by him at those times in reference to the bank. I had also other opportunities of knowing all the important facts in the case as they occurred. In view of the information contained in the inclosures, and otherwise within my knowledge, I propose, in obedience to Department’s instruction No. 283, to offer some observations relative to the claim preferred by Mr. Lazare.

Let me say, then, at the outset, that according to the best of my knowledge and belief, Mr. Lazare acted in perfect good faith and with commendable energy in his persevering endeavors to carry out his part of the contract.

Shortly after the signing of the contract, he put the Government in communication with responsible parties for the erection of the buildings, which were by them completed in due time. Thereafter he went via New York to Europe, where he is presumed to have succeeded in securing conditionally a guarantee for a good portion of the bank’s capital which he was to furnish. But finding some modifications of the original contract desirable in order to obtain for it the favor which he wished to secure for it in Europe, he returned here in April, 1875, had the modifications agreed upon and accepted, and hastened back to Europe in May, 1875. Arriving there he found that the firm (that of Robert Benson & Co., London) with whom he had made his first negotiations had become insolvent. Thereupon he diligently and energetically sought to and did open negotiations with other firms but none that all his energy could discover was, it seems, willing to go farther than simply to give letters of credit to him as president of the national bank of Hayti, which was not yet in function. Such letters of credit he succeeded in obtaining from different fkm3 in Europe to the amount of nearly a million of dollars. But they were neither the money which he had engaged to deposit in the vaults of the bank, nor even immediately or at Mr. Lazare’s will convertible into that money.

But they were the best that he could or did obtain, and he returned here with his family in August, 1875, in the full hope no doubt, that he would be able to persuade the Government here to allow him to go outside the provisions of the contract to open the bank, with these letters which he might then make available. Well acquainted as I am with the bad faith which characterized the Domingue Government, and willing as I might therefore be to accept any allegations of Mr. Lazare in that regard, I must nevertheless do Domingue and Rameau the justice to say that I believe, without giving them any particular good motives in the matter even, that they ardently desired to have the bank established, and that up to the time that they learned of Mr. Lazare’s failure to obtain the money in Europe they went as far in favoring Mr. Lazare to the end of opening the bank as they considered the popular sentiment would sustain them. I know that they at first counted very much upon Mr. Lazare’s success. They appeared to think that with the indorsement of their Government he could command almost unlimited credit abroad, and might thus be of service to them.

But there was no mistaking the fact that the contract demanded from Mr. Lazare the depositing in the vaults of the bank of $1,000,000 in specie on or before the 1st day of September, 1875. (See Articles 24 and 31 of the contract, and see also the modifications.) In case this difficult and, as it was regarded, all-important condition was not complied with, the bank could not, according to the contract, be opened, and in case the bank and the warehouse were not both “in full operation” at the date named, the contract was to become null and void, and the Government was to be free to act as it pleased. (Article 24.)

The Government becoming fully acquainted with the fact of Mr. Lazare’s inability to obtain in Europe for the bank anything more than the letters of credit, wrote him on the 27th of August (inclosure B), evidently in response to a request which he had made, according to him the time to the 15th of the following October for the opening of the bank, and warning him that if he were not ready at that date to carry out his part of the contract it would be declared null and void.

It does not appear by what right conferred in the contract either the Government or Mr. Lazare, or both together, could change the date positively fixed in the contract and reaffirmed in the modifications. But under the then existing circumstances, the adjournment might appear like a favor to Mr. Lazare, although I think that no steps which could then have been taken under the contract would have enabled him to obtain $1,000,000 in specie to be deposited in this country.

But, briefly, the 15th of October came, and Mr. Lazare’s inability to pay into the vaults of the bank the $1,000,000 in coin was known to be in no way changed; while the Government, aided by foreign merchants, declared that it had deposited its $500,000 metallic money, according to the contract, which it thereupon declared to be null and, void. (Inclosure B.)

Mr. Lazare was now urged to write a letter in the nature of a protest to the Government. Whether or not he actually did write and cause to be delivered such, a letter (see the last letter in inclosure B), the Government, two days before the date given to the one which Mr. Lazare claims to have written to “reserve his rights” in the matter of the contract, did publish in the official journal of October 16, 1875 (inclosure D), a similar reservation of its rights as against Mr. Lazare, and I know that Mr. Lazare did refuse the importunities of his friends in that regard, still hoping that by preserving his supposed excellent relations with Domingue and Rameau, he might secure from them a sum of money for his labors and outlays in behalf of the bank. In and according to this hope he shaped his bearing and conduct, and in this hope he remained here nearly six months, making frequent and almost daily calls upon Rameau and other Government officials. There were friends here who thought that he should have pursued a different course, one which they seem to consider would have been more manly on his part. At all events it is within my knowledge that Mr. Lazare, in response to urgent requests, did, in the sense already referred to, receive Government bonds to the amount of about $10,000, the appointment to be Haytien consul-general at New York, and promises of other contracts with this Government.

All these he readily accepted, and it was only after Doiningue’s overthrow and after he was notified by the Haytian minister at Washington that the provisional Government which succeeded Domingue’s would not recognize the validity of any agreements made between the Domingue Government and himself, that Mr. Lazare brought forward his reclamations of the alleged breach of the bank contract; for his allegations in inclosure C to the effect that he made out and submitted to me that reclamation before he presented it at Washington, toward the end of August last, is certainly not correct.

In stating the basis of his reclamation (inclosure C) Mr. Lazare claims, in substance, to have received injuries from this Government.

(1) In that he was prevented from availing himself of the columns of the official journal to make public in that way certain information in reference to the bank, and was prevented by Government authority from printing the bank statutes.

(2) In that the Government in contracting the loan in Paris during the year 1875 contravened Article 14 of his contract, relative to the bank.

(3) In that the Government did not pay a greater portion of the cost of the bank and warehouse buildings.

(4) In that the Government, in spite of being obliged by the spirit and letter of the contract to begin paying its part of the capital before he commenced paying in his part of the capital, insisted on his part being paid in simultaneously with its performance of the same act.

(5) In that, having at an expense of time, money, personal exertion, and credit fulfilled his part of the contract up to the time when the Government, without good reason, declared that instrument null and void, the Government having during that time made breaches to the contract, is not released from its obligations to him up to that point.

He therefore, in virtue of Articles 18 and 19 of the contract, demands (1) that there be claimed from the Government of Hayti for him an indemnity of $500,000, and (2) that the Government (I presume he means the Government of Hayti) “name an arbitrator to decide on the damages and interest to the same which are due to him.”

Such I understand to be in brief the basis of Mr. Lazare’s claim. If I have in any way misstated it, I can be easily corrected by reference to the accompanying inclosure.

His first point I pass by as forming by itself no adequate basis for a reclamation. If that point be correctly stated, as I presume it to some extent may be, it is only another illustration of the bad faith which characterized the Domingue Government, and of which Mr. Lazare was fully amply forewarned by myself and others.

He invokes the provisions of Article 14 of the contract to show that the Government, by contracting the loan in Paris in 1875, broke its engagements with him, whereas it was certainly Mr. Lazare’s privilege and his duty to know, when he assented to the Article 14, the public fact that a part of the revenue was, and for many years had already been engaged to cover and secure the French debt. I make no doubt but that the course which the loan took in Europe, the discussions and exposures of the bad faith of this Government which it called forth, did work unfavorably to Mr. Lazare in his efforts to obtain there the capital which he had engaged to furnish for the bank. But does that constitute a case of force majeure?

In the matter for the cost attending the erection of the buildings for the bank and the warehouse, I understand that it was Heuvelman, Haven & Co. who contracted with the Government, not without Mr. Lazare’s knowledge and consent. Certainly an item to that effect figures in Heuvelman, Haven & Co.’s claims upon this Government.

I find nothing in the contract or its modifications which supports Mr. Lazare’s statement that the Government was bound to begin paying in its share of the capital before he began the same proceedings, notwithstanding Article 30, which Mr. Lazare evidently invokes.

There is no doubt but that Mr. Lazare faithfully endeavored to carry out his part of the contract, or that in those endeavors he expended considerable sums of money, it is equally certain that he did not finally succeed in obtaining the $1,000,000 in the money which he had engaged to deposit in the bank according to Article 31 of the contract. The plain fact is that Mr. Lazare bound himself, as other men everywhere bind themselves to obligations for them not feasible, to fulfill certain conditions which, notwithstanding his intimations in inclosure C to the contrary, he was positively unable at last to carry out. He does not pretend to have possessed capital himself in his own name.

In his statement he also maintains that the Government was not able to, and did not, carry out its engagement to deposit $500,000 specie into the vaults of the bank. But the procès verbal (see inclosure B) signed by several foreign merchants resident here, among them the head of a large American firm, distinctly states that that sum was duly deposited in the bank “in execution of the contract.” And inclosure E, which is an extract from the official journal of October 16, 1875, confirms the statement made in the procès verbal.

It is necessary to add, however, that the common speech and notoriety at the time were to the effect that only less than half of the $500,000 was in fact deposited in specie, the greater portion of that sum being in drafts of foreign merchants doing business here. At the time I believed this rumor to be correct. But, contrary to the presumption which Mr. Lazare makes on this point, I think that the Government could at that time have commanded the required sum in specie, and I base this opinion upon the statements to this effect volunteered to me by merchants who could themselves have furnished the amount.

The opinion to which these facts relative to the whole matter force me is that Mr. Lazare’s claim as he states it is not altogether well founded, and that certainly there is nothing in it which would justify the interposition of our Government.

The Department cannot be unaware of my views, so often expressed, in these dispatches, to the effect that many of our citizens who have entered into transactions with this Government have been, and some of them are still sufferers from the bad faith, evasion, and delay which have characterized and seem to some extent at least still to characterize the Government of Hayti in regard to its engagements. I do not wish to be understood in this dispatch as endeavoring to claim any virtue or good motive for the Domingue and Rameau Government or for the present administration in any of its dealings with Mr. Lazare. I would have much preferred not to have been constrained by facts to write in what might by any possibility seem to be an unfavorable view of that gentleman’s interests as he conceives them.

Mr. Lazare asks for an arbitration. That is generally regarded as a friendly proceeding, I believe, and there ought perhaps to be no objection to it. But I must explain to you that while I shall of course be guided entirely by your instruction in this and every other view of the case, it becomes my duty to state that the unfriendly sentiment and feeling in Government circles here toward Mr. Lazare are such that they could not be immediately or easily overcome by any personal influence in those circles. I think that the allegations which have created this inimical feeling toward Mr. Lazare are not altogether well founded. They refer to his alleged unbecoming intimacy with Domingue and Rameau and partly to his asserted correspondence and fellowship with the avowed enemies of the present Government. While declaring again my lack of full belief in the justice of these allegations, I desire also to remark that, in my opinion, any mere feelings or prejudices which this Government may have in reference to Mr. Lazare, and whatever course prudence might for the moment dictate in regard to them, they ought not to be allowed to enter as serious and permanent element into the consideration of any rights that belong to Mr. Lazare.

I am, etc.,

Ebenezer D. Bassett.

Accompanying Mr. Bassett’s dispatch, above given, is a statement from Mr. Lazare, which was deposited by Mr. Lazare with Mr. Bassett as a basis of Mr. Lazare’s claim against Hayti. This statement, with the dispatch verifying it, now in the files of the Department, contains, after a recapitulation of the contract between him and Hayti and of its modifications, the following summary of facts on which the claim rests:

“The position and the duties of each of the parties being thus defined, it only remained for them to execute them; the Government without caring for the engagement it had contracted with Mr. Lazare, first broke the contract, and infringed it in its most vital parts.

“In wrongfully suppressing the names of the local directors in the official paper of the Government, Le Motiiteur, when the official announcement of the formation of the company was therein made; likewise in refusing to insert and to publish in the same paper the notice given by Mr. A. H. Lazare to insert in its columns the notice of the sale of the four thousand shares reserved for Hayti, and finally the illegal order given by the Government to prevent the printing of the statutes of the bank.

“The foregoing illegal, summary, and arbitrary acts on the part of the Government greatly impeded the success of the enterprise, and for which Mr. A. H. Lazare holds it entirely responsible.

“In disposing in favor of the loan in France of part of the custom duties affected to cover the advances which the bank was obliged to make in order to pay the expenses of the budget of the “Republic, and to pay the subventions granted to Mr. Lazare, and that the totality of these duties guarantied the extraordinary expenses which the bank was obliged to advance.

“In not paying a, greater portion of the accounts and bills for materials furnished for the bank and warehouse at Port-au-Prince, which it had engaged to pay.

“It is very evident that in the contract passed between Mr. A. H. Lazare and the Government of Hayti, it is clearly shown, both in the spirit and to the letter, that the Government had to commence first paying in the vaults of the bank its share of funds, and that only after this having been accomplished the obligation arose for Mr. Lazare to make his deposit of funds.

Now, on August 27, 1875, the secretary of finance and of commerce wrote to Mr. A. H. Lazare, announcing to him that the council of secretaries of state, in its sitting of that date, taking into consideration the difficulties which he has had to contend with and the necessity in which he was placed to realize the letter of credit of which he was the bearer, the council granted him a delay of forty-five days for the working of the bank, beginning from the 1st of September next, date which had been fixed by the contract for this operation.

“Mr. A. H. Lazare, who, on his side, knew the embarrassments of the Government and the material impossibility in which it was placed to deposit its share of funds in the vaults of the bank, according to the contract passed between the two parties, answered, the 11th of September, 1875, that in view of the importance of the communication which had been made to him by the secretary of commerce, who had placed him (Mr. Lazare) in the necessity of first seeing the vice-president and coming to ail understanding with him, he had been obliged to leave a few days pass without acknowledging the receipt of his letter; that nevertheless, as a friend of the Government, he was disposed to admit the postponement of the opening of the bank to the 15th of October, because he fully understood the situation of the Government, but that he hoped that the Government would give him its aid, instead of counteracting his plans and annulling his negotiations which he had made in behalf of the bank.

“That in answer to this letter the secretary of finance and commerce announced to Mr. A. H. Lazare that, according to the text of the contract passed with him, there could not be admitted any case of major force, inasmuch as regarded the capital of the bank, and that if passed the delay of forty-five days, Mr. A. H. Lazare did not fulfill his part, the Government would consider by full right the contract as null and void.

“That things remained in this state till the 14th of October, 1875, on which date the secretary of finance and commerce made known to Mr. Lazare that the Government of Hayti, being ready to deposit its share in the vaults of the bank, desired to know if he, A. H. Lazare, was equally prepared in what regarded his part.

“That Mr. A. H. Lazare, who was fully aware that the Government was not prepared, and that even if it were prepared, knew very well that nothing could be done without his presence, confined himself, in answering the secretary of finance, that as soon as the Government would have made its deposit, he would conform himself to the conditions which he had already made known to the vice-president of the council.

“That by his letter, in answer to the preceding one, the secretary of finance made known to Mr. A. H. Lazare that the Government had reason to be astonished at his proposition, which referred to the paying of a part in drafts, instead of paying in metallic specie, and that he was again authorized to declare to Mr. A. H. Lazare that in default of the punctual execution of his part of the contract on the 15th of October instant, it would remain null and void.

“That in consequence a commission was named by the Government (without the knowledge and without notifying Mr. Lazare) in order to verify that the date of the 15th of October, 1875, the Government had paid in, in the vaults of bank, the sum of $500,000 as its part of the capital, and that Mr. A. H. Lazare had neither previously nor during the course of the 15th day of the month of October made any deposit.

“That in the written exposition (procès verbal) drawn up on the aforesaid date by the commission, it was made known to Mr. Lazare, whom the Government informed, that in default of his having deposited his funds in the vaults of the bank, the contract passed between the parties became null and void.

“That in answer Mr. A. H. Lazare [informed] the Government that in the official paper the 17th he noted on the one hand, that according to the act of September 1, 1874, passed between the Government and himself, the Government had deposited in the National Bank, in presence of a commission named to that effect, in specie of gold and silver, the sum of $500,000, its part of the capital, according to the modifications made the 11th of May, 1875, while the written exposition (procès verbal) of the act of depositing, of which a copy had been made known to him, does not in any way mention the kind or lands of specie in which the payment had been made, and that it was of public notoriety that of the sum of $500,000 deposited the 15th of October, only $235,500 consisted in metallic funds, the remainder consisting in drafts and other papers furnished on the very spot in order to show that $500,000 had been deposited, when the contract expressly mentions that only specie in gold and silver shall be deposited

“That he, Mr. Lazare, reserved to himself the right to bring forward, whenever needed, the causes, independent of his will, brought on by the faults and the wrongful acts of the Government.

“That besides the right did not belong to Cither of the contracting parties to declare that they annulled the contract; that a contract can only legally be declared annulled by the consent of the two parties or by a competent tribunal.

“The contract thus annihilated, differences occurred between the Government and Mr. Lazare to such a degree that the Government refused violently, and with threats, the arbitration proposed by the said Mr. Lazare, in face of the persistence of the Government to cover this infraction by the definitive execution. Mr. Lazare, basing himself on the violent and arbitrary refusal which had been made to him in answer to his request, in order to arbitrate the position, took such measures as that position required in order to guarantee his interests and his person, without nevertheless alienating, in any way, his rights, so as to again claim them at the proper time.

“Mr. Lazare then prepared a report of his claim against the Government, which ho handed to the United States minister resident at Port-au-Prince in order to claim his rights, as Mr. Lazare could not see any other way to obtain justice; but later the Government recognizing its wrongs and promising to pay this claim, no further steps were taken in the matter for the time being.

“The events of the revolution supervening, Mr. Lazare left for the United States, where, a few days later, he was informed of the downfall of the late Government. On the 29th of April, 1876, the Haytian minister at Washington notified him of the fact that instructions had been received by him from the provincial Government of Hayti to advise Mr. Lazare that the aforesaid Government did [not?] recognize the validity of the contracts which had existed with Mr. Lazare and the last administration.

“On this account Mr. Lazare left for Washington, and submitted his claim to his Government, and a letter of the honorable Secretary of State was immediately forwarded, with the necessary instructions, to the United States minister resident at Port-au-Prince to occupy himself at once with the present claim. * * *.”

The statement closes with the following demands:

“That there be claimed of the Government of Hayti $500,000 which rightfully belong to him, owing to the annihilation of the contract, and paid to him without other form and without delay.

“That the Government name an arbitrator to decide on the damages and interest which are due him, owing to the infraction made to the contract.

“In making his reserves generally whatever, and particularly, as regards that of six per centum interest annually to date from the claim for $500,000.

“A. H. Lazare.”

On May 28, 1834, a protocol was signed by Mr. Frelinghuysen, as Secretary of State, and Mr. Preston, minister for Hayti, by which Mr. Lazare’s claim, with that of Mr. Pellietier, was referred to the Hon. William Strong, as arbitrator, for adjudication., This protocol, as already referred to in my report in Pelletier’s case, provides that (Article III)—

“The said arbitrator shall receive and examine all papers and evidence relating to said claims which may be presented to him on behalf of either Government.

“If, in presence of such papers and evidence so laid before him, the said arbitrator shall request further evidence, whether documentary or by testimony given under oath before him or before any person duly commissioned to that end, the two Governments, or either of them, engage to procure and furnish such further evidence, by all means within their power, and all pertinent papers on file with either Government shall be accessible to the said arbitrator.

“Both Governments may be represented before said arbitrator by counsel, who may submit briefs, and may also be heard orally if so desired by the arbitrator.”

It also provides that (Article VI)—

“The high contracting parties will pay equally the expenses of the arbitration hereby provided; and they agree to accept the decision of said arbitrator, in each of said cases, as final and binding, and to give to such decision full effect and force, in good faith, and without unnecessary delay or any reservation or evasion whatsoever.”

The protocol, as has been stated above in my report in Pelletier’s case, was never submitted to the Senate; but the arbitrator entered on his duties, and was attended during the proceedings in Lazare’s case by Mr. Phillips, the Solicitor-General, by Messrs. Thomson and Ashton, counsel on behalf of the claimant, and by Messrs. de Chambrun and Boutwell, counsel for Hayti. After a series of hearings, in which much testimony under oath was taken, evidence admitted or rejected under objection, and several documents received, the arbitrator, on June 20, 1885, found that the sum of one hundred and seventeen thousand dollars ($117,000), with interest from November 1, 1875, was due to Mr. Lazare from Hayti.

How far the award in the present case is to he regarded as invested with legal force has been already considered by me in the discussion of the Pelletier case. So far as concerns the right of the arbitrator to take testimony under oath, to reject or admit testimony offered against the objections of the opposing party, to issue commissions, and to assume, in general, judicial authority, the exceptions taken to the arbitrator’s action in the Pelletier case apply equally to his action in the Lazare case now before me.

Waiving, however, this question of the binding force of the action of the arbitrator, I proceed to take up the case on its merits.

The evidence which we have in this view to consider consists:

(1) Of the documents with which this part of my report opens, and which were not laid before the arbitrator.

(2) Of the proof, oral and written, taken by the arbitrator, which is given in the printed volume hereto attached.

(3) Of what is called the after-discovered evidence, placed at the end of said volume.

At the outset it is a matter of importance to consider what is the relative weight to be attached to these particular parcels of evidence. In this comparison it is essential to weigh the circumstances under which Mr. Bassett’s dispatch was written.

He was at the time the diplomatic representative of the United States, residing at Port au Prince, the scene of the transactions under investigation. He was on terms of intimacy with Mr. Lazare, who was for some time an inmate of his house, and to whose attractive social qualities, as well as to his activity in pressing his case, the dispatch does full justice. Nor can Mr. Bassett be charged with any particular partiality for Hayti. On the contrary, he censures the general policy and conduct of the Haytian Government in terms which, had this dispatch seen the light, an event which was not to have been warded against by him, it would have involved him in difficulties which would have made his stay at Hayti unendurable. It is impossible to read his dispatch, I think, without seeing that he tried to do justice in his narrative of the facts, and that if he leaned either way in his partialities it was towards Mr. Lazare. The paper is singularly able and lucid; it bears, as I have just said, what I believe to be marks of fairness; and it was written while the events were fresh in Mr. Bassett’s memory, while Mr. Lazare was still on the spot, and while the Haytian archives, which shortly afterwards were burned, were at hand to correct him in case of his falling into error. He was, in addition, a high officer of the Government, acting under specific instructions from the Department, making a communication, material errors in which, as coming from a person cognizant of the facts and acting under oath as an official investigator, would not only have been open to immediate correction as above mentioned, but would, upon exposure, have subjected him to severe censure if not to immediate recall. But no attempt was afterwards made to traverse the facts stated by him, however much his conclusions may have been dissented from. I must therefore hold that these statements, all other considerations being in equipoise, are to be regarded as more likely to be accurate than are conflicting statements made by Mr. Lazare, or those speaking for him, eight years subsequently, after the destruction of the Haytian archives and after the effect on memory of so long an efflux of time, aided by strong personal intesest.

I think the same should be said of Mr. Lazare’s statement made in February, 1877 to Mr. Bassett, when compared with the statement of Mr. Lazare’s counsel in January, 1885, and with Mr. Lazare’s subsequent testimony before the arbitrator, Mr. Lazare, when he handed to Mr. Bassett this statement of February, 1877, knew that Mr. Bassett was able to detect and comment on any errors of fact it might contain, and he knew also that the Haytian archives were at hand to verify his statements. When he made up his case for his counsel, in 1885, he addressed an auditory who had no such means of revision. Mr. Bassett’s dispatch and his own statement of February, 1877, appear to have been forgotten, and his own mind had been affected by the lapse of eight years, aided by that unconscious effect of strong interest in the distortion of past events to which I have already adverted. Nor is it to be forgotten that Mr. Lazare’s statement of February, 1877, is the only one signed by him. Those of October, 1877, and January, 1885, were made by his counsel simply as a third party. His statements before the arbitrator were oral, and were, to say the least, made in a way which would not impose on him any subsequent penal responsibility. In this view I must hold that Mr. Lazare’s statement of February, 1877, should prevail in cases where, all other things being equal, it conflicts with the statement and evidence of 1885. And, as I shall proceed to show, the conflict between this prior statement and the subsequent one of 1885, taken in connection with the after-discovered evidence’ hereto annexed, is so material as to destroy Mr. Lazare’s case for damages based on breach of contract.

analysis of evidence.

I. According to the statement of Mr. Lazare’s counsel, of January 15, 1885 (page 9), “On May 22, 1875, the organization, of the bank was duly certified by the Government at the head of the Government newspaper,” this being put forward as a proof that the contract was officially ratified by Hayti. In the statement of February, 1877, failure of such ratification is complained of by Mr. Lazare, it being asserted that the Government failed to give satisfactory notice, in the official paper, of the concession, and issued “an illegal order to prevent printing the statutes of the bank.”

II. In the statement of January 15, 1885, is the following:

“That when Mr. Lazare was in Paris he found that three grants of the same duties had already been made by the Haytian Government to their creditors. * * * These constituted a flagrant breach of the contract.” (Pages 13, 14.)

That these 1’grants” were prior to the “contract;” that they were matters of public notoriety, and that Mr. Lazare had notice of them when entering into the contract is asserted by Mr. Bassett in the dispatch above given, written when the events were fresh, and when he was in constant intercourse with Mr. Lazare. In the statement of Mr. Lazare’s counsel, of October 23, 1877, it is not pretended that Mr. Lazare was ignorant of these negotiations, but only that this alleged breach of good faith by Hayti was discovered in Europe by others. Mr. Lazare’s testimony on this point is not inconsistent with prior knowledge on his part of the precedent hypothecations. Even waiving Mr. de Chambrun’s affidavit as to the effect of Mr. Peters’s conversation on this point with Mr. Lazare in 1874, it would seem that either Mr. Lazare must, at the time of the contract, have known, as Mr. Bassett asserts, of the prior partial incumbrances, or was so bound to have known of them that he can not set up his ignorance now as an excuse for his failure to perform his engagements. Mr. Lazare, even in his latest statements, does not pretend that there were any false assertions made to him by Hayti in this relation, nor can he complain of any suppression of a matter as to which, if he was ignorant, he was bound to inquire. For myself, it is impossible for me to do otherwise than hold that he was cognizant of these prior hypothecations. No doubt their discovery in London and Paris in 1875 may have prevented him from obtaining the loans he desired. But for this he, not Hayti, was responsible.

III. By the statement of January 15, 1885 (page 14)—

“Mr. Lazare made his arrangements for the transmission of funds from Europe to Hayti in amount sufficient to enable him to supply his proportion of capital to the bank in case Rameau should continue to act in good faith with him in regard thereto.”

According to the statement of October 23, 1877, he negotiated, when in London, for the full amount of $1,000,000 from “the Consolidated Bank, Messrs. Kerfoot, Sears, and others.”

In his testimony before Judge Strong, Mr. Lazare says:

“I made some further negotiations, after some time with the houses of Kerford & Co., of Liverpool, and with Sears & Co., of London, and with the Hazlewood Brothers, of London.” (Page 49.)

But as a matter of fact Mr. Lazare did not obtain any reliable engagements for the furtherance of his plans, nor, if he had obtained promises from Messrs. “Sears & Co.” and “Hazlewood Bros.,” would such promises have been of any marketable value. What he obtained was, at the utmost, not bills convertible at the time into cash to start the bank, but simply credits, to avail the bank when it was started with adequate capital; and, as the after-discovered evidence shows, even as to this, in the case of Kerferd & Co., the only reliable firm with whom he dealt, this credit was not to be used in sums above £5,000, unless provided for by prior deposits. In examining the notes of the arbitration, I was struck with the fact that the alleged bills of exchange, which are set up as constituting an equivalent to the “metallic currency “Mr. Lazare was to contribute to the bank, were not only not exhibited at the hearing either in original or in verified copy, but that there was no extrinsic proof that such bills ever existed. So far as a negation can be proved, the negation that there were no such bills is proved by the after-discovered evidence.

But I do not rest on this. In Mr. Lazare’s statement of February, 1877, above noticed, which I must again refer to as giving a statement of the transactions as they appeared to him at the time, he never claimed to have made a legal tender of such drafts to the Haytian Government in fulfillment of his part of the contract. If not so tendered, he was, unless he can excuse himself, in default; and, being in such default, he can not, on this ground, maintain an action against Hayti for a breach of non-performance of the contract. It is also material to observe that when, as will be seen in a future page, Mr. Lazare was notified by the Government of Hayti not merely of its readiness “to deposit its share in the vaults of the bank,” but of its desire “to know if he was equally prepared,” and when, as we have a right to infer from his Btatement, from Mr. Bassett’s dispatch, and from the notice of October 14, 1875, hereafter quoted, he was duly informed of the meeting on the 15th of October to verify such deposits, he refused to attend, one of the reasons he gives being his “belief that nothing could be done without his presence.” It is difficult to avoid the conclusion that Mr. Lazare refused to attend, not merely because he did not choose to give the Government the opportunity of making good its deposit, should he except to its form, but because he was without the means of complying with his own stipulations. His refusal to attend when informed that he was called upon to prove his competency to comply with his contract is an additional circumstance to show that he was not so competent. And after so refusing, and the Government acting on such refusal, I submit that as a matter of law he can not subsequently set up such competency.

IV. In the statement of January 15, 1885, it is alleged that the Haytian agents in Paris, in June and July, 1875, showed hostility to the bank, and consequently “bankers having correspondents in Hayti informed Mr. Lazare that he was being duped,” and “that the shipment of specie to Hayti at that time would be idle as well as dangerous. * * * Mr. Lazare in Paris met with a practical and absolute breach of his contract on the part of Rameau.” (Italics in printed statement, page 13.)

There is no allegation whatever of such “hostility” in the statement of February, 1887, nor is there any proof beyond Mr. Lazare’s remarks to this effect ten years after the transaction closed. And this coincides with Mr. Bassett’s statement that the Haytian Government did its best to sustain Mr. Lazare’s plans for obtaining funds for the starting of the bank. Nor can this allegation of failure through Haytian intrigues in Europe be made consistent with the allegation of success in Europe of obtaining the desired loans.

V. According to the statement of January 15, 1885, Mr. Lazare “secured, while in Europe, and at considerable expense, the services of a gentleman prominent as a practical banker to work out the detailed operations of the bank, and brought him with him, together with competent assistants. He arrived with his family and business retinue about the 1st of August, 1875” (page 14). This is controverted, so far as concerns the “considerable expense” incurred by securing the services of “a gentleman prominent as a practical banker/” by the affidavit of Mr. Fesser, the “practical banker” in question, which avers that all he received was a draft on Kerferd & Co. for £500, which draft was protested for non-payment. Mr. Fesser, therefore, withdrew from the arrangement;

VI. By the statement of January 15, 1885 (page 16):

“After the completion of the bank building there were two keys procured which could open the door and procure entrance. One of these was kept by Mr. Lazare and the other by the Government. About September 1, 1875, the Government obtained from Mr. Lazare the key which he kept, thus obtaining absolute possession of the bank, to the exclusion of Mr. Lazare.”

Not only is no pretense of this kind set up by Mr. Lazare in his statement of February, 1877, but he gives us to infer that he had free access to the bank, and that an absance from the bank on his part was not coerced, but was to further purposes of his own.

VII. The statement of January 15, 1885 (page 16), declares, when speaking of the meeting proposed by the Government on October 15 for the making of its deposit and the production of his, that—

“On the said 15th October, 1875, some boxes in which soap had originally been packed, were taken into the bank building, but Mr. Lazare having had no notice to attend and having no key for access, the proceedings were entirely ex parte. Mr. Lazare knew nothing about what was going on in the premises until the official statement was made that the Haytian Government abrogated the contract.”

In the statement of February, 1877, we have the following:

“The Government having extended to Mr. Lazare a delay of forty-five days for the working of the bank, beginning from the 1st of September, which was accepted by Mr. Lazare, the Government informed Mr. Lazare that if passed the delay of forty-five days, Mr. A. H. Lazare did not fulfill his part, the Government would consider by full right the contract null and void.’ On October 14, 1875, the Government notified Mr. Lazare that ‘being ready to deposit its share in the vaults of the bank, [it] desired to know if he was equally prepared in what regarded his part. That Mr. Lazare, who was fully aware that the Government was not prepared, and that even if it were prepared, knew very well that nothing could be done without his presence, confined himself in answering the secretary of finance that as soon as the Government would have made its deposit he would conform himself to the conditions which he had already made known, etc.”

I beg also to call attention to another letter of the same secretary of October 14, 1875, to Mr. Lazare, which is given among the papers which are part of the claimant’s case, and which contains the following passage:

“Therefore, sir, I am authorized to declare again, and expressly to you, that unless you punctually perform your part of the contract at the specified date, that is to say, to-morrow, October 15 instant, said contract shall become null and void.”

After reviewing all the facts as above given, I must hold as to this vital question that Mr. Lazare had due notice of the proposed deposit by the Government; and that he deliberately refused to attend the meeting, in order to subserve purposes of his own.

VIII. In the statement of January 15, 1885, it is said (page 2) that Mr. Lazare was— “in June, 1874, president of the West India Steamship Company, whose steamers plied between New York and Port an Prince, in Hayti, and other points in the West Indies, At the same time he was managing director of the Indiana and Illinois Central Railway Company. He had large personal interest in these companies, and his time and attention were absorbed in their management.”

In his testimony he says he was, when he left for Hayti, “managing director” of the railroad at a salary of $6,000; and that he had a salary as president of the steamship company of “about $4,000, I think,” which salary, however, it is stated oh page 44, he had never received. It appears, however, from the testimony of the president of the railroad in question, that Mr. Lazare was not “managing director” of the road, but that he was, by agreement, to perform such services as should be required of him as agent, at a salary not over $500 per month; but that in 1874 and 1875 he rendered no services to the road, and that he received no payments of any kind from the road in those years. The road became insolvent in 1874, when foreclosure proceedings were instituted against it. The steamship company, also, in which he was interested, “afterwards,” according to the claimant’s counsel (final argument, page 17), “came to grief.” That Mr. Lazare was himself at the time insolvent may be inferred from the record of the judgments against him; nor is there anything to rebut this inference in the letters, produced by Mr. Lazare’s counsel from two gentlemen of respectability, as to Mr. Lazare’s character.

Aside from the fact that these letters are merely declarations of third parties, they do not purport to come from business men familiar with Mr. Lazare’s business transactions. The conclusion which may be drawn from the testimony as a whole is, that when he went to Hayti he was insolvent and out of employment, seeking a new field of enterprise in place of those he had been compelled.to abandon.

IX. It remains to notice the alleged letter of Mr. Lazare to the secretary of finance of October 18, 1875, produced before the arbitrator and incorporated by Mr. Lazare in his statement given to Mr. Bassett in February, 1877. This letter may be fairly designated as apocryphal, and I think that from its inconsistency with Mr. Lazare’s conduct at the time of its alleged date that date is shown to be a mistake. It is sufficient, however, in order to throw doubt on this letter to quote the following statement as to it from Mr. Bassett, in his official report above cited:

“I have some doubt whether Mr. Lazare actually wrote and caused to be delivered to the then minister of finance, commerce, and foreign affairs the closing letter which therein appears, dated October 18, 1875. I have not been able to find any traces of such a letter either in the columns of Le Moniteur or in any of the Government offices.”

This, it must be remembered, was before the destruction of the Haytian archives.

On the facts I have to report as follows:

There is no satisfactory evidence that the Haytian Government interfered with Mr. Lazare’s obtaining funds in Europe to start the bank. On the contrary, we have to infer from the evidence that it was deeply interested in Mr. Lazare’s success, and did, therefore, all it could to further his movements.

There is no evidence of any diversion by the Haytian Government, subsequent to the contract, of revenues which were to have gone to the bank. Whatever hypothecation of such revenues existed took place by public acts before the contracts, of which acts, if it be possible to suppose Mr. Lazare was ignorant at the time of making the contract, he was bound to have taken notice.

There is” no evidence that the Haytian Government did not, substantially, as hereafter explained, comply with its engagements in depositing on October 15, 1875, $500,000 in metallic currency in the vaults of the National Bank. The certificate of the parties called by the Government to witness this deposit merely states, it is true, that the deposit of $500,000 was “duly” made, according to the contract, but the official notice of the Government, published the day after, states that it was made in “goldand silver,” and no contradiction of this, if we except the alleged letter of October 18, 1875, was made by Mr. Lazare until February, 1877. We must remember that the persons certifying that the deposit was duly made, and acquiescing in the Government’s statement of the next day that it was made in “gold and silver,” comprised, according to Mr. Bassett’s statement, several foreign merchants of Port-au-Prince, embracing the head of a large American firm, all of them spoken of by Mr. Bassett as men of high respectability. It may, however, have been, as suggested by Mr. Bassett, that while a large proportion, amounting to nearly one-half of the deposit in question, was “in gold or silver,” a part was in specie or bullion drafts from merchants acting as bankers in Port-au-Prince, who were represented on the commission, and who, according to Mr. Bassett, were abundantly able to supply the bullion at call, I do not propose to say how far such a deposit, if it were so shown to have been made, fulfills the stipulations of the contract. I am inclined to think that if these merchants said, “Here is an order for the bullion; it will be given if you send for it,” they being fully capable of honoring the order, this was a sufficient fulfillment of the stipulation. But I am at all events prepared to say that Mr. Lazare, by willfully, for the purpose, as he tells us, of defeating the action of the Government, refusing to attend the examination by the commission, can not now dispute their conclusion that the deposit was “duly” made, or the report of the Government that the deposit was in “gold and silver.” If he intended to hold that an order by a banker for gold was not to be treated as gold, he should have made the objection at the time, when it could have been met and obviated. After refusing to attend and inspect the payment, his refusal not being negligent or coerced, but deliberate, he can not take the exception now.

So far from it appearing that Mr. Lazare was ready on October 15, 1875, to perform his part of the contract, the evidence, taking it altogether, shows that he had no means for such performance, and that his failure in this respect was not induced by any action on the part of Hayti of which he had not notice or ought not to have taken notice at the time when he entered into the contract.

It may be that the Haytian Government, after substantially complying, as I hold it did, with the contract by this deposit, was bound not to rescind, but, by the contract, to propose to arbitrate. But Mr. Lazare can not take this ground now. As a matter of fact, I have no doubt that he ratified the rescission of the contract. He remained at Port-au-Prince for six months after he was notified of the rescission, treating with the Haytian Government in a way which can only be explained on the hypothesis that he regarded the contract as at an end. There is not a paper produced by him showing that he asked for an arbitration. But he certainly did ask for favors inconsistent with the idea that he had a claim on Hayti for anything more than expenses incurred by him as her agent. He obtained a grant of $10,000 in Haytian bonds and an appointment as Haytian consul in New York. His attitude towards Hayti at that time, as depicted by Mr. Bassett, is that of a man who says, “I have failed to get the funds I promised; the thing is at an end; do something for me.”

The claim for enormous damages, made after the fall of the Rameau government, and after the consulship at New York was at an end, may be inferred to be an after-thought. The contract, I hold, was rescinded by Hayti on October 16, 1875, and this rescission was ratified by Mr. Lazare. At the utmost, all he could claim after this was his expenses and salary as Haytian agent. It was probably to recompense him, for his losses in this respect that the $10,000 Haytian bonds and the New York consulship were given him. If there were promises made to him of larger sums, these promises were gratuitous or dependent on future services (such as the palace building) which he never rendered. At all events, the only claim he can now ask this Government to aid him in recovering is that for services rendered in his agency in excess of the payment made to him as above stated.

In coming to this conclusion I have the approval of Mr. Justice Strong, the arbitrator by whom the award was made, and to whose great legal ability, wide experience, and unblemished integrity I am glad to pay tribute. In a letter, dated February 18, 1886, to Mr. Preston, the Haytian minister, a copy of which is annexed, Judge Strong states that the after-discovered evidence “was of such a character that it would materially have affected my decision had it been presented to me pending the hearing of the case, and before my powers under the protocol had ceased.” This was before either Judge Strong or myself was aware of Mr. Bassett’s dispatch of April 24, 1877, and of Mr. Lazare’s statement of February of the same year with which this report opens. When a copy of Mr. Bassett’s dispatch, together with a memorandum of Mr., Lazare’s statement as to his notice of the deposit, was subsequently given to Judge Strong, he made, on June 23, 1886, an oral statement to the Department as follows:

“In view of these documents, which were not exhibited to me, I am clearly of the opinion that the award ought to be opened; that the Government can not afford to press a claim not clearly founded in honesty; that if these documents had been presented to me, together with the other affidavits presented to me on the motion to open the award, they would have made a vast difference in the award which I did make.

“These papers tend to show that the only fault of Hayti was the failure to propose arbitration instead of at once declaring the contract void, the contract having stated that differences should be referred to arbitrators. That not having been done, resort may be had to law to recover such injuries as the claimant may have sustained; under the circumstances it would seem to me that he could only claim for expenses necessarily incurred by him.”

I can not but feel that the honor of the United States is eminently concerned in treating this award as opened, and in this Judge Strong concurs. The dispatch of Mr. Bassett, and the statement of Mr. Lazare of February, 1877, above noticed, are, for the reasons I have given, fatal, in my judgment, to the award. The counsel for Hayti are not to blame for not producing them. We have an affidavit that they were ignorant of them, and their ignorance is easily explained. The papers were not printed among our annual reports on our foreign relations. The archives of Hayti, which might have given a clew to these papers, had been burned. The counsel for Hayti had no access to our records; and on their applying to inspect the records bearing on this case, I declined to grant this request, on the ground that only papers specifically designated could be inspected, and such designation the counsel could not give. We could not have expected the counsel for the claimant to produce documents so destructive of their case, though it should not escape observation that they produced subsequent papers in which the documents not produced are noticed. But it was the duty of the counsel for the United States to have produced these documents; and if through inadvertence, which no doubt was the cause of the omission, the documents were withheld, the United States can not do otherwise than decline to enforce the award. An award which the arbitrator declares he would never have made, had the whole record been before him, can not be the basis of hostile action by the United States.

I have considered this claim heretofore on the supposition that it is one as to which, if it be proved, the Government of the United States ought to intervene. But, even in case of such proof being made, intervention on our part, beyond the tendering of good offices, would be a departure from our settled policy. We have repeatedly held that even when reputable capitalists ventured their funds in the bonds of a foreign Government we would not intervene in their behalf. But even merits such as these the present claimant can not set up. He went to Hayti as an insolvent, nor did he put any capital whatsoever in the bank, the failure to establish which on the part of the Haytian Government is the injury of which he complains. He must, or ought to, have seen that the scheme was a wild speculation, which had no chance of success. It does not appear that of the 8,000 shares of the bank to be subscribed outside of the Government subscription a single share was taken in Hayti or abroad, and it is hardly possible to conceive that any European capitalist of respectability would have ventured his funds in such an enterprise, damaged as it was by the monetary character of Hayti in foreign markets. Mr. Lazare can not be supposed to have expected success in such a scheme unless we attribute to him such recklessness as would preclude him from maintaining such a suit as the present; and whether he went into the movement knowing it was hopeless, or in wild ignorance of the elements with which he was to deal, he is not entitled to claim our aid. But even if he were, ail the aid we could give would be our good offices. The claim, even supposing it is well founded, is based on a speculation in Hayti into which Mr. Lazare voluntarily entered.

It remains to notice the position that a re-examination of the merits of this case is precluded by the announcement of the President, in his annual message of 1885, that the arbitration had closed and a final award been given. But such an announcement no more precludes such a re-examination than an announcement of the close of the late Mexican Commission precluded a re-examination of the Weil and La Abra cases, or an entry of a judgment by a court precludes the hearing of a motion to open such a judgment on proof of fraud or mistake. I must repeat in this connection the position with which this report opened, that, essential as it is that the intercourse between nations should be marked by the highest honor as well as honesty, the moment that the Government of the United States discovers that a claim it makes on a foreign Government can not be honorably and honestly expressed, that moment, no matter what may be the period of the procedure, that claim should be dropped.

Respectfully submitted.

T. F. Bayard.

Department of State,
Washington , January 20, 1887.

List of inclosures.

• No. 1.—Record in Pellietier case, 2 vols.
• No. 2.—Record in Lazare case, 1 vol.
• No. 3.—After-discovered evidence in Lazare case.
• No. 4.—Mr. Strong to Mr. Preston, February 18, 1886.

[Inclosure 3 to inclosure in No. 74.]

In the matter of A. H. Lazare against the Republic of Hayti.

newly-discovered evidence.

Affidavit marked No. 1.

I, Allen Hammond, of No. 7 Tower Chambers, in the city of Liverpool, in the county of Laucaster, in England, merchant’s manager, do solemnly and sincerely declare as follows:

(1) I am of the age of 37 years and upwards.

(2) I was, during the whole of the years 1875 and 1876, and am now, principal employé in the firm of Messrs. George B, Kerferd & Co., of the said city of Liverpool, merchants.

(3) On the 9th day of August, 1875, the said firm wrote to Mr. A. H. Lazare (who is therein described as president of the National Bank of Hayti) the letter of which a true copy is hereunto annexed and is marked with the letter A.

(4) I have compared the said copy letter with the press copy thereof, which was made from the original letter, and which is on pages 73 to 75 of letter-book No. 91 of the said firm of George B. Kerferd &. Co.

(5) No bills were drawn and no transactions took place under or pursuant to the said letter, the only transactions between the said Mr. A. H. Lazare and the said firm of George B. Kerferd & Co. being those which are set out or referred to in the two exhibits marked, respectively, B and C, which are also annexed hereto, and which are true copies of or extracts from the account-current books, Nos. 20 and 27, respectively, of the said Messrs. George B. Kerferd & Co.

(6) The balance of £56 5s. 11d., which stood to the credit of the said Mr. A. H. Lazare in the books of the said Messrs. George B. Kerferd &, Co., as appears by the said account-current, under date of the 30th of June, 1876, was remitted by the said firm to the said Mr. A. H. Lazare, who was then at 71 Broadway, New York, by bill of exchange on Messrs. Brown Brothers & Co., of New York City, on July 29, 1876, as appears by the copy letter, which is also hereunto annexed, and is marked D, and which is a true copy of a letter which was written and sent by the said firm of George B. Kerferd & Co. to said Mr. A. H. Lazare on said last-mentioned date.

(7) I have carefully examined all the said exhibits hereunto annexed, with the press copies of the originals thereof, which appear in the press-copybooks of the said firm of George B. Kerferd & Co., and have also compared the said Exhibits B and C with the ledger of the said firm, so as to satisfy myself of their accuracy.

(8) It is within my own knowledge that the said two letters, the said two accounts, and also the said bill, were duly forwarded to the said Mr. A. H. Lazare.

And I make this solemn declaration conscientiously, believing the same to be true, and by virtue of the provisions of the statutory declaration act of 1835.

A. Hammond.

Signed and declared by the said Allen Hammond, at the city of Liverpool, in the county of Lancaster, in England, this 10th day of July, 1885, before me.

George Layton

, [seal.]
Notary Public, Liverpool, and a Commissioner to administer Oaths in the Supreme Court of Judicature in England.

I, the undersigned, vice and deputy consul and ex-officio notary public of the United States of America for the port of Liverpool and its dependencies, do certify and make known to whom these presents shall come, that George Layton, before whom the annexed statutory declaration of Allen Hammond has been made and subscribed, and whoso signature and official seal are appended to the attestation thereof, is a notary public of England, duly admitted and sworn, and that to his acts as such notary full faith and credit are due.

Given under my hand and seal of office, at Liverpool, this 10th day July, and year of our Lord 1885.

[seal.] W.P. Paull,
Vice and Deputy United States Consul, ex-officio Notary Public.

Nous, soussigné, consul de la République d’Haiti à Liverpool, certifions sincères et véritables les signatures do Monsieur Alien Hammond, employé principal de la maison George B. Kerferd & Co., de Liverpool; de Monsieur George Layton, notaire public, exercant à Liverpool; et de Monsieur W. P. Paull, vice et député consul de la République des £tats-Unis de l’Amérique.

Liverpool, ce 10 juillet 1885.

Le consul:
[seal.]

W. E. Roberts.

A.

Liverpool , August 9, 1875

[George B, Korferd & Co., Direecion Telegrafica, Kerferd, Liverpool, book 91, pages 73–75.]

A. H. Lazare, Esq.,
President of the National Bank of Hayti, Port-au-Prince:

Dear Sir: We have much pleasure in confirming the agreement entered into by our Mr. George B. Kerferd, on our behalf, with the National Bank of Hayti, of which you are president, under date of 29th July ultimo, said agreement being as follows:

We engage to open the Natiònal Bank of Hayti a credit of £50,000, say £50,000 to be drawn in bills at 60 or 90 days’ sight, and payable in London. The conditions under which said credit is granted are: That we shall never be required to accept bills for a larger amount than £5,000, unless we receive bills of exchange, specie, bill of lading, or other security representing the full value of such drafts as the bank may draw against us. Should the bank at any time draw upon us, making use of the above credit of £5,000, without having funds or security in our hands to meet such bills as may be drawn, you engage to remit to us, by the mail steamer leaving your port next after that which conveys such bills, either produce, specie, or bills of exchange representing the full value of your drafts on us; so soon as you shall have remitted us sufficient produce or specie to cover the amount of the bill drawn against us, then you shall again be at liberty to draw further bills of exchange against us to the full amount of the open credit of £5,000 above mentioned, always engaging to cover-such amount as may be drawn by remittance made to us by the following steamer. At all times you shall be at liberty to draw to the full extent of the entire credit of £50,000 by sending us (by the same steamer which shall bring the advice of the draft), say, bills of lading, specie, or good bills of exchange on London, Paris, or Havre.

All goods or specie consigned to our care shall be covered from marine risk by our open insurance policy, we engaging to have at all times a clear undeclared balance of £20,000 to cover the value of your consignments.

For working the business of the bank, as above indicated, we will charge a commission of one-half per cent, for accepting bills drawn upon us, and one-half per cent, on all bills of exchange sent us for collection in payment of our advances or acceptances. We will also charge the usual commission and brokerage on all sale of produce or specie, as also on all purchases of goods.

We trust that the above terms may prove satisfactory and enable you to do a large business with us to mutual advantage. We on our part shall always use every endeavor to give you entire satisfaction, and we certainly believe that our experience in this kind of business will enable us to obtain every advantage for the benefit of your bank and its constituents.

We are, dear sir, yours truly,

Geo. B. Kerferd & Co.

This is the exhibit marked A, referred to in the annexed declaration of Allen Hammond, made before me this 10th day of July, 1885.

George Layton,
Notary Public, Liverpool, and a Commissioner, etc.

B.

[Book 26, fo. 242.]

A. M. Lazare, esq, in account-current with George B. Kerferd & Co., Liverpool.

1875.						1875.
July	30.	Cash in London, p. Sharps & Wilkins.	£500	00	0	July	30 (154)	£10	11	0
Aug.	9.	Our inv. of A.H.L., 1 box T. p. Hatian.	3	8	6	Aug.	9 (144)		1	2
Sep.	17.	Our note of charges, 1 c. saddlery, p. bb diel	1	7	0	Sep.	17 (105)			3
Dec.	31.	Postage	1	10
Interest to balance								3	7	0
								13	19	5
Balance			497	10	6
			1,003	7	0

Cr.

1875.
Sept.	20.	His check on Consolidated Bank	£1,000	0	0	Sept.	20 (102)	£13	19	5
Dec.	31.	Balance of interest at 5 per cent	3	7	0
			1,003	7	0				19	5
	Balance		497	10	6

Liverpool, 31 December, 1875.

Pp. Geo. B. Kerferd & Co.,

D. De Harrondo.

This is the exhibit marked B, referred to in the annexed declaration-of Allen Hammond, made before me this 10th day of July, 1865.

George Layton,
Notary Public, Liverpool, and a Commissioner, etc.

C.

[Book 27, fo. 80.]

A. H. Lazare, in account-current with George B. Kerferd Co., Liverpool.

1876.		Dr.				1876.
Feb’y	1.	Paid draft of G. S. Cheesemen	£25	0	0	Feb.	1. (150)	£0	10	3
Mar.	10.	Our invoice p. “Jamaican	391	4	6	March	10. (112)	5	19	11
May	22.	Remitted Mrs. Thirza Harte, London	30	4	6	May	22. (39)		3	2
June	3.	Postages.
June	3.	Interest to balance						5	14	11
		Balance	56	5	11
			503	5	5			12	8	3
1875.		Cr.					1875.
Dec.	31.	Balance of account	£497	10	6	Dec.	31. (182)	£12	8	3
Dec.	31.	Balance of interest at 5	5	14	11
			503	5	5			12	8	3
		Balance	56	5	11

E. & O. E.

Liverpool, 30 June, 1876.

Geo. B. Kerferd & Co.

This is the exhibit marked C, referred to in the annexed declaration of Allen Hammond, made before me this 10th day of July, 1885.

George Layton,
Notary Public, Liverpool, and a Commissioner, etc.

D.

Liverpool , July 29, 1876.

[Book 94, page 12. Geo. B. Kerferd & Co., Direecion Telegrafica, Kerferd, Liverpool.]

A. H. Lazare, Esq.,
71 Broadway, New York, P. O. Box 5126:

Dear Sir: We beg to inclose a copy of your account-current to the 30th ultimo, showing a balance in your favor of £56.5.11, in settlement of which please find herewith first of exchange on Messrs. Brown Brothers & Co., New York. Kindly acknowledge receipt of same to yours, truly,

Pp. Geo. B. Kerferd & Co.,

D. de Harrondo.

Draft account-current,

This is the exhibit marked D, referred to in the annexed declaration of Allen Hammond, made before me this 10th day of July, 1885.

George Layton,
Notary Public, Liverpool, and a Commissioner, etc.

Affidavit marked No. 2.

I, Francis Fesser, gentleman, of 32 Cambridge Gardens, Hotting Hill, in the county of Middlesex, do hereby, under Oath, and at the request of M. Stephen Preston, Haytian minister to Her Britannic Majesty, make the following statement:

In July or August, 1875, Mr. A. H. Lazare came to me and proposed that I. should take the position of manager of a bank which he was about to establish in Hayti. I was then a manager of the Anglo-Peruvian bank, limited, in London. I accepted, and executed an agreement with him to that effect before M. Villevaliex, chargé d’affaires for the Republic of Hayti in London. It was a condition of this agreement that I was to receive £1,000 sterling before leaving England. A. H. Lazare handed me his draft at short sight for £500 on Messrs Kerferd & Co., of Liverpool, and told me that the balance would he paid me later on. He then embarked for Hayti. I saw him off at Southampton. I was to follow him a month later. The day after Lazare’s departure I sent the draft by post to Messrs Kerferd & Co., of Liverpool, for acceptance. They returned me the draft in the ordinary course of post, telling me that they refused acceptance. I then sent the draft to another firm of Liverpool to get it j>ro-tested. I went with the protested draft to M. Villevaliex and drew up a protest withdrawing my agreement to undertake the management of the Haytian bank, on the ground that it was conditional on my receiving £1,000 in advance, and that this condition had not been fulfilled. I also wrote to Lazare, telling him what had occurred, and holding him responsible for breach of contract. I have received no reply to that letter, neither did I ever receive any intimation from Messrs. Kerferd & Co. or any one else that Mr. Lazare did not wish me to go out to Hayti.

F. Fesser.

Sworn at 36 Moorgate street, in the city of London, this 13th day of July, 1885, before me,

T. F. Chorley

,
A commissioner to administer oaths in the supreme court of judicature in England.

[Consulate-general of the United States of America for Great Britain and Ireland at London.]

I, Thomas M. Waller, consul-general and notary public ex officio of the United States of America at London, England, do hereby make known and certify to all whom it may concern that Thomas F. Chorley, before whom the annexed affidavit of Francis was made, as appears by his signature thereto, is a commissioner to administer oaths in the supreme court of judicature in England, practicing in the city of London, duly commissioned and authorized to receive affidavits, and that to all acts by him so done full faith and credit are and ought to be given in judicature and thereout.

In testimony whereof I have hereunto set my hand and affixed my seal of office at London aforesaid, this 14th day of July, in the year of our Lord one thousand eight hundred and eighty-five.

Thomas M. Waller,
Consul-General.

Deposition marked B.

On this 16th day of July, 1885, before me, Lyman B. Dunnell, referee duly appointed by the order of the supreme court, dated July 15, 1885, to take the deposition of Henry B. Hammond, appeared the said Hammond, who, being by me duly sworn, did depose and say:

Q. What position did you occupy in the years 1874 and 1875 in the Indiana and Illinois Central Railroad Company?—A. President.

Q. During that time did the said company have any contract with A. H. Lazare in regard to services to be rendered by him to the company?—A. Nothing, except an agreement of settlement with Lazare in regard to certain matters pending between him and the railroad company, dated May 3, 1872, the ninth clause of which is as follows, to wit:

“Ninth. And said A. H. Lazare further agrees that during the construction of said road, and up to the completion of the same, which completion is to be certified by the chief engineer, and such certificate to be final, if directed by said railway company he will render unto them and perform any and all services of any kind and nature whatsoever, and at any place, and shall not require for said services as he shall perform a larger salary than at and after the rate of $500 per month.”

Then of what the company should do, in the fourth clause of the same contract, there is as follows:

“To pay to said A. H. Lazare at and after the rate of $500 per month from the 3d day of May, 1871, until the date of this contract, for services rendered by him to said company, and to pay to the said A. H. Lazare at and after the rate aforesaid for such services as he may hereafter be required by said company in accordance with the provisions of this agreement hereinbefore contained and more particularly set forth in section 9.”

Q. During the years 1874 and 1875, what services, if any, did Lazare render to the company?—A. Not any; the foreclosure proceedings were commenced in 1874, and the deed for the sale of the property thereunder was made in August, 1875. The decree was dated in the May previous.

Q. Was Lazare managing director during any part of the years 1874 and 1875?—A. No; ho was not managing director. He was a director in 1884, until about October, I think; not after that.

Q. Did the company recognize any claim made by Lazare for services during that period?—A. No, sir; nor did the company pay him for any such services.

Q. Did the company ever require the said Lazare to perform any services after the date of the agreement of 1872 (May 3)?—A. I think not.

H. B. Hammond

Subscribed and sworn to before me this 10th day of July, 1885.

L. B. Bunnell,
Referee.

Affidavit marked No. 4.

In the matter of the claim of A. H. Lazare against the Republic of Hayti.

City and County of New York, ss:

Charles Adolphe de Chambrun, being first duly sworn, deposes and says:

(1) That he is the general counsel for the Republic of Hayti in the United States, and that the Hon. George S. Boutwell and deponent are counsel for the Republic of Hayti in the matter of the claim of A. H. Lazare.

(2) That for the purpose of ascertaining what was the commercial standing of the three English firms mentioned by said Lazare in his evidence, on oath, before the arbitrator in the above-named case, he called on August Belmont & Co., bankers, of this city; that in their office he saw Mr. Walter Lutgen, one of the partners of said firm, then managing it in the absence of Mr. August Belmont; that he asked him to furnish him (deponent) whatever trustworthy information his firm might have on the subject of the commercial standing in the year 1875, as merchants or bankers, of Geo. B. Kerferd & Co., of Liverpool, England; of Sears & Co., of London, England; and of Hazlewood Brothers, of same city.

That thereupon said managing partner of said firm of August Belmont & Co., presented to him several printed quarto volumes, one of which was entitled, Liverpool Commercial List, for 1875, published by Leyd & Co., of England, and another volume, printed in same form and published by same publishers, entitled, London Commercial List, also for 1875.

(3) That deponent, being so informed of the trustworthy character given to the information so published by August Belmont & Co., proceeded to investigate the subject-matter of his inquiry, assisted by said Mr. Walter Lutgen.

That he found at the beginning of both volumes the following explanation of the way firms were rated:

“A and 1, one, may be accepted as the highest ranks.

“1¼, 1½, 1¾ as high, undoubted standing; very good.

“2, 2/4, 2½ as good in gradations.

“3, 31/4, 3½ as of lesser standing.

“3¾, 4 as small or doubtful.

“48/4, 5 as cases of fraud, the latter figure indicating sham firms.”

That a second explanation, marked Creditor A, is given to very conservative creditors to the following effect:

A and 1, 1, 1¼ good for any amount.

1½, say for 3,000 to 5,000 pounds.

1¾, say for 1,500 to 3,000 pounds.

2, say for 1,000 to 1,500 pounds.

2¼, say for 300 to 1,000 pounds, and so on.

(4) That deponent, assisted as aforesaid, found in the commercial list of Liverpool for 1875 the firm of George B. Kerferd & Co., which was rated at 1¼, 1½.

That deponent asked said Mr. Walter Lutgen how he would rate the standing of said firm, and he answered that it was undoubted, and might be, according to creditor list A, from 3,000 to 5,000 pounds.

(5) That deponent having examined, in the same manner hereinabove stated, the London commercial list for 1875, he found only one firm, Sears & Co., which was rated 2¼, which, according to the explanations given in said volumes and restated by Mr. Walter Lutgen, might be rated, according to the creditor A list, from 300 to 1,000 pounds.

(6) As for the firm of Hazelwood Bros., it was not found in said commercial list, which, as deponent was then informed, was proof that said firm had no standing at all.

Charles Adolphe de Chambrun.

Sworn to before me this 21st day of July, 1885.

Theo. Clarkson

,
Notary Public. New York County.

Affidavit marked No. 5.

City and County of New York, ss:

In the matter of the claim of A. H. Lazare against the Republic of Hayti.

Charles Adolphe de Chambrun, being first duly sworn, deposes and says:

(1) That he is the general counsel of the Republic of Hayti in the United States, and that Hon. George S. Boutwell and deponent are counsel for the said Republic in the matter of the claim of A. H. Lazare.

(2) That he has received information from England, which he regards as entirely trustworthy, from which it appears that Sears & Co., of London, and Hazlewood Brothers, also of London, failed long ago; that the utmost efforts are being made to discover the whereabouts of the members of said firms or of any of them; but that said efforts had not yet been successful at the time the latest mails received here were forwarded from England.

(3) That F. Fesser, mentioned by Lazare in his evidence, has been found, and that deponent is informed that he made an affidavit, which, according to news received by cable by deponent, was mailed in London to deponent’s address early last week.

(4) That on information and belief deponent states that F. Fesser has declared that the draft given him by Lazare, on George B. Kerferd & Co., was at three days’ sight, and that it was protested for want of funds.

(5) That as soon as said affidavit is received it will be submitted to the honorable William Strong, arbitrator.

(6) That deponent is earnestly and actively engaged, jointly with others, in further investigating said claim in Hayti, in Europe, and in this country, and from preliminary information already obtained, deponent believes it to be founded on fraudulent representations.

(7) That deponent, reposing confidence in the character of the claimant in this case, which he had ground to suspect during the progress of the hearing before his honor William Strong, arbitrator, trusted his statements, and that it was on or about June 20, 1885, that this deponent received the first Information that led him to suspect that the statements made by Lazare were not true, and thereupon deponent proceeded, jointly with other persons, to investigate the whole matter.

Charles Adolphe de Chambrun.

Sworn to before me this 31st day of July, 1885.

Theo. Clarkson,
Notary Public, New York County.

Certified search, marked No. 6.

The clerk of the city and county of New York will please search his office for judgment and decrees, and also for transcript judgments from the superior court, judgments from the court of common pleas, judgments from other courts, against Adolphe H. Lazare, from January 1, 1874, to December 31, 1885, and certify the result for

Geo. J. Schermerhorn,
206 Broadway, New York,

Marine, 1874, Mch. 25. Adolph H. Lazare, ads. Eugenia Winter, $168.28. Wise and Jackson, att’ys.

Marine, 1875, Mch. 12. Same ads. David Irwin & Timothy N. Bristol, as executor, &e $511.04. S. D. Sprague, att’y.

Supreme, 1875, Ap’l 10. Same ads. Burton W. Harrison, $1,067.68. Charles T. Drunnell, att’y.

Marine, 1875, Aug. 24. Same ads. Victor Prevost, $155.38. Harrison & De La Hare, atty’s.

Marine, 1875, Aug. 24. Same ads. Same, $184.71. Same att’ys.

Supreme, 1876, Mch. 23. Same ads. John Rooney, $2,727.79. John Taylor, att’y.

Marine, 1876, Mav 4. Same ads. Elise Magnin, David J. Magnin, and Jaques Guedin, $1, 187.09. Hugh W. Trenor, att’y.

Marine, 1878, Feb. 26. Adolphe H. Lazare ads. Ernest Lean, $561.00. A. Gilhobly, att’y.

Marine, 1878, Mch. 18, Adolphe H. Lazare ads. Lysander W. Lawrence, $141.69. James H. Monk, att’y.

Marine, 1878, Ap’l 17. Same ads. William King, $479.39. M. C. Miller, att’y.

Supreme, 1878, July 3d. Same and another ads. Henrietta P. Sprague, administratrix, &c., of John H, Sprague, dec’d, costs, $172.47. John N. Whiting, att’y.

1st jud. dist., 1878, Sept. 25. A. H. Lazare ads. William J. A. Fuller, as assignee, &c., $27.15.

Marine, 1879, May 28. Same ads. Abraham Lent, $1,114.51. Forbes & Sage, att’ys.

Supreme, 1879, Nov. 1. Adolph H. Lazare ads. Allston Wilson, $658.56. Stearns & Ourtis, att’ys.

Marine, 1879, Oct. 7, Dec. 3. Same ads. The Charter Oak Life Insurance Company, of Hartford, Connecticut, $489.40. Joseph C. Jackson, att’y.

6th jud. dist., 1880, Feb. 7. Arthur H. Lazare (Arthur being fictitious, as defendant’s Christian name is unknown to plaintiff) ads. James R. Amidown, $62.90.

Supreme, 1880, Ap’17. Adolph H. Lazare ads. Ernest Lean, $158.07. J. M. Guiteau, att’y.

6th jud. dist., 1880, May.15. Same ads. Ernest J. Thierry, $80.44.

Supreme, 1880, Dec, 2, Adolph H. Lazare ads. Mary E. Budd, as ex’x, etc., of Charles A. Budd, deceased, $259.98. Jas. Brooks Dill, att’y. Atkinson. None other found for the period.

July 16, 1885, 9 a.m.

Patrick Keenan,
Clerk.

Affidavit marked No. 7.

City and County of New York, ss:

Thomas M. Wheeler, being duly sworn, says that he is an attorney at law, practicing in the city of New York; that he has examined the judgment rolls in the various judgments against Adolphe H. Lazare in the cases hereinafter specified, and from such examination finds the facts to be as hereinafter stated.

That when it is stated that an inquest is taken, it means that when the cause was called for trial that the defendant did not appear.

Eugenia Winter v. Adolphe H. Lazare. Inquest work and material for ladies’ bonnets, between 23 Sept., 1873, and 1 October, 1873.

David Irwin and Timothy H. Bristol, as executors of will of Hugh B. Jackson, v. Same. Inquest, groceries and cigars, between 12 July, 1873, and Jan. 12, 1874.

Burton W, Harrison v. Same Default, services as attorney between June 1 and July 10, 1874, said services being about a proposed contract for and the proposed issue of a Government loan for the Government of the Republic of Hayti.

Victor Prevost v. Same. Default, promissory note, dated New York, June 20, 1874, at 60 days after date,

Victor Prevost v. Same. Default, promissory note, dated New York, June 20, 1874, at 60 days after date.

John Rooney v. Same. Judgment by referee for money loaned Nov. 8, 1873, $75; Nov. 22, 1873, $125; Dec. 6, 1873, $370; Feb’y 25, 1874, $100; March 17, 1874, $92: July 18, 1874, $49.50; July 22, 1874, $440; Oct. and Nov., 1874, $62.

Elize Magnin and others v. Same. Default, promissory note, dated New York, October 9, 1874, at two months.

Ernest Lean v. Same. Default, three causes of action. 1st account stated October 5, 1876, balance due $404; 2d, work, labor, and services as a butler and servant from August 1, 1876, to M’ch 1, 1877, at $27 per month; 3d, services of Celina Lean, wife of plaintiff, for work, labor, and services as servant from August 1, 1876, to March 1, 1877, at $18 per month.

Lysander W. Lawrence v. Same. Default, goods, wares, and merchandise between 8th Sept., 1876, and 22 Sept., 1876.

William King v. Same. Default, goods, wares, and merchandise, prior to June 1, 1873.

Abraham Lent v. Same. Default, clothes made and repaired between 25 Sept., 1872, and 21 May, 1874.

Allston Wilson v. Same. Default bill of exchange dated August 28, 1878, at Jacmel, Hayti, by Adrian H. Lazare on Adolphe H. Lazare, 60 days after sight, for $850, and accepted by him.

Charter Oak Life Insurance Co. v. Same. Default rent of office, 57 Broadway, from May 1, 1877, to May 1, 1878, at $500 year; $91.66 paid on aocount.

Ernest Lean v. Same. Default promissory note dated Jan. 29, 1879, at 90 days.

Mary E. Budd, as executrix, v. Same. Default offered judgment services between April 1, 1870, and Nov., 1886.

Thomas M. Wheeler.

Sworn to before me this 22d day of July, 1885.

Theo. Clarkson,
Notary Public, New York County.

[Inclosure 4 to inclosure in No. 74.]

Mr. Strong to Mr. Preston.

Washington , February 18, 1886.

Dear Sir: I have the honor to acknowledge the receipt of your letter from Paris dated January 24, 1836, in which you propose to me several inquiries relative to the claim of A. H. Lazare against the Government of Hayti. These inquiries I think I may, without impropriety, answer.

My award, as sole arbitrator of that claim, was made on the 13th day of June, 1885, and filed in the State Department within two or three days afterwards. I then left the city, with my family, for the summer. Very soon thereafter I was followed to the Catskill Mountains, where I was sojourning, and an application was there made to me on behalf of the Government of Hayti to open the award and allow a rehearing, because of newly discovered evidence, which, it was alleged, it had been impossible to obtain earlier. I appointed a day for hearing the application, and at the time appointed I heard an argument by Mr. De Chambrun in support of it, and by the counsel of Mr. Lazare against it.

Affidavits and much other evidence, obtained from England after the award, evidence which I thought would have been pertinent to the case, and very material had it been known and presented before the award was made, were exhibited to me. After a full hearing of the counsel, and after examining the new evidence exhibited, I felt constrained to refuse the application, solely for the reason that in my judgment my power over the award was at an end when it had passed from my hands and had been filed in the State Department. I gave no written opinion, but t stated verbally to the counsel that such was my reason for declining to attempt to open the award and allow a rehearing.

I may add that, in my judgment, the newly-discovered evidence exhibited and submitted to me, at the application for a rehearing, was not merely cumulative. It was much more; and it was of such a character that it would materially have affected my decision had it been presented to me pending the hearing of the case and before my powers under the protocol had ceased.

I am, etc.,

W. Strong.