No. 709.
Mr. Bayard to Mr. Preston.
Washington, November 28, 1888.
Sir: I have the honor to acknowledge the receipt of your respective communications of the 14th and 19th instant, in which you inclose copies of certain papers relating to the condemnation of the Haytian Republic, an American vessel, at Port au Prince, and the imprisonment of certain of her officers.
On the 26th instant the Department received a full report upon the case by the captain of the United States steamer Boston, who had just returned from Port au Prince to the port of New York.
Upon examination of the record and proceedings in the case, the Department is led to the conclusion that the seizure and detention of the vessel and the imprisonment of her officers have, from the beginning, been irregular and wrongful; that she should, without delay, be restored to her American owners, and her officers released from all detention; and that adequate compensation should be made to them and to the owners of the vessel for the loss and injuries they have suffered by reason of the proceedings in question.
It is unnecessary to discuss the charge of attempting to run a blockade, upon which allegation it is understood that the seizure of the vessel was originally made. Whether any valid blockade did or did not exist, it is clear that the Haytian Republic had and could have had no notice of it.
The Haytian Republic sailed from New York October 4, 1888, with cargo and mails for Turk’s Island, Gape Haytien, Port de Paix, Miragoâne, Aux Cayes, and Jacmel, and with mails for Gonaïves, St. Marc, and Port au Prince. Arriving at Gonaïves on the 16th of October, she sailed on the same day for St. Marc, and after a brief stop at that port proceeded to Miragoâne, where she arrived on the 17th, discharged cargo, and sailed for Aux Cayes, where she arrived on the following day, the 18th. Thence she proceeded to Jacmel, where she arrived on the 19th, discharged cargo, and sailed on the same day for St. Marc.
The decree of blockade of the ports of Cape Haytien, Gonaïves, and St. Marc was resolved upon by the provisional government of Légitime on the 15th of October, and made known to the foreign representatives in Port au Prince on the following day, but was not published in the official paper, Le Moniteur, until the 18th of October.
The means of communication between Port au Prmce, Miragoâne, Aux Cayes, and Jacmel exclude the supposition that news of the proposed blockade could have reached Miragoâne by October 17, Aux Cayes by October 18, or Jacmel by the 19th, and consequently the master of the Haytian Republic could not have been aware of any proclamation of blockade when, on October 19, he sailed from Jacmel for St. Marc. Indeed, it is known that no notice of blockade was sent to Jacmel at that time, as that city and district were not in sympathy with the provisional government of General Légitime at Port au Prince. Therefore even the usual and ordinary means of communication between Port au Prince and the ports proposed to be blockaded had been interrupted.
When the Haytian Republic was entering the port of St. Marc from the southward, late in the afternoon of the 20th of October, a steamer was sighted to the northward of the Bay of St. Marc, and it was afterwards observed that she was firing guns, but for what purpose was tin known.
[Page 1002]Upon arriving in the port of St. Marc, the master of the Haytian Republic was informed by a pilot that the steamer which had been discerned outside was the Haytian man-of-war Dessalines, and that she was blockading the port. This was the first intimation from any source the captain or any officer of the Haytian Republic had of any blockade.
The Haytian Republic left St. Marc on the next morning, the 21st of October, and was captured outside by the Dessalines. It may be here observed that the commander of the Dessalines has made two reports of the capture—one submitted to the prize commission at Port au Prince, and the other published in Le Progrés of October 26, 1888—which are not entirely consistent. To this discrepancy, however, I do not desire further to advert.
It appears that after the Haytian Republic had entered the harbor of St. Marc, on October 20, and there received her first intimation of any blockade, she made no effort whatever to escape, although she could easily under cover of night or with her superior speed at any time have gotten away had her master seen fit to do so or had he had any ground for supposing such action desirable.
When she was stopped on the morning of the 21st of October, when coming out of the Bay of St. Marc, by the Dessalines, the commander of the latter sent a boat-load of armed men alongside and ordered her master to repair on board of the Dessalines with his papers.
No officer was sent on board of the Haytian Republic to examine her papers; and neither the papers, the ship, nor the cargo were examined. Mr. William Smith, the first officer of the Haytian Republic, was taken on board of the Dessalines with the passenger list and a statement as to the voyage of the vessel. He was detained on board of the Dessalines as a prisoner, and upon arrival at Port an Prince was sent to the office of the captain of the port, where he was held as a prisoner until set at liberty at the request of the United States minister.
The irregularity of these proceedings is manifestly shown. The treaty between the United States and Hayti of November 3, 1864, contains the following provisions:
Article XVIII. And whereas it frequently happens that vessels sail for a port or place belonging to an enemy without knowing that the same is either besieged, blockaded, or invested, it is hereby agreed by the high contracting parties that every vessel so circumstanced may be turned away from such port or place, but she shall not be detained, nor any part of her cargo, if not contraband, be confiscated, unless, after notice of such blockade or investment, she shall again attempt to enter; but she shall be permitted to go to any other port or place she shall think proper, provided the same be not blockaded, besieged, or invested. Nor shall any vessel of either of the parties that may have entered into such port or place before the same was actually besieged, blockaded, or invested by the other, be restrained from quitting Such place with her cargo, nor, if found therein after the reduction and surrender of such place, shall such vessel or her cargo be liable to confiscation, but they shall be restored to the owners thereof.
The recital of these provisions in connection with the facts above stated renders comment unnecessary.
I next refer to Article XXIY of the same treaty, as follows:
In order to prevent all kinds of disorder in the visiting and examination of the vessels and cargoes of both the contracting parties on the high seas, it is hereby agreed that whenever a ship of war shall meet with a neutral of the other contracting party, the first shall remain at a convenient distance, and may send its boats, with two or three men only, in order to execute the examination of the papers concerning the ownership and cargo of the vessel, without causing the least extortion, violence, or ill-treatment, for which the commanders of the said armed ships shall be responsible with their persons and property; for which purpose the commanders of all private armed vessels shall, before receiving their commissions, give sufficient security to answer for all damages they may commit; and it is hereby agreed and understood that the neutral party shall in no case be required to go on board the examining vessel for the purpose of exhibiting his papers, or for any other purpose whatever.
And Article XXVII, which also provides:
That proper care may be taken of the vessel and cargo and embezzlement prevented in time of war, it is hereby agreed that it shall not be lawful to remove the master, commander, or supercargo of any captured vessel from on hoard thereof daring the time the vessel may be at sea after her capture, or pending the proceedings against her or her cargo, or anything relating thereto; and in all cases where a vessel of the citizens of either party shall be captured or seized and held for adjudication her officers, passengers, and crew shall be hospitably treated. They shall not be imprisoned or deprived of any part of their wearing apparel, nor of the possession and use of their money, not exceeding for the captain, supercargo, mate, and passengers $500 each, and for the sailors $100.
From the above stipulations it is manifest that so far as the proceedings against the Haytian Republic rest upon a charge of attempting to run a blockade, they were in clear violation of the express terms of the treaty, and wholly improper and inadmissible.
Nor can the tribunal by which the charges against the Haytian Republic and her officers were examined be recognized by this Government as competent for that purpose. By the twenty-eighth article of the treaty above referred to it is provided that in matters of prize “in all cases the established courts for prize causes, in the country to which the prizes may be conducted, shall alone take cognizance of them.”
The tribunal before which the Haytian Republic and her officers were brought was hastily improvised for the occasion and consisted of two commissioners specially appointed on the 21st of October, 1888, to examine the case of the Haytian Republic. It was in no sense “an established court for prize causes,” as stipulated in the treaty, but had for its special and only authority the order of the provisional president, Légitime. Its proceedings had scarcely a feature of formality and regularity. The witnesses before it, whose statements were generally founded on hearsay and often palpably inconsistent with established facts, were not even sworn, and no opportunity was given for defense, although the reasonable delay of four days, two of which were holidays, was requested for that purpose and refused.
Such proceedings appear only the more indefensible when it is considered that the provisional president, Légitime, and his minister for foreign affairs now set up a violation of the municipal law of Hayti as the ground of the condemnation of the vessel and the imprisonment of her officers. The professed character of the commission was that of a “prize court,” and it is so styled in your notes, to which I have the honor now to reply. The trial of an alleged violation of Haytian municipal law was thus wholly outside its competence. As a tribunal for the examination of such a charge its proceedings were thus not only confessedly without jurisdiction, but destitute of regularity, and also palpably violative of the provisions of the sixth article of the treaty of 1864, which guaranties to citizens of the United States access to the ordinary courts of justice, and full opportunity to defend their rights and interests before them.
A prize court is not a court of criminal jurisdiction. “The condemnation of a vessel and cargo” (Bates, Attorney-General, 10 Opin. Atty. Gen’l, 453) “in a prize court is not a criminal sentence. No person is charged with an offense; and so no person is in condition to be relieved and reinstated by a pardon.”
To such proceedings as those of the special Haytian commission above described, it is the opinion of the Department that the doctrines set forth in your note of the 19th instant, in relation to appeals from the decisions of prize tribunals, have no application. Such rules can be held to apply only to the procedure of regularly established courts [Page 1004] acting within the limits of their competency, and from whose decisions appeals are provided for. It can not be admitted that the decrees of an extraordinary commission, which assumes to act in disregard of treaties and the law of nations, must stand unquestioned as a subject for judicial review, or that the persons who have been deprived of their property or of their personal freedom by such decrees are bound to seek judicial relief. Those doctrines apply only to the regular and formal proceedings of the established judicial courts of a country, acting according to recognized principles of justice. In other cases relief and redress may be obtained by direct appeal to the Government of the individuals whose rights of person and property have been invaded.
Another feature of the case of the Haytian Republic, to which I have not adverted because other irregularities rendered it superfluous, is that of the place of her seizure. From the best information which the Department is able to obtain it is believed that the capture of the vessel took place about 6 miles from the nearest point of land. It is unnecessary to comment further than to say that if the capture was made outside the territorial waters of Hayti the inadmissibility of a trial for an offense against the municipal law of Hayti would be obvious, aside from any question as to the character of the tribunal before which the case was brought.
In the confusion which has marked the condition of affairs in the Republic of Hayti within the last few weeks one President, long and formally recognized by the United States, has been forcibly overthrown and, together with his ministers, driven from the country; a provisional government was then formed under the presidency of Boisrond Canal, of which General Thélémaque, chief of the army of the revolution, and a promising candidate for the presidency, and Senator Légitime, another candidate, were both members.
Before a regular election of President could be held General Thélémaque lost his life and. Senator Légitime was elected President by the votes of certain persons, only to find himself confronted by a revolutionary committee, who, at last accounts, held possession of a majority of the ports and perhaps the larger part of the territory of the Republic. In the midst of such bloody contentions and the various factional attempts to obtain power it is unjust and unreasonable that merchant vessels of the United States should be made the victims of such lawless proceedings.
Local supremacy in Hayti thus shifts from week to week, and from hand to hand, so rapidly and unexpectedly that it would be wholly unreasonable and impossible to subject the merchant marine and citizens of other countries, who find themselves so surrounded by factions contending violently for mastery, to extreme penalties, because of their alleged favor to either side, or because of their necessary and enforced acquiescence in the demands of factions locally and temporarily in power.
The rights of person and property of American citizens engaged in business in Hayti can not be permitted to become the foot-ball of contesting factions and their evanescent authority; and the protecting arm of the United States will be interposed for their security. By this it is not intended to include cases of deliberate intermeddling in local conflicts, but merely to rescue our citizens, who may be caught in the eddies of local sanguinary émeutes.
The defects and misfortunes of the Republic of Hayti must not be visited upon the citizens of a friendly country, who have contributed in no way to the unhappy condition of affairs with which they find themselves unexpectedly confronted.
[Page 1005]The voyage of the Haytian Republic was commenced on October 4 from the United States, with peaceful and lawful intent, and with no knowledge of Haytian disorders or desire to mingle in Haytian disputes.
On her voyage from Port de Paix to Gonaïves, on October 15–16; from Gonaïves to Miragoâne, on October 16–17; and from the latter port to Aux Cayes, on October 17–18, it is true that she transported as passengers persons variously armed, and, as is supposed, in sympathy with those in possession of the districts in which the ports above named are situated. In such transportation she met with no interference or protest, and merely acted as a common carrier of passengers whom she found awaiting transportation in the ports at which she traded. Such action can not be regarded as constituting complicity in Haytian disorders; and, at the time that the vessel was seized by the Dessalines in the service of Provisional President Légitime, at Port au Prince, the persons whom she had thus carried had been left at their ports of destination and she was proceeding on her voyage.
The Department has just received dispatches from the United States consul at Cape Haytien, one of the ports included in the proclamation of blockade, to the effect that foreign commerce is open at that port, and that merchant vessels enter and depart with cargoes without restriction.
In view therefore of what I have herein fully laid before you I desire to express, under the direction of the President, his confident expectation that, without delay, the steamer Haytian Republic will be released by the authorities at Port au Prince and returned to the custody of her officers and crew, and that investigation may be at once commenced to ascertain the injuries inflicted upon the owners of the vessel, and also upon the captain, officers, and crew in the course of this illegal and most regrettable interference with their rights.
Accept, Mr. Minister, the renewed assurance of my highest consideration.