Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 3, 1888, Part I

No. 678.
Mr. Thompson to Mr. Bayard.

Legation of the United States,
Port au Prince Hayti, November 17, 1888. (Received November 30.)

No. 222.]

Sir: I transmit herein, in order to show the status of the case of the steamer Haytian Republic, recent dispatches passed between this legation and the Haytian foreign office. Such dispatches will show that being unable to convince the authorities of their irregularity and illegality, and arrive at a settlement of the case, they apparently hope for a decision favorable to them from the Department at Washington as to a solution of the affair.

Mr. John D. Metzger, agent of the steamship Haytian Republic, has just brought me a printed copy, with translation, of a document entitled “Protestation against the condemnation of the American steamer Haytian Republic,” which he requests me to forward to the Department, and which I find has been carefully prepared, and is a striking defense of such vessel, hence I inclose it herein marked with translation I and J.

I am unable, by this mail, to send copies of all the documents with translations in the case, but will do so as soon as such work is finished.

I have, etc.,

John E. W. Thompson.

[Inclosure 1 in No. 222.—Translation.]

Mr. Margron to Mr. Thompson.

Department of State of Foreign Relations, Section No. ——,
Port au Prince, November 15, 1888.

Mr. Minister: The Government takes pleasure in rendering homage to the sentiments of high agreeableness of which you have given proofs, you and the commander of the Boston, in the two interviews that the chief of the executive power has had with you relative to the capture of the Haytian Republic. The courtesy that presided at these interviews, both impressed with the most perfect cordiality, is a new testimony of the kindly dispositions with which is animated towards Hayti the great Republic of the American Union, and the discussions that have taken place on the subject, notwithstanding the divergence of our views, have only tightened the bonds that united the two Republics by the pleasantness that formed the basis.

Also, the Government of Hayti does not hesitate to defer to your Government the case of the Haytian Republic, of which all the documents will be submitted to its high appreciation by our minister at Washington.

Convinced of its good rights and full of confidence in the impartiality of the great Republic, the Haytian nation in no wise doubts that the American Government will recognize the well-founded judgment of the prize court instituted at Port an Prince and fully give it right, without being in any manner necessary to have recourse to an ulterior arbitration.

Please accept, Mr. Minister, the assurance of my high consideration.

The counselor charged with the department of foreign relations.

Eug, Margron.

[Inclosure 2 in No. 222.]

Mr. Thompson to Mr. Margron.

Legation of the United States,
November 15, 1888.

No. 95.]

Sir: I am in receipt of yours of this date, wherein you state that you do not hesitate to refer the case of the Haytian Republic to the judgment of the Government of the United States, and express a desire so to do since we have already had two conferences on this subject, and without any result whatever. After mature consideration of the question and consultation with Capt. F. M. Ramsay, of the United States ship Boston, I have decided to comply with your request, and will therefore communicate to my Government, by the first opportunity, the tenor of your dispatch.

I hereby call to your attention the fact that one of the crew of the Haytian Republic died last evening, and that others are sick on board; in consequence I must request that such crew be turned over to my care, that I may embark them by the first opportunity to the United States.

It is understood that the authorities taking charge of the steamer Haytian Republic are responsible to the United States Government for the same.

Accept, sir, the assurance of my distinguished consideration.

John E. W. Thompson,
Port au Prince.

[Inclosure 3 in No. 222.—Translation.]

Mr. Margron to Mr. Thompson.

Department of State of Foreign Relations, Section No. ——,
Port au Prince, November 16, 1888.

Mr.Minister: I have the honor to inform you that the Government has named Messrs. E. Leon, lawyer; D. Abellard, director of the national foundry; Phocion Da-guerre, chief of the movements of the port of the capital, and P. Jean Jacques, justice of peace of the northern section of this city, members of a commission to proceed conjunctively with those that you will add to take an inventory of the steamer Haytian Republic.

I beg you to kindly let me know the names of the members that you will have designated. Please accept, Mr. Minister, the assurance of my high consideration.

The counselor of the Government charged with the department of foreign relations.

Eug. Margron.

[Inclosure 4 in No. 222.]

Mr. Thompson to Mr. Margron.

Legation of the United States,
November 16, 1888.

No. 96.]

Sir: I have the honor, in reply to your dispatch of this date, wherein I am invited to name members of a commission to make an inventory on the steamer Haytian Republic, to inform you that such vessel being held by the Haytian authorities as a “good capture,” that notwithstanding the case has been referred to the Department of State at Washington, the custody of the vessel is in the hands of her captors, who, according to law, are to take proper care of her. In consequence, I can not accept to take part in any proceedings whatever, and beg most respectfully to reiterate that the authorities holding such vessel are directly responsible to the United States Government for any damages in the premises.

Accept, sir, I pray you, the assurance of my distinguished consideration.

John E. W. Thompson.

[Inclosure 5 in No. 222.—Translation.]

Mr. Margron to Mr. Thompson.

Department of State of Foreign Relations, Section No. ——,
Port au Prince, November 16, 1888.

Mr. Minister: I have had the honor to receive your letter of the 15th instant responding to mine of the same date.

You make me to know that after having conferred with the captain, F. M. Ramsay, of the U. S. S. Boston, you appreciate the decision of the Government to defer the case of the steamer Haytian Republic to the Government of the United States through the intermediary of the minister of Hayti at Washington, and that you will communicate by the first occasion to your Government the tenor of my letter.

In adding afterwards that one of the men of the crew of that vessel is dead, and that the others are sick on hoard, you ask that you he granted the faculty of sending these latter to the United States by the first opportunity.

And you say finally that it is understood that the Haytian Government, in taking charge of the steamer Haytian Republic, remains responsible towards the American Government.

In thanking you for this communication, of which the Government has taken good note, I would inform you that it consents to your request relative to the sending away of the crew of the vessel to the United States, under the reserve to exercise against it the right of pursuit before the American courts.

Please accept, Mr. Minister, the assurance of my high consideration.

The counselor charged with the department of foreign relations.

Eugene Margron.

[Inclosure 6 in No. 222.—Translation.]

protest against the condemnation of american steamer haytian republic.

The Haytian Republic, an American ship of the “Haytian Mail Steam-ship Line,” the head offices of company being in Boston, Mass., had quitted the port of St. Marc when she was captured by the Haytian gun-boat Dessalines, in execution of a blockade decreed on the 15th of October, 1888, by the provisional government of Hayti.

By circular of the “chief of the executive power” dated the 21st of October, a prize court (tribunal des prises) was soon instituted at Port au Prince. After a preliminary investigation, which was a mere mockery, inasmuch as the witnesses called were not even subjected to the formality of an oath, the captain and agent of the proprietors of the captured vessel were summoned (by subpoenas dated the 27th of October) to a public trial by which the validity of the capture was to be established, the confiscation of the vessel and cargo was to be pronounced, and damages were to be awarded.

Mr. John D. Metzger, the agent of the Haytian Mail Steam-ship Company, alone appeared on behalf of the company, and petitioned for a brief delay necessary to prepare his defense. But this delay was promptly and categorically refused him, upon which he entered a protest and withdrew, leaving the court to pronounce judgment by default.

It is held that the steam-ship Haytian Republic, arriving at the capes when this city was already in a state of insurrection against the provisional government, had landed a cannon (6–pounder), mounted on a carriage; that she had taken on board not only a delegation of the revolutionary committee of the cape, commissioned (they say) to arouse the departments of the Northwest, the Artibonite, and the South, but also soldiers, and eighty cases of ammunition; that she had transported soldiers from Port de Paix to Gonaïves and from Gonaïves to St. Marc: that from the latter places she had proceeded to Petit Goâve, to Miragoâne, and to Caves, where the delegation sent a manifesto and other printed matter to the military authorities; that at Jacmel, which the delegation had succeeded in arousing to arms, the Haytian Republic had taken on board the two constituents (i. e., members elected to the constitutional assembly) of that city, one from Bainet, and other Haytians, to carry them, as it appears, to the North; but that in the waters of St. Marc she met the Dessalines; that signals of various kinds—among them a blank charge of powder from a cannon, followed by six charges with balls—were given, but that these did not succeed in preventing her superior speed from entering the port, and that she was captured whilst coming out on the 21st of October, 1883.

Such are the circumstances, real or supposed, upon which the prize court (tribunal des prises) have based their judgment of the 31st of October last, by which they have declared the capture of the Haytian Republic good and valid, ordered the confiscation of this vessel to the benefit of the Government of Hayti, and have condemned jointly and severally the captain and owner thereof to pay to this Government $50,000 damages.

One thing is certain, viz, that, excepting a return once from Gonaïves to Port de Paix, the Haytian Republic did not deviate from her habitual route to serve the insurgents.

II.

A circular letter of General Légitime, the “chief of the executive power,” under date the 21st of October, 1833, announced to Messrs. H. Léchaud, J. N. Léger, Justin Dévot, M. Laforest, and Dantès Fortunat that, acting with the advice of his council, he had constituted them a special prize court (tribunal spécial des prises) for the purpose of adjudicating on the cases of contraband of war which should present themselves throughout the duration of the insurrectionary movements of the North and of the Artibonite.

Now, no law, no text of a constitution of Hayti, nor even of the treaty of the 3d November, 1864, having admitted a special prize court (tribunal spécial des prises) side by side with the ordinary tribunals of the Republic of Hayti, it follows inevitably that the “chief of the executive power” has, by this act, forced and confounded into one two powers or functions altogether distinct from each other, viz, the creation of a new jurisdiction, and the designation of the functionaries who are to exercise it.^*

A parallel case presented itself to the attention of the United States Government during the Mexican war, in which the Supreme Court decided that neither the President of the United States nor any functionary acting under his authority has the power to confer jurisdiction in the matter of prizes to courts or tribunals whose authority does not emanate from the law or from the Constitution. (See Calvo, vol. 4, sec. 2862 in fine.)

In Hayti there has existed, ever since the foundation of the Republic, the same separation of the legislative from the executive power. It is either the constitution or the law only (being the work of the former of these powers) which institutes jurisdictions. Since 1816 the executive has not had, in a matter of this kind, any other power except that of appointing to judicial functions already created by the legislature.

If, therefore, the present “chief of the executive power” had the right to name the members of the prize court (tribunal des prises), his action would not, and could not, be legal until after a law enacted by the legislature had decreed the existence, determined the powers, ‘and fixed the composition of this tribunal. It is therefore in violation of the invariable principles of Haytian law and right that General Légitime assumed the authority to give to the persons whom he had chosen the commission to adjudicate on the case of the Haytian Republic.

To meet this grave difficulty, some pretend that before the judgment of the prize court was pronounced—i. e., before the 31st of October—the unauthorized and illegal circular by which General Légitime, on the 21st of October, 1888, created the said prize court had been approved in the deliberations of the constitutional assembly in session at Port au Prince.

If this be true, it is nothing else and nothing less than a solemn avowal of the illegality of the act by which General Légitime created his prize court. It can not be proved that such a ratification can have the effect of effacing this radical defect, the existence of which it so clearly recognizes. But, as a fact, this allegation is not true. In the month of September eighty persons were elected to compose the constitutional assembly (assemblée constituante). The principle of the majority, which has always governed, and which still governs, the workings of the Haytian chambers of legislature, exacted the presence of forty-one members (constituants) at least, in order to render valid the acts and deliberations of any session of this body. Now, the number of citizens elected to the “assemblée constituante,” and who have taken their seats in the legislative halls since the 15th of October, 1888, has never exceeded thirty-six, and therefore the decision by which they sanctioned the circular of the 31st of October must be null and void, being the act of a powerless minority.

III.

According to Bluntschli, whose work is standard on this matter, “the form of proceeding before the prize court or councils not being regulated by international law, recourse must be had to the forms in use in the State from which the council derives its powers.” (See Droit International Codifié No. 848.)

Admitting the creation of the prize court or council, such as was decreed in October, 1888, it is still inadmissible that, in the absence of any law, such prize court should proceed according to caprice or arbitrary pleasure, for the reason that neutral parties have the right of untrammeled defense, and they have need of rules by which they shall be guarantied that the prosecution is conducted with impartiality.

Of all the forms of trial in use in Hayti, that which might have been chosen as of more adaptability in the premises is the form of the code of criminal instruction (code d’instruction criminelle), because the character of the facts judged by the prize court or council is confined to infractions of the penal code. Neither the solemn procedure before the jury nor the too-hasty procedure of the police courts is adapted to our case. It is rather to the mode of procedure before the correctional courts that recourse should be had, if the object is to reconcile that promptness which the public interests claim with the respect due to the defense of neutral parties.

Now, in the trial of simple misdemeanors (i. e., offenses punishable by fine and imprisonment) before the correctional court, the law grants to the accused a delay of three fall days to prepare his defense. If, for example, the subpoena is served upon him on the 27th, the trial can not be ordered to take place before the 31st.

But in the case of the Haytian Republic, such was the haste to close the affair even at the sacrifice of justice, that although the summons were served on Messrs. Metzger and Compton only on the 27th of October, the 30th was fixed for the trial. Mr. Metzger, who presented himself on behalf of the ship and owners on the day fixed, prayed in vain for the delay necessary to prepare his defense. The prize court refused to entertain his prayer, and passed an adverse judgment on the case.

IV.

According to this judgment, pronounced on October 31, 1888, the facts upon which is based the conviction of the Haytian Republic are of two categories, viz: That at the cape she had sold a cannon with its carriage,^* had given passage to armed insurgents and emissaries of the insurrectionary party, and had transported ammunitions from one port to another; in a word, that she had violated the blockade.

V.

It is not satisfactorily proved from the papers and declarations of the witnesses that a cannon with its carriage had been landed at Cape Hayti. Neither Mr. Victor Jean Pierre, nor Mr. Vital Alcide Charlemagne, nor Mr. Léon Nicolet, nor even Mr. Solon Ménos—in fine, none of the witnesses called by the prosecution has testified to this fact. The numerous letters from functionaries or from ordinary Haytian citizens mentioned in the judgment say nothing on this subject, and (what is especially worthy of notice) neither the captain nor the agent of the vessel has been challenged or compelled to give any explanation. It is said that a letter was written by the French consular agent to his minister at Port au Prince on the subject, and it is upon this simple letter, which possesses no judicial value whatever, that this count in the accusation is based.

But the prize-court or council ought to have perceived that the author of this letter, not being an avowed or ostensible agent of the Government of Port au Prince, his reports, although written, perhaps, in accordance with the mind of the Government, are worth nothing in the eyes of justice, and that what is necessary is the affirmation, not of a person who writes from a distance, but of a witness who appears in person, and who does not testify except under oath.

As to the arms, they were probably those which the individuals taking passage either from the cape or from Port de Paix habitually carry about with them. But even upon this point the depositions do not agree.

Doubtless the French consular agent, whose letter has been shown to be valueless as testimony, speaks of 256 men well armed with Remington or repeating rifles. Mr. Léon Nicolet mentions 300 armed men who had landed at Gonaïves; but Mr. Vital Alcide Charlemagne had seen only 125 men, more or less armed, land at Gonaïves, whilst Mr. Victor Jean Pierre affirmed that, when during the voyage which preceded the capture the Haytian Republic landed at St. Marc the volunteers from the Cape and Gonaïves, these volunteers were not armed. If in the depositions of the same witness there is mention of arms during the return voyage from Jacmel to St. Marc— i. e., the voyage when the vessel was captured—it is necessary to weigh attentively the terms which he used, viz: “They say that she (the vessel) had landed these arms on Saturday.” Thus it is not certain that the persons transported from the cape to St. Marc were armed, if we except a half dozen whom Captain Compton admits to have had arms.

But, however this may be, neither the sale of the cannon nor the transportation of the eighty cases of ammunition (which, besides, is not attested by any one but the French consular agent at the cape), nor the passage given to the volunteers from that city and from Port de Paix, can serve as a legal basis for a judgment against the Haytian Republic. In fact, the restrictions to the liberty of the commerce of neutrals with an enemy are (1) interdiction from carrying to such enemy contraband of war, and (2) interdiction from giving passage to the officers and soldiers actually in his (the enemy’s) service.

There is no doubt that this cannon and the eighty cases of ammunition are contraband of war according to article 20 of the treaty of the 3d of November, 1864, existing between the United States and the Republic of Hayti, and that the volunteers from the cape, from Port de Paix, and from Gonaïves were soldiers in the service of the enemy. But when it is a question of prohibited articles or of hostile persons, that which constitutes the misdemeanor of contraband of war on the part of the neutral party is the actual presence of arms or soldiers on board the vessel. After they have arrived at their destination, after they have been landed, the offense is finished, the misdemeanor ceases, and at the same time the right of investigating or prosecuting it.

Bluntschii says (see No. 818):

“Vessels which transport hostile troops become neutral again as soon as the transportation has been effected, and they can not be captured after the lauding has taken place.”

Calvo says (see Drait International, § 2467):

“In strict equity the misdemeanor of contraband being successfully accomplished in the voyage going, the vessel is not subject to capture in returning.”

Wheaton agrees with Sir William Scott, whose opinions he cites as follows:

“The general rule relative to articles which are contraband of war is, as Sir William Scott defines, that the articles must be captured in delicto, and during the actual pursuit of the voyage to the hostile port.”

“If,” says Sir William Scott, the goods are not captured in delicto, and during the actual pursuit of the voyage, no penalty is at the present day attached.”

When the Haytian Republic was captured at St. Marc she had quitted Jacmel and was on her return voyage.

Several days had elapsed since she had accomplished her voyage going to the hostile ports, and since she had landed the arms, ammunitions, and troops, she was free therefore from all legal prosecution under this head.

But the opinions of authors, though favorable, go for little in presence of an argument of conventional law. The Haytian Republic assuredly belongs to citizens of a neutral power. If other proofs of this were wanting the judgment of the prize-court rendered 31st October, in which this fact is recognized, would supply them. Well, according to the last paragraph of article 28 of the treaty of the 3d November, 1864, existing between the United States and the Republic of Hayti—

“If it be evident from other documents, whether a passport or certificates or other proofs admissible according to the customs and usages of nations, that the vessel belongs to citizens or subjects of the neutral power, she shall not be confiscated, but shall be released, with her cargo, the contraband articles excepted, and shall be set free to pursue her voyage.”

Article 10 of the same treaty declares with reference to persons found on board a neutral vessel:

“They can not be taken unless they are officers or soldiers in the actual service of tie enemy.”

Thus, not only was the Haytian Republic free from all legal prosecution from the very moment she had landed the articles and soldiers accounted contraband, but what is more, even had she been taken in delicto with all these actually on board, the Government of Port au Prince would have had no legal right, neither to arrest her nor to break up her voyage, nor to confiscate her to their benefit. All that this Government could legally have done is to have seized the contraband articles, and to have made prisoners of the soldiers and officers.

It is proved that on board the Haytian Republic were two emissaries from the cape hound on a political mission to the south and to Jacmel. Nothing, however, justifies the belief that Captain Compton knew the object of their vogage. Two passengers, viz, Messrs. Léon Nicolet and Charlemagne, who made the voyage with them, had not been aware of their presence, because, without doubt, no special mark nor avowed title had disclosed their capacity or mission.

If, at Cayes, the delegation from the cape sent a manifesto and other printed matter to the commandant of the arrondissement, there exists a letter from the latter functionary, dated the 19th October, 1888, and addressed to provisional government, which, proves that it was not the captain of the vessel, but a stranger from the land, who took the said manifesto and printed matter ashore.

If the delegation did the same thing at Petit Goâve and at Miragoâne, the silence of the local authorities about the matter does not justify the belief that Captain Compton was the intermediary at those places any more than at Cayes.

It is pitiful to see with what lack of consistency the judgment of the prize-court (October 31, 1888) has endeavored to make Captain Compton the instigator of the insurrection at Jacmel, when, as a fact, his ship entered and left that port on the very day that the population had risen against the government of Port au Prince.

What is true, what alone is true, in spite of the unfounded conjectures inspired by political passion is, that the Haitian Republic carried, as passengers, from the cape to Jacmel, and from Jacmel to St. Marc, two delegates of the department of the North, two emissaries of the insurrection, enemies of the power which dominates at Port au Prince; but these were neither officers nor soldiers in the service of the enemy.

Did this vessel, by that act, disregard the obligations of neutrality? Not at all. The second paragraph of article 19 of the treaty of November 3, 1864, existing between the United States and Hayti, says plainly:

“The same neutrality extends to the persons found on board, although these persons may be the enemies of the two parties or of one of them, unless they are officers or soldiers in the actual service of the enemy.”

VI.

In contempt of international practice (see Calvo, vol. 4, sec. 2882), the commander of the Dessalines did not affirm, under oath, the truth of the report which he made concerning the capture of the Haytian Republic. This report, therefore, presents nothing but mere allegations, without any guaranty of exactitude, declarations which nothing recommends as worthy of credit—in fact, to employ any expression used in criminal procedure—nothing but simple statements (not evidence), which may or may not aid a judge in forming a general idea.

Mr. Gaillard (the commander) has not been heard as a sworn witness, neither before the prize-court nor at the preliminary inquiry.

The following is a copy of his report, which, after three days of toil and disappointment, Mr. John D. Metzger finally obtained from the prize-court:

Port au Prince, October 21, 1888.

“To the Chief of the Executive Power:

“I have the honor to report to you that yesterday, the 20th instant, about 4.45 o’clock in the afternoon, as we were at the point of La Grande Saline, otherwise called Grande Pierre Baie, a distance of 6 miles from St. Marc, we perceived a steamer in the direction south by west half west a distance of 12 or 13 miles, under the island of La Gonâïve. We immediately ran down upon her. Little by little as we advanced towards her, she directed her course toward the bay of St. Marc. Having approached a distance of 3 miles from the vessel we hoisted our flag of rendez-vous, sounded the whistle; nothing was able to stop her. We were obliged, therefore, to fire a blank charge from the cannon in order to stop her. Seeing that she did not comply, we sent six balls at her, which did not reach her, the last falling in the direction of her two masts, at the distance of a quarter of a mile. We were then a mile and a half from the vessel. She had already reached the bay of St. Marc. We took up our position to watch her all the night. The next day, Sunday, towards 7.30 o’clock, she attempted to quit the bay. I whistled to her; I ran down upon her. Seeing that she would not stop I fired a cannon, and then only she changed her course.”

But, fortunately, a journal of Port au Prince, Le Progrès, in its issue of the 26th October, 1888, had already published the same report in the following terms:

“Port au Prince, October21, 1888.

“President: I have the honor to report to you that yesterday, the 20th instant, about 4.45 o’clock in the afternoon, we perceived a steamer going toward the island of La Gonâïve, steering in the direction of the bay of St. Marc. We gave pursuit immediately. Notwithstanding our signals and the reports of our cannon she dared to enter into the latter city, where she remained until next day. At 7.30 o’clock in the morning she prepared herself and came out. Always on our guard we blew the whistle and fired a gun so as to oblige her to surrender at our demand. Indeed the Haytian Republic, for it was certainly she, stopped, etc.”

Of these two versions of one and the same document there is one which must be apocryphal. This important fact must not be lost sight of, viz, that the text of the journal Le Progrès was published anteriorly to the adverse judgment and at a moment when they had no fears as to the issue of the affair; whereas the copy delivered to Mr. Metzger is posterior to the arrival at Port au Prince of a United States war ship sent expressly to investigate the case of the Haytian Republic. Is it going too far if one concludes from this that the numerous variations which this copy bears, over and above the statements contained in the journal, are due to the present necessity, recognized by those in fault, of justifying themselves elsewhere than before the Haytian functionaries of the prize-court?

Whatever may be thought of this supposition, the decided difference in the two texts of the reports in question does none the less demonstrate how little credit is to be given to the declarations of Commander Gaillard. According to one of these texts he had only seen a merchant ship appear, which ship steered in the direction of St. Marc, but he has not attempted to say whereabouts he himself was, and by so doing aid us in finding out whether he actually guarded the port or not. According to the other he specifies the point from which he discovered the Haytian Republic and goes as far as to determine the distance between the two vessels, viz, 12 or 13 miles. With all due deference to the commander of the Dessalines, however, it is clear either that he is not very well skilled in the calculation of distances or that he wantonly deceives himself, because if, in reality, he had been 6 miles north of St. Marc (the bay being 10 miles in width from one extreme point to the other), a vessel which would be Under the island of La Gonâïve, outside of the southern extreme point of the bay, would be distant from the Dessalines not 12 or 13 miles only, but 16 miles and upwards.

Of the cannon-balls which failed to reach he says: “The last fell in the direction of the two masts of the Haytian Republic, at the distance of a quarter of a mile. We were then a mile and a half from the vessel.” That is mathematically false. Two thousand seven hundred and seventy-eight meters are equivalent to 1½ marine miles; the cannon of the Dessalines can project a ball to a distance of 3,500 meters; a ball thrown from the Dessalines in the direction of the Haytian Republic at a distance of a mile and a half would, therefore, have gone beyond rather than have fallen short (on this side) of the latter vessel.

After that, when Commander Gail lard declares that it was at a distance of 3 miles from the Haytian Republic that he hoisted his flag of rendez-vous, blew the whistle, and fired a blank charge of powder, nothing guaranties that his figure is exact; nothing guaranties that he did not fix upon it by a mere guess or that he did not prepare it expressly, wishing to make it believed that the vessel pursued was in a position to observe the signals from the Dessalines.

The truth is that this gun-boat, cruising a long time in the direction of Gonaïves, had left the northern promontory of the bay of St. Marc, known as “La Table du Diable,” a long distance behind when she perceived the Haytian Republic, who was entering in the bay of St. Marc. If Commander Gaillard, then returning, hoisted a flag, this signal, which the distance rendered invisible to the naked eye, had not been seen, and nothing else in the direction of the Salines had attracted the attention of Captain Compton and his crew. If the whistle had been sounded and cannon discharged it would be necessary first to ascertain unmistakably the distance, the state of the atmosphere, and the force and direction of the wind before it could be proved that they had been heard. In any case the Haytian Republic, whom the judgment of the prize court extolled for the superiority of her speed, had already entered far into the bay, whose entrance she found absolutely free, and was able then to await at her anchorage, which she had nearly reached, an explanation of the signal.

There is one fact, however, which no one has thought of doubting, which is that on the 20th of October last the Haytian Republic entered the port of St. Marc and the next day quitted it, at a time when this port was declared blockaded. This fact is not calculated to legalize the capture of this vessel.

Two elements, in fact, are necessary to constitute the violation of a blockade on the part of a vessel who has entered into and quitted a hostile port; (1) a knowledge of the blockade, and (2) the effectiveness of the blockade.

If one or the other of these conditions is wanting, the neutral vessel is not subject to capture, and this in virtue of the general principle of the liberty of commerce with hostile ports.

It is true that by a decree dated the 15th of October, 1888, the provisional government of Hayti declared that the ports of St. Marc, Gonaïves, and Cape Hayti were blockaded, but such declaration has no binding force for strangers if it has not been brought to their knowledge by proper notification.

There are three kinds of notification, viz, (1) the general or diplomatic notification, which is given to neutral governments; (2) the special notification which the commander cruising gives to vessels sailing in the line of the blockade or are there found; and (3) the notification which, in order to mark the commencement and to circumscribe the action of the blockade, the commander of the blockading forces signifies to the authorities of the places whose outside communications he is charged to intercept.

The necessity of the first is indisputable. General Légitime, recognizing this obligation, notified, by a dispatch dated the 16th October, 1888, the United States minister at Port au Prince of the proclamation of the blockade decreed by the provisional government.

Notwithstanding the diplomatic notification the special notification is always indispensable. This principle is avowed by the prosecuting officer (commissaire du gouvernement) of the prize court at Port au Prince. In his summing up he said, “Commander Gaillard did everything which he possibly could to stop the vessel and to give to her the special notification necessary in such cases.” This doctrine has been proclaimed also in the judgment of the prize court (31st October, 1888), which judgment says, “Considering that a blockade is regular when this blockade has been preceded by a general notification and by a special notification.”

There is here no error on the part of those who formed the prize court of Port au Prince. They have had recourse to the French jurisprudence, which is authority in Hayti in all matters where said jurisprudence is not in direct opposition to a text of law, and without perceiving it, perhaps, they have adopted the decision of President Lincoln, of the United States of America, contained in his proclamation issued on the 19th of April, 1861.

Charles Calvo, who, in the sense of his opinion, quotes a considerable number of treaties, says, “We do not think that it is going too far to regard the special notification as an essential formality of a blockade.” (See Calvo, vol. 4, sees. 2582, 2583, 2584, 2589.)

The Haytian Republic had no special notification of the blockade of St. Marc. Commander Gaillard pretends to have sounded the whistle, to have hoisted intentionally a flag of rendez-vous, and to have fired at her six or seven times, and the prize court have considered these warnings as establishing sufficiently the special notification.

But, besides the fact that the mere blowing of a whistle has no precise signification, that it is possible for the motion or hoisting of a flag not to be remarked, and that the cannon was fired after the Haytian Republic had entered the port; besides these facts, we say, there is one circumstance which proves that these warnings did not signify the pursuit of the Dessalines and the existence of the blockade. On board of the Haytian Republic were the delegation of the insurrectionists of the North, returning from Jacmel, together with the constituents of that city, the constituents of Bainet, and other passengers who could not delude themselves nor hope to delude others with respect to their true character as enemies of the Government of Port au Prince, and who certainly were not anxious to be captured unnecessarily, having it in ‘their power at the same time to avoid such a misfortune. Very well! If, on the Haytian Republic, they had been able to see or to hear the signals given by the Dessalines, if, above all, they had been able to understand the signification of these signals, is it not irresistibly clear that the delegates, the constituents, and the Haytian passengers would, on arriving at St. Marc, have abandoned the sea altogether and have continued their voyage by land, seeing, too, that all the territory from this point to Cape Hayti was in favor of the insurrectíon? If they acted otherwise, if they quitted St. Marc again immediately on the same vessel (as they unquestionably did, it is certainly because the signals did not Warn them in an unmistakable manner that the port was blockaded by the Dessalines.

But the sounds of a whistle, the motion of a flag, the distant reports of cannon—are these, properly speaking, the “special notification” of a blockade? Although in general the form of individual warning is not determined, it is not by signals that the French practice has decided that it shall be given. These signals are equivocal. The “special notification” must be made in writing and must be registered on the muster-roll of the neutral vessel. (See Comte Molé, Dépêche du 17 Mai, 1838; French treaty with Brazil, Bolivia, Venezuela, Ecuador, New Grenada; years 1828, 1835, 1843, 1844.)

Thus, also, the conseil d’état (council of state) annulled the capture of the Louisa because it was not sufficient that the blockade had been notified to foreign powers; it was necessary, besides, that the vessel should have been specially notified of the existence and extent of the blockade, and that the announcement of this notification should have been written on her muster-roll. (See Calvo, Vol. 4, sec. 2661.)

The Government of the United States has recently adopted a rule of conduct which assimilates itself to the French practice. The declaration of the blockade of the ports of the Southern States, made by President Lincoln, on the 19th of April, 1861, contains the following:

“If, with the intention of violating this blockade, any vessel whatever attempts to enter or to leave these ports, she shall be notified by the commander of one of the ships of the blockading squadron, who shall record in the ship’s journal the fact, and the date of the notification.”

Hayti receives, and holds, her customs, her legislation, and her jurisprudence from France. The treaty of the 3d of November, 1861, has established a communion of international principles between her and the United States. How, then, can she escape from the obligation of adopting the rules and principles which obtain in both countries?

A viva voce announcement of the blockade must assuredly be received with much more favor than signals made at a great distance which, possibly, may not be remarked, and the meaning of which may need interpretation, For this reason, the conseil d’état of France, on the 17th of July, 1843, pronouncing as a prize court (tribunal des prises) declared null and void the capture of the Joséphine by the Eclair, a ship of the blockading squadron, because, in that particular case, although it had been shown in the report prepared by the commander of the Eclair that notification of the blockade had been given verbally to the captain, on the day preceding the capture, it was not shown at the investigation that the captain of the Joséphine had understood the notification, nor that the commander of the Eclair had supplemented this deficiency by registering the notification on the muster-roll of the captured vessel.

Another observation will demonstrate the emptiness of this pretension of the judgment of the prize court of Port au Prince to make the signal of the Dessalines pass for the special notification of the blockade. What is to be obtained by these signals? At the most, they invite the passing vessel to stop and to await the cruiser who makes the signals. This is only in order that (if the neutral vessel obeys the summons and allows the cruiser to reach her) the officer of the blockading ship should have the occasion and the means of giving the notification required. The prize court of Port au Prince have, therefore, confounded two things absolutely distinct and different.

It is not to be thought that a special notification would have been an idle formality. The Haytian Republic could not have been able otherwise to know of the existence of the blockade. On this point Mr. John D. Metzger wished to have the fullest knowledge, and he applied to official sources, demanding to be informed if the decree of the 15th of October, proclaiming the blockade, had been published at Jacmel. A direct and formal reply would have been of great value to him, but the councilor of the interior studiously avoided giving him such a reply, stating simply, in his dispatch of the 30th October, that Jacmel being in a state of rebellion against the Government, no acknowledgment of the receipt of the decree had been made. It is easy however to fill up the gap which ministerial discretion has left open. The decree of the blockade was published in Le Moniteur of the 18th of October, 1888. This journal not having been sent to the provinces, except by the ordinary courier on Saturday, it was therefore on the 20th that it left the capital. Now the Haytian Republic spent the 17th at Miragoâne, the 18th at Cayes, the 19th at Jacmel. She had been in advance of the decree in each of the cities which she visited before returning to St.’ Marc; therefore she was necessarily ignorant of the blockade. From that time she was in the position contemplated by article 18 of the treaty of 1864 between the United States and the Republic of Hayti, to wit

“Art. 18. As it frequently happens that vessels leaving for a port or a place belonging to the enemy, without knowing that these points are besieged, blockaded, or invested, it is here agreed that every vessel that shall be found in such case shall be sent away from these ports or places, but shall not be detained, unless after notice of such blockade or investment, the same vessel should attempt again to enter.”

Thus, supposing that the Haytian Republic had been reached by the Dessalines, she could not have been legally captured in attempting to enter the port of St. Marc; she could not have been even momentarily stopped, except for the purpose of giving notification of the blockade. It is therefore conclusive, that the Haytian Republic, who had entered into the harbor before the Dessalines bad arrived to forbid access to it, and above all, before she had received a special notification of the blockade, has not violated the obligations of neutrality; on the contrary, she has exercised and enjoyed the right of free commerce.

But it was not in attempting to enter a port declared to be blockaded that the Haytian Republic was captured; it was in leaving the port. If (as we think we have demonstrated) this vessel has exercised her right in entering this port, because the blockade had not been notified to her (a fact which is clear, since she had never been in a position to know it), the Haytian Republic, as regards her leaving the port, was, to all intents and purposes, in the same situation as a vessel on station. In such a case, before the capture can be valid, it is necessary that the commander of the blockading forces should previously signify the decree of the blockade to the authorities of the place whose communications he has been commissioned to intercept.

“This is,” says Calvo, “a preliminary rigorously exacted, and the omission of which nullifies absolutely the capture of vessels leaving a port.” (See Calvo, vol. 4, § 2580.)

A delay must be accorded for the free retirement or exit of neutral vessels. Such was the principle followed by Denmark in 1848, by England and France during the war in the East, by France during her struggle with Germany in 1870, and by the United States of America in 1861.

In our particular case no notification had been made to the authorities of St. Marc. They had not been able from that time to notify the vessels lying in the port, and the Haytian Republic, who had no knowledge of the blockade when she entered that port, was equally ignorant of it when she attempted to leave.

There are three versions of the capture:

(1) According to the copy of the report of Mr. Gaillard, the commander of the Dessalines, which has been delivered to Mr. John D. Metzger by the prize court, this officer, speaking of the Sunday morning when the Haytian Republic weighed anchor to leave the bay, said: “I sounded the whistle to her; I ran down towards her; seeing that she would not stop I fired a cannon, and it was not until then that she changed her course.”

(2) By the report published in “Le Progres,” and which Mr. Gaillard has not disavowed, the commander said: “We blew the whistle and fired a cannon, so as to oblige her to surrender at our demand. At last the Haytian Republic, for it was certainly she, stopped.”

(3) Mr. Solon Ménos, who repeats a recital of the same commander, says in his deposition:^* “The Dessalines cruised before the blockaded port to arrest the refractory boat on ner return; the next day, very early in the morning, the capture took place,”

By this deposition, one does not know what were really the circumstances which accompanied the capture. But whether one or the other text of this report is accepted, the commander of the Dessalines recognizes that after the blowing of the whistle and

the report of the cannon, the Haytian Republic, who had good reason to flee on account of the character of her passengers, stopped, however, or what is tantamount to that, changed her course doubtlessly so as to meet the Dessalines; that, in a word, she did not attempt to escape from the Dessalines. Can it be said, then, that there was an attempt to violate the blockade? Assuredly not, and this conclusion has the respectable authority of Calvo in favor of it. He says: “The fact of not stopping immediately after the signals and invitation have been made is not to be regarded as an attempt to violate the blockade.” (See Calvo, vol. 4, § 2626 in fine.)

VII.

The blockade must be real and effective; otherwise neutral vessels are not obliged to respect it. The Haytian authorities seem to persuade themselves, by dint of repeating that the blockade of St. Marc is effective, that finally the use of the word will dispense them from the necessity of having that which it designates. But the effectiveness of a blockade is something besides the proclamation and notification of any kind which may be made concerning it. According to the maritime convention of 1801 between Great Britain and Russia, which convention is the basis of the modern doctrine, no port is accounted as blockaded except one into which, owing to the measures taken by the powers attacking with ships, either stationed or sufficiently near, there is evident danger in entering. Civilized powers agree in recognizing the principle that a blockade, to be effective, must be maintained by a force really sufficient to prevent access to the hostile coast.

The provisional government, by their decree of the 15th. October, 1888, have placed simultaneously in a state of blockade the ports of St. Marc, Gonaïves, and Cape Hayti. To perform the service of the blockade they had only two war ships, the Dessalines and the Toussaint L’Ouverture, not having yet armed with cannon the merchant vessels which they have since employed. How can they pretend, without shamelessly inviting ridicule, that two ships were a force sufficient to prevent access to three different ports at the same time, especially when, as in the case under consideration, these three ports are situated at a great distance from each other and when the configuration of the coast to be guarded prevents these ports from being in view at the same time? In this way the Dessalines, not being obliged to remain fixed (on station), was not guarding the port of St. Marc when the Haytian Republic presented herself. According to the “report,” she was at the point of the “Grande Salines,” or “Grande Pierre Baie,” a distance of 6 miles from St. Marc; that is to say, very far beyond the “Table à Diable,” on the route to Gonaïves. How, then, was the entrance of the port of St. Marc intercepted by her? It is necessary for the blockading ships either to station themselves before the port or at least to be sufficiently near to it. But the Dessalines had placed between St. Marc and herself a promontory (the “Table à Diable”) from which she was distant 6 miles. It was from this great distance that she started when she saw on the horizon the uncertain smoke of the Haytian Republic.

There must be evident danger in entering. But the Dessalines, at a distance of 6 miles north of the bay, with her slowness of motion and her cannon of feeble projectile powers, did not constitute an “evident danger” for a vessel which was entering under the southern point or “Point of St. Marc.” From one point to the other there is a distance of 10 miles or 18,520 meters. Let us suppose that, in returning, the war ship had had time to arrive at the “Table a Diable;” even then it is impossible that her cannon, which threw 3,500 meters, should have menaced efficaciously, or in an evident manner the vessel entering at a distance of about 18,000 meters, under the opposite promontory. Thus Commander Gaillard, who, with a suspicious complacency, curtails the distance, has not been able to prevent himself from admitting, at least, that his sixth and last cannon-ball, which could not reach his object any more than the others, had fallen a quarter of a mile short of the Haytian Republic.

Neither is it held that the capture effected on the 21st October furnishes an argument in favor of the effectiveness of the blockade. Not at all. According to the practice of maritime nations, attested to by Calvo, the accidental capture of a neutral vessel by a cruiser does not suffice to render a blockade effective. (See Calvo, vol. 4, § 2578.)

It is, therefore, nothing but an empty semblance of a blockade which they had placed before the port of St. Marc.

One last observation. They have severely blamed Captain Compton for having refused to reply to questions customary on similar occasions and to show his papers, and they have quoted in this connection the case of the Perle, a French corvette, who, for the same reason, captured two American brigs in the month of March, 1839; but they have omitted to declare the conclusion of that affair, which is that, on the demand of the commander of the United States squadron, the French admiral ordered the surrender of the captured vessels to their owners. (Calvo, vol. 4. § 2683.)

VIII.

Political passions have the disastrous effect of obscuring the soundest intellects and of untuning the most upright consciences. To this must be attributed the unjustifiable conviction and judgment pronounced against the Haytian Republic, her captain, and owners. But Mr. John D. Metzger, who can not be expected to place the great interests which he represents at, the discretion of his opponents, protests against the conviction and judgment, because it is the work of a jurisdiction illegally instituted; because this jurisdiction has disregarded his indisputable right to a lawful defense; because under the circumstances of the case no cause of action exists for the transportation of contraband of war, of soldiers, and adherents of the insurrectionists; because the blockade of St. Marc had not been notified, either to the captain of the Haytian Republic or to the authorities of the place said to be blockaded; because, in fine, this blockade was not effective.

John D. Metzger,
Agent Hayti Mail Steam-ship Line.

Port au Prince, November 12, 1888.

1. It will be seen that these powers or functions are constitutionally distinct both in to their origin and as to their nature.
2. This is a small cannon, which was used for firing salutes on board, and which was absolutely useless for purposes of war.
3. Nothing can more clearly show the character of Haytian justice than this deposition. Mr. Solon Ménos, who was all the while in Port au Prince, was called upon to testify, and was permitted to testify to au occurrence which took place at St. Marc whilst he was in Port au Prince. What right had this man to testify to what he did not know? This alone proves the predetermination of the prize court to convict the Haytian Republic whether she was guilty or not.