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. 713.
Award of the referee in the matter of the claim of Charles Adrian Van Bokkelen, a citizen of the United States, against the Republic of Hayti.

[undated].

In pursuance of the protocol, dated May 24, 1888, between Hon. Thos. F. Bayard, Secretary of State of the United States, and the Hon. Stephen Preston, envoy extraordinary and minister plenipotentiary of the Republic of Hayti, representing their respective Governments, after having made a declaration that I would impartially and carefully examine and decide the case submitted to me, in good faith, to the best of my judgment, and conformably to the principles of law applicable thereto, I have investigated the claim of Charles Adrian Van Bokkelen, a citizen of the United States, against the Republic of Hayti, and I now make the following statement and award:

claim of charles adrian van bokkelen.

This claim grows out of the imprisonment, during the years 1884and 1885, at Port au Prince, of Charles Adrian Van Bokkelen, a citizen of the United States, by the authorities of the Republic of Hayti. The imprisonment continued for a period of nearly fifteen (15) months; and the claim made on behalf of Van Bokkelen is in the form of a demand upon Hayti for pecuniary indemnity in the sum of one hundred and thirteen thousand six hundred dollars ($113,600).

Although the essential facts are within a small compass, and the question submitted for decision to the referee is single and explicit,^* the case has been the subject of a multiplicity of proceedings and pleadings, judicial, executive,’ and diplomatic; and has given rise to voluminous correspondence and elaborate argumentation on the part of the two Governments.

In the disposition of this case I shall confine myself as closely as may be practicable to a presentation of the essential matters, and to the determination of the single and explicit issue suggested by the terms of the protocol. It is proper, however, to state here, that at an early stage of the submission of this case to me as referee, a demurrer was interposed by the defendant Government, and an elaborate brief was presented in support of said demurrer. After consideration of this brief, I notified counsel for the defendant Government that there was no provision under the submission for special pleading, and that the protocol specified and indicated in express terms the subject-matter and the question submitted for determination. As a matter of fact, the argument which was entitled, “Brief on behalf of defendant Government in support of demurrer,” is a full and exhaustive exposition of the material points relied on by the defense, and covers fifty five (55) type-written folios.

In addition, the limitation of time within which the referee was required to render his decision precludes the idea of the interposition of special pleading.

And further as to the propriety of a demurrer, general or special, under this arbitration it is to be said that a State, like an individual, accused of having inflicted wrong upon another, may shape its defense against the charge with reference to the facts, or to the law.^* Under the terms of the protocol, as well as from the correspondence heretofore passed between the contracting parties, it seems clear that there is not now and never was any denial by the defendant Government of the substantive facts which give rise to this claim.

Subsequently complainant Government and the counsel for the respective Governments were notified that I desired briefs on the subject of the measure of damages. These additional briefs were duly filed and have been considered.

The defense set up by the defendant Government is rested upon a collision between the treaty and certain articles in the municipal codes of Hayti. And this issue may only be determined by reference to the treaty stipulations and to the provisions contained in the municipal statutes.

statement of facts.

Charles Adrian Van Bokkelen was a citizen of the United States, who, prior to the year 1872, resided in Brooklyn, N. Y. In that or the following year he went to Hayti and established himself in business at Port au Prince. In 1880 he married a Haytian lady, the widow of General P. Lorquet, an owner of real estate in Hayti in her own right. There were two children of this marriage, who, with their mother, reside at Port au Prince.

On the 15th of February, 1883, having sustained severe losses in his business, and a judgment against him having been affirmed in the court of cassation, which he was unable to pay, and under which he was liable to be imprisoned for one year, he filed a schedule of his assets and liabilities in the civil court of Port au Prince, preparatory to applying for the benefit of judicial assignment, under which, in Hayti, an honest but unfortunate debtor is allowed to surrender all his property for the benefit of his creditors, and is entitled to be discharged from prison, if he has been arrested, and to be free from arrest thereafter on account of his existing indebtedness. At that time, in Hayti, imprisonment for mere debt had not been abolished.

Three other judgments were subsequently recovered against Van Bokkelen, two in favor of the Bank of Hayti and one in favor of J. Archin, under each of which he was liable to three years’ imprisonment in default of payment, making ten years in all. A fifth judgment was rendered against him in favor of St. Aude, jr., which does not seem to have decreed any imprisonment. These judgments are enumerated in Mr. Langston’s dispatch of January 14, 1885, to Mr. Frelinghuysen, and it is there stated that the terms of imprisonment fixed in three of the judgments are twice as long as would have been imposed in the case of a Haytian.

After the filing of Van Bokkelen’s schedule, which was duly recorded by the clerk of the civil court in Port au Prince, on the 15th of February, 1883, the proceedings seem to have been postponed by notices of writs until the following year.

On or about the 5th of March, 1884, Van Bokkelen was arrested on the judgment of Toeplitz & Co., and confined in the common jail of Port au Prince. Although imprisonment for debts, irrespective of fraud in contracting them or evading their payment, was then lawful in Hayti, there seems to have been no separate prison for debtors. The character of the common jail, and of the military hospital in which Van Bokkelen was confined, and the state of his health when he was incarcerated, will be noticed hereafter in connection with the question of damages.

Van Bokkelen protested against his arrest as illegal, on the ground that by an order of the Haytian authorities, published in the official journal, “it was made obligatory that before a foreigner could be placed in jail the complaint should first be submitted to the attorney for the Government for his examination and approval, and (should be) signed with his signature, with seal attached.” On the 18th of the same month it was judicially determined that Van Bokkelen’s arrest was it legal. But before he was discharged other creditors, availing themselves of a provision of Haytian law under which, when a debtor is imprisoned, they can keep him in jail by “recommending” him, recommended him accordingly, and the jailor refused to discharge him.

It is to be noted that these creditors took advantage of Van Bokkelen’s illegal imprisonment to keep him from getting out of jail by a method which would not have enabled them to put him in.

Van Bokkelen thereupon, through his counsel, applied to the civil court of Port au Prince for the benefit of judicial assignment.

He had been advised that under the treaty of 1864 between the United States and Hayti he was entitled to the benefit of iudiciai assignment the same as if he were a citizen of that country.

In the proceedings upon Van Bokkelen’s petition to the civil court of Port au Prince for the benefit of judicial assignment, twelve of his creditors appeared, and all but two assented.

These opposing creditors raised various objections, but insisted mostly on article 794 of the Code of Civil Procedure and article 569 of the Code of Commerce, which expressly exclude foreigners (les étrangers) from the benefit of this provision of Haytian law.

All the objections of the opposing creditors were traversed by the petitioner. His counsel argued that the schedule of his assets and liabilities was sufficient; that his misfortunes and good faith were manifest; that the treaty of 1864 between Hayti and the United States repealed article 794 of the Code of Civil Procedure and article 569 of the Code of Commerce so far as the disability attaching to the petitioner in his character of American citizen or foreigner was concerned. This he argued at length, and also claimed that inasmuch as the petitioner had established himself at Port au Prince in business and married a Haytian wife, who owned real property in the city and had borne him children, having thus fixed his home as well as his commercial interests in Hayti with the knowledge of the Government, a just construction of the term “les Strangers” required that he should not be treated as a foreigner or a stranger, but as a domiciled merchant entitled to all civil rights and privileges as distinguished from those that are political; and in support of the proposition that the exercise of civil rights is independent of the exercise of political rights, and that “the capacity of a citizen resides in the combination of civil and political rights,” he cited article 11 of the Civil Code of Hayti.

The opposing creditors (Toeplitz & Co.) rejoined that they had no knowledge of the treaty and had not been served with a copy; and therefore moved for information in that regard at the cost of the petitioner. Petitioner’s counsel replied that the treaty was not a document, but a law of which no one was supposed to be ignorant.

It appears also that the Government of Hayti, as well as all the parties to these proceedings, was represented by counsel and heard by the court.

The first question that the court decided was “whether the petitioner should be condemned to furnish to Toeplitz & Co. information regarding the treaty concluded between Hayti and the United States of America, and whether such information should likewise be furnished to Louis Nadal.” That question the court decided in favor of Van Bokkelen, as follows:

Whereas a treaty, concluded hetween Hayti and the United States of America, November 3, 1864, sanctioned by the Senate, and promulgated by the executive branch of the Government, is a law of the State;

Whereas article 75 of the Code of Civil Procedure renders it obligatory upon the petitioner to furnish a copy of the documents or of that part thereof upon which the petition is based; but it does not provide that a copy of the law or of the provision of the law on which the petition is based shall be furnished;

Whereas, thus, Mr. C. A. Van Bokkelen is not obliged to furnish information of the treaty to Louis Nadal, and can not be condemned to furnish such information to Toeplitz & Co., who are under obligations, just as C. A. Von Bokkelen is, to have knowledge of the law.

On the main question, involving the rights of Van Bokkelen under the treaty, and deciding upon the objection of his alienage based upon article 794 of the Code of Civil Procedure and article 569 of the Code of Commerce, interposed by L. Toeplitz & Co. and by Louis Nadal, the court, after having deliberated, denied Van Bokkelen’s application.

His application to make the judicial assignment having been denied by the civil court of Port au Prince, Van Bokkelen was kept in jail. He appealed to the court of cassation—the court of last resort—which rendered its decision affirming the judgment of the civil court on the 26th of February, 1885, almost a year from the time when Van Bokkelen was first imprisoned. It seems that pending his appeal the time within which further objections could be made by his creditors to his petition expired on the 21st of October, 1884, and that no one, not even the parties upon whose application he had been illegally arrested the previous March, made any opposition. This fact is stated in a letter from Van Bokkelen’s father to Mr. Frelinghuysen, who was then Secretary of State, dated November 15, 1884, a copy of which was transmitted by Mr. Davis, Acting Secretary, to Mr. Langston, United States minister at Port au Prince, November 19, 1884.

The Secretary of State of the United States was informed of this decision on the 21st of March, 1885, and on the 28th of the same month he sent a dispatch to the United States minister at Port au Prince, in which, after reviewing the facts and the law, he claimed that there had been a denial of justice in Van Bokkelen’s case, and that he should be released from jail forthwith, in the following terms:

The release of Mr. Van Bokkelen is now asked on independent grounds. It is maintained, first, that continuous imprisonment for debt, when there is no criminal offense imputed, is contrary to what are now generally recognized principles of international law. It is maintained, secondly, that the imprisonment of Mr. Van Bokkelen is a contravention of articles 6 and 9 of the treaty of 1865 between the United States and the Republic of Hayti.

The Haytian Government has a clear and ample opportunity to relieve this case from all difficulty by recognizing the error of their courts in supposing that the privilege of release of an imprisoned debtor would be denied to a Haytian citizen by the United States courts upon making assignment of his property for the benefit of his creditors.

You are now instructed to earnestly press the views of this Government, as outlined in this instruction, on the early attention of the Government of Hayti by leaving a copy thereof with the minister of foreign affairs.

The response of the Government of Hayti should be promptly communicated to this Department.

On the 17th of April, 1885, Mr. Langston sent a copy of this dispatch to the Haytian Government and urged the prisoner’s immediate release, inviting attention also to his “feeble and failing health,” The reply of the Haytian Government, twelve days later, was an elaborate defense of Van Bokkelen’s imprisonment—solely, however, upon the ground that he was an alien.

Meanwhile, and shortly after the decision of the court of cassation, the prisoner, who, at the request of the United States minister, had been removed to the military hospital on account of his infirm condition, was sent back again to the common jail. On the 15th of May the United States minister sent another note to the Haytian Government, insisting on Van Bokkelen’s immediate release, and on the afternoon of the 27th of that month Van Bokkelen was conducted to the United States legation by an attorney of the Haytian Government, “on its order, as stated, and thus given his release and liberty.” On the 5th of the following June, Mr. Langston received a note from the Haytian secretary of state for foreign affairs, maintaining the position which had been held throughout by the Haytian Government, and closing as follows:

I understand that Mr. Van Bokkelen has been put at, liberty. This result, happy for him, is due, doubtless, to some arrangement made with his creditors. This, besides, to which I will not address myself further, as it is not proper, has itself, as you will understand, been accomplished without interference of the executive power; it comes to pass without saying that it annuls in no wise the considerations which this department has plead relative to the case of Van Bokkelen.

Pending Van Bokkelen’s appeal to the court of aassation, the Department of State, upon representations of the United States minister at Port au Prince in regard to the adjudged illegality of the arrest in the first instance, and the prisoner’s unquestionable right under the treaty to make the judicial cession and obtain his release, had instructed the minister to use every proper effort with the Haytian Government to that end.

Mr. Van Bokkelen sailed for the United States shortly after his release, and on his arrival made a statement of his case to the Secretary of State and an appeal for his good offices in collecting indemnity from the Haytian Government. In response, Mr. Bayard addressed a note to the United States minister at Port au Prince, dated October 2, 1885, instructing him as follows:

Mr. Bayard to Mr. Thompson.

Department of State,
Washington, October 2, 1885.

Sir: I herewith inclose a copy of a letter from Mr. C. A. Van Bokkelen, of the 19th ultimo, in reference to his illegal imprisonment at Port au Prince and his claim for damages in consequence thereof.

In view of Mr. Van Bokkelen’s present statement of facts and those already before your legation in regard to his case, I desire that you will call the attention of the Government of Hayti to his claim. There can be no doubt that Mr. Van Bokfielen was wrongfully imprisoned by the Haytian authorities, and that great damage ac-accrued to him thereby.

Under these circumstances, therefore, you are directed to ask and to press for the redress claimed by Mr. Van Bokkelen, or, if the amount to be paid can not be immediately agreed upon, for a reference of the question to an arbitrator, so that the case may be disposed of without unnecessary delay.

I am, etc.,

T. F. Bayard.

To this Mr. Thompson, who had succeeded Mr. Langston, made the following reply:

Mr. Thompson to Mr. Bayard.

Legation of the United States,
Port au Prince Hayti, November 3, 1888.

Sir: I have to inform you of the death of Mr. Charles A. Van Bokkelen, who died on the 1st instant, at 2 o’clock in the afternoon, aged thirty-seven years. He was buried on the 2d instant, many Americans and foreigners following the remains to their last resting place. I attended the funeral, and it was a fact worthy of note that a sincere feeling of sadness at his death and sympathy for his wife and two small children seemed to pervade all present.

I had entered his claim against the Haytian Government to the sum of $113,000, some time before his death, and will continue to press the same, as advised by the Department.

I am, etc.,

John E. W. Thompson.

Subsequent negotiations between the two Governments have resulted in an agreement to submit the claim to arbitration.

the questions to be arbitrated.

Two questions arise on the facts:

1. Was Van Bokkelen entitled, by the terms of the treaty between the Republic of Hayti and the United States, concluded November 3, 1864, to be discharged from prison on the same terms as a citizen of Hayti imprisoned for the same cause?

2. If there has been a violation by Hayti of the treaty rights of Van Bokkelen, what should Hayti pay to the United States, by way of damages, for the benefit of the representatives of the deceased?

The first question submitted by the two Governments for the decision of the referee is contained in the first article of the protocol of May 24, 1888, and is in the following words:

It having been claimed on the part of the United States that the imprisonment of Charles Adrian Van Bokkelen, a citizen of the United States, in Hayti, was in derogation of the rights to which he was entitled as a citizen of the United States under the treaties between the United States and Hayti, which the Government of the latter country denies, it is agreed that the questions raised in the correspondence between the two Governments in regard to the imprisonment of the said Van Bokkelen shall be referred to the decision of a person to be agreed upon, etc. (English text, article I).

Comme il a été soutenu de la part des Éats-Unis que l’emprisonnement de Charles Adrain Van Bokkelen, citoyen des États-Unis, en Haïti, a eu lieu en dérogation des droits qui lui appartenaient comme citoyen des États-Unis, d’aprés les traités entre les États-Unis et Haïti, ce qui niele Gouvernement du dernier État, il est convenu que les questions soulevées dans la correspondance entre les deux Gouvernements au sujet de l’emprisonnement du dit Van Bokkelen, seront référees à la décision d’une personne qui sera désignee, etc. (French text, article I).

It appears clearly from the language of article 1, that the subject-matter of this arbitration is the imprisonment in Hayti of Charles Adrian Van Bokkelen, a citizien of the United States, by the authorities of Hayti.

The contention of the complainant Government is that said imprisonment was in derogation of Van Bokkelen’s rights as a citizen of the United States under the treaties, and the answer of the defendant Government, while admitting the American citizenship and the fact of imprisonment of Van Bokkelen by the authorities of Hayti, denies that his imprisonment was in derogation of treaty rights. The contention of the complainant Government is based upon the language of articles 6 and 9 of the treaty between the United States and Hayti, concluded November 3, 1864.

The defendant Government does not deny the existence of the treaty or the guaranty of the rights and privileges which it solemnly announces. But the substance of the contention on the part of the defendant Government is that this right or privilege of free access to the tribunals of justice in Hayti defeated and nullified by the language and force of article 794, Civil Code of Procedure, and article 569, section 2, Code of Commerce. This contention has been sustained by the courts of first and last resort of Hayti, and has been proclaimed by the Executive of Hayti.^* Under this decision of the courts and executive of Hayti, Van Bokkelen was imprisoned in the common jail for nearly fifteen months.

Counsel on behalf of defendant Government submit various propositions of fact and law, from which they proceed to argue, which are founded upon or connected with the preliminary proceedings and pleadings in the courts of Hayti anterior to the judgment and decrees of the Haytian courts. These propositions refer to a multitude of defenses, nearly all of which were regularly interposed in defense in the court of the first instance and the court of last resort. But ail these several defenses have been withdrawn from the referee as a result of the action of the courts of Hayti, resting their decisions upon a single specific ground (which has been accepted by the contracting parties as the sole question now at issue), and which has been submitted to the decision of the referee. (Protocol, May 24, 1888.)

In this view of the case the referee is not at liberty to go behind the situation and enter upon an original inquiry as to whether the schedule (bilan) was regularly prepared and submitted; whether the circumstances of the case indicated fraud on Van Bokkelen’s part; whether a Haytian citizen, under similar circumstances, would have been discharged from imprisonment upon making a judicial assignment, etc. And if, at any time, I shall incidentally advert to such matters, it will be because it seemed unavoidable in the particular connection in which it occurs.

I proceed now to consider various contentions of counsel for the defendant Government.

The first brief, which is entitled a “brief on behalf of the defendant Government in support of demurrer,” insists:

1. That the language employed by Van Bokkelen in the proceedings before the tribunals at Port au Prince in April, 1884, in which he describes himself as an American citizen by birth, “residing at Port au Prince and domiciled at New York, United States of America,” “defines exactly the international status of elaimant.”^† In answer to this suggestion it may be admitted that the general proposition is substantially correct. It is taken to mean that Van Bokkelen was a citizen of the United States at the time of the occurrence out of which his claim against Hayti arose; but it is not understood that Van Bokkelen’s description of himself as “residing at Port au Prince and domiciled at New York,” has any other or further significance than to place him within the guaranties of protection of articles 6 and 9 of the treaty of November 3, 1864. It is to be observed, however, that “the international status of claimant” must be determined not by description, but by the facts of his case. As a matter of fact, the American citizenship of Van Bokkelen has never been questioned.

2. The contention of counsel for defendant Government that Van Bokkelen, during the years 1882 and 1883, was a merchant doing broker age business at Port au Prince may be conceded. And the recital of the details of the litigation in preliminary suits between Van Bokkelen and his various creditors may be accepted as correct without having any controlling influence upon the determination of the claim now submitted to the referee.^*

3. Counsel for the defendant Government argue “that only one ground of error was assigned and pressed” by Van Bokkelen on his appeal upon the judgment of the civil court to the court of cassation, while the judgment of the lower court disclosed the fact that at least twelve questions of law or fact were raised by the various pleadings of the parties.”^† And counsel say that Van Bokkelen “sought to reverse the said judgment upon one sole ground, namely, that article 794 of the Code of Civil Procedure and article 569 of the Code of Commerce excluded aliens from the operation of the laws regulating the cessio bonorum, and that said articles were contrary to articles 6 and 9 of the treaty between the United States and Hayti.”^‡

In answer to this suggestion, it seems only necessary to say that the court of first instance and the court of last resort based their final decision on the single ground stated by them.

It may be added that by the very language of the protocol, the single ground upon which Van Bokkelen “assigned and pressed” his appeal to the court of cassation has been adopted as the very question constituting the subject-matter of this arbitration. In this view the anterior and intermediary proceedings, whether by way of diplomatic intervention, or as the result of the various procedures of the local courts of Hayti, can not be held to have any controlling influence so far as the result of the present arbitration is concerned.

In a word, the protocol, which must be the guide and grant of jurisdiction tor the referee, crystallizes and formulates the substantial grounds of past discussion and controversy in a single, definite issue, and furnishes the rule of decision. The issue presented by the protocol is whether the acts of the authorities of Hayti in respect to Van Bokkelen, a citizen of the United States, were in derogation of his rights as such citizen, and the rule furnished for the decision of the question raised by the issue are the treaties between Hayti and the United States.^§

4. The contention of counsel for defendant Government is that “full faith and credit must be given to the tribunals of Port an Prince.”^ǁ

In answer to this point reference is made to what has just been said in reply to the first point. It may be added that the ground of complaint made by the complainant Government is that the judgment of the Haytian courts is in contravention of treaty stipulation, which the defendant Government denies. And to decide this very issue, the question has been, by consent of the contracting parties, referred to international arbitration.

The position of the defendant Government as to this point would, if admitted, preclude any examination or decision by the referee; and would result in making the referee simply the register or recorder of the acts and decrees of the local courts of Hayti. This may not be, for the reason that the Protocol imposes upon the referee the decision of the question raised in the correspondence^* and found in the record. For a rule and guide for his decision, he is referred to the treaties between Hayti and the United States. And for the interpretation of treaty language and intention, whenever controversy arises, reference must be had to the law of nations and to international jurisprudence. It is a general maxim, when it is a question of international controversy, that neither of the contracting parties has a right to interpret a treaty according to its own fancy.^†

5. Another argument of counsel for defendant Government is, that a citizen of Hayti, who intends to avail himself of the benefit of judicial assignment (cession de biens), must establish affirmatively that he has been unfortunate and that he has acted in good faith. This point is elaborated with much detail, both in the brief accompanying the note of the Haytian Minister,^‡ addressed to the Secretary of State of the United States, August 15, 1887, as well as in the brief now under consideration. The answer to this proposition and argument is that all this may be conceded without its having any influence upon the present controversy, and for this reason: The acts of the judicial tribunals and of the executive of Hayti, of which the complainant Government complains, are rested upon different and independent grounds. And these grounds are that Van Bokkelen was not permitted free access to the tribunals of Hayti on the same terms as citizens of Hayti. And as has been before stated, the referee is confined to the decision of the single specific question presented by the terms of the Protocol.

6. The further contention of counsel for the defendant Government^§ is that the jurisprudence of France, Belgium, and Hayti has constantly “maintained a distinction as between aliens and citizens, and have held that aliens have enjoyed natural rights, but that they were excluded from civil rights.” The answer to this proposition is, that if any such distinction between what are here styled “natural” rights and “civil” rights existed in Hayti, they were abolished in respect to citizens of the United States commorant in Hayti at the time of the occurrences herein complained of, by virtue of articles 6 and 9 of the Treaty of November 3, 1864. It is not, therefore, necessary to enter into any consideration as to the nice distinction between natural, civil, and political rights. These terms, however, have a well understood meaning in the law of nations and in modern international jurisprudence. In addition to protection to life, liberty, and property, the class which exercises political rights in a community participates in the governing power either by themselves or representatives. The class which enjoys civil rights is equally entitled to protection to life, liberty, and property; but the individuals composing it can not exercise political rights under any claim founded simply upon possession of civil rights. But the record and correspondence clearly show that the extent of Van Bokkelen’s claim was a demand, formally and regularly submitted to the tribunals and to the executive power of Hayti, that he might be admitted to the enjoyment of those strictly civil rights guarantied to him by the Treaty of November 3, 1864. And it would appear that even in Hayti the exercise of “civil” rights is independent of the exercise of “political” rights; and that the capacity of a citizen resides in the combination of civil and political rights.^*

7. The counsel for defendant Government submit that, “under the civil law nothing short of a clear, positive treaty stipulation can enable an alien to claim the exercise of civil rights.” All this may be admitted, and yet the concession would not avail the defendant Government upon the case under consideration, and for the following reasons:

(a) It is here a question of international and not civil law.

(b) And a “clear, positive treaty stipulation” does by express language enable an alien, if he be a citizen of the United States and within the jurisdiction of Hayti, to claim the exercise of civil rights,^†

8. Counsel for defendant Government make a point that at one time Van Bokkelen described himself as “domiciled in New York.”^‡ It can not be perceived how that fact, although it should be conceded—which it is not—could be held to except him from the guaranties contained in the treaty. The American citizenship of Yan Bokkelen being conceded by the terms of the Protocol, the question of domicile cuts no figure in the case.

9. Counsel for defendant Government insist that the true meaning of the second section of article 6 of the Treaty of November 3, 1864, is disclosed by “careful examination of article 794 of the Civil Code of Procedure and article 569, section 2, of the Code of Commerce.”

Counsel say that the second section of article 6 of the treaty is simply intended to secure to Americans, against any possible repeal, the rights guarantied them by said articles of the codes, and the construction given them by the Haytian courts.^§ The answer to this suggestion is obvious. It is negatived by the very language of article 1 of the Protocol of May 24, 1888. And the guaranty of enjoyment of civil rights (i. e., the admission to the tribunals of justice) by citizens of the United States resident or domiciled in Hayti on the same terms with native citizens was not limited to time, but was to avail them during the existence and operation of the treaty.

By provisions of article 42, Treaty of November 3, 1864, the treaty was to “remain in force for the term of eight years, dating from the exchange of ratifications: and if one year before the expiration of that period neither of the contracting parties shall have given notice to the other of its intention to terminate the same, it shall continue in force, from year to year, until one year after an official notification to terminate the same, as aforesaid.” It is not denied that this treaty is still in force.

Counsel for the defendant Government seek to restrain and confine the treaty guaranty of “free access to the tribunals of justice” to very narrow limits; and it is insisted that this clause could work no change in the laws of Hayti, either general or special; and it is said that “the meaning of the words free access, used in the treaty,” constituted a guaranty of free access to courts upon the same terms as the civil law and a constant practice provided for them”^ǁ But the answer and denial to that proposition is contained in the language of the treaty itself, which provides the conditions, namely, “on the same terms which are granted by the laws and usage of the country to native citizens.” And the connection in which this language occurs makes the inference irresistible that it included all the steps and processes of the judical tribunals of either of the contracting parties.

10. Counsel for defendant Government lay great stress upon the declaration that “American citizens sojourning, residing, or trading in Hayti,” must be held to conform to the municipal laws of Hayti.^* There can be no question but that such an obligation was imposed upon all citizens of the United States in Hayti. But, in this case, there is no complaint that Van Bokkelen, in respect to this matter, did not yield obedience to the municipal laws in operation in Hayti, except as they were modified or repealed by treaty stipulations. And the converse of the proposition is equally true, namely, that American citizens sojourning, residing, or trading in Hayti are under the protection of public law, and the treaty stipulations to which Hayti and the United States are the contracting parties.

11. Counsel for defendant Government devote much space to the consideration of the nature and character of the proceeding known as judicial eessio bonorum.^† And it is submitted “that the application made to the court, to be admitted to the benefit of cession de biens can not be regarded in the light of a suit to enforce a right.” To this it may be replied that no such contention is presented in this controversy. In the view of the referee, the judicial cessio bonorum does not appear to be in the nature of an independent suit. On the contrary, it is, as I shall further on indicate, a dependent process or step in the ordinary procedure.

12. It is further submitted on behalf of defendant Government, that at the utmost, “argument that the second section of article 6 of the treaty has repealed the provisions of civil law discriminating against aliens in the matter of judicial cession de biens, rests upon a repeal by implication of the aforestated articles of the code of civil procedure and of the code of commerce.”^‡

It may be conceded that the cases agree in saying that repeals by implication are not favored. But the very authorities cited by counsel hold that in case of positive repugnancy between the provisions of new laws and those of the old, the former operate to repeal the latter.^§

In the case under consideration, the provisions of the municipal codes of Hayti, or rather the interpretation sought to be put upon them by counsel for defendant Government, are absolutely repugnant to the stipulations in the treaty of a later date.

13. It is further contended that if the subdivision of paragraph 2 of article 6 implies the repeal of articles 794 and 569 of the code of civil procedure and the code of commerce, “it would just as well mean that the fundamental distinction underlying the whole system of civil law, as it exists in France or Hayti, has been repealed by implication, and that at best a few obscure words, which referred exclusively to remedies and not to rights, inserted in the treaty stipulation, operate as a repeal of important parts of the whole municipal legislation of Hayti.”^ǁ

It is not perceived that such a result would follow, and it is not understood that the contention of complainant Government extends to make any such claim or demand that would result in revolutionizing the judicial system of Hayti. On the contrary, as has been indicated, the whole scope and effect of the guaranty clauses in articles 6 and 9 of the treaty of November 3, 1864, stipulating for “free access to the tribunals of justice” of the respective states, is to place the citizens of Hayti and the citizens of the United States, as to the administration of justice, upon the same footing. It is not clear what force there is in the suggestion that the guaranties in the treaty stipulations must be confined to “remedies” and not to “rights.” For, whether free access to the tribunals of a country for the purpose of prosecuting or defending a suit be described as a remedy or as a right, is unimportant. It is in this relation a matter of description rather than of substance. It is the proceeding with which we are concerned, and not the name of it. The right or privilege to make a judicial assignment, under appropriate circumstances, involves the application of a remedy recognized by the law of Hayti.

“Remedies,” says Mr. Justice Story, “are part of the consequences of contracts.”^* It is laid down by the same author as a general rule, “that all foreigners, sui juris, and not otherwise specially disabled by the law of the place where the suit is brought, may there maintain suits, to vindicate their rights and redress their wrongs.”^† It is true, that until the treaty of November 3, 1864, went into operation, citizens of the United States, in common with other aliens, were excluded by the letter of the municipal law from the benefits of the judicial assignment. But from the date of the exchange of ratifications of that treaty, the benefit of the right or the remedy of judicial assignment was accorded to citizens of the United States. “Free access to the tribunals of justice, etc.,” means a right to stand in court, either voluntarily as plaintiff or involuntarily as defendant; and after appearance, the suitors or parties litigant must have a right to invoke all the usual, ordinary, and necessary processes of the tribunal, whether it be for purposes of prosecution or by way of defense. In the case under consideration Yan Bokkelen was arraigned before the local courts of Hayti, in some of the suits at least, in invitum; and as an incident of compulsory process he was imprisoned. Being within the jurisdiction and power of the Haytian court, the treaty stipulations were intended to secure to him, a citizen of the United States, the right to avail himself of all the instrumentalities and processes of the tribunals of justice.

14. It is further contended on behalf of defendant Government that article 9, treaty November 3, 1864, must be construed in the light of the civil law, and certain provisions of the Haytian civil code in regard to the transmission of property.^‡

But the protocol makes the treaties between the United States and Hayti the sources of reference for the guidance of the referee. And consequently the obligations and covenants of a reciprocal character, which are contained in these treaties, constitute the supreme law as between the complainant and defendant Governments.^§ In the view which the referee has taken of the question submitted to him, the stipulations and guaranties contained in article 6 of the treaty are in themselves sufficient to justify the claim of Yan Bokkelen to stand injustice in the courts of Hayti on the same terms with native citizens. However, it does not seem to the referee that the cumulative force of the stipulations in article 9 in respect to the transmission of property can be lessened by the argument of the defendant Government insisting upon a restrictive interpretation of the latter article. The construction sought to be put upon article 9 is cramped, narrow, and forced.

15. It is insisted on behalf of defendant Government that “the whole scope and purpose of the treaty was plainly not to abrogate any law, bat to recognize all existing laws in either country and subject the temporary resident to the operation and protection of these laws.”^*

The answers to this proposition are obvious. The temporary resident was already subject to the operation and the protection of the laws of the respective countries; but this protection was unequal. In the United States the Haytian citizen could not, in the absence of contumacious fraud, be denied the privilege of making a judicial assignment, or what was equivalent to it, for the benefit of his creditors; nor could he be imprisoned, under the circumstances in which Van Bokkelen was held in bodily confinement. In Hayti, on the contrary, prior to the treaty of November 3, 1864, a citizen of the United States was liable, by the letter of the Haytian statutes, to be summarily arrested and imprisoned for an indefinite period of time, and was excluded from the benefit of judicial assignment. It was to remedy this and other inequalities that articles 6 and 9 were incorporated into the treaty. And their immediate effect and purpose was to relieve the citizens of either of the contracting parties from odious and harsh discrimination of the local laws and to place them on the same footing. If the contention of the defendant Government should be admitted, it would render null and void the stipulations of articles 6 and 9. The object of the treaty, as expressed in its opening paragraph, is “to make lasting and firm the friendship and good understanding which happily prevail between both nations, and to place their commercial relations upon the most liberal basis.” The articles defining the reciprocal rights of citizens of each of the two nations residing and doing business in the territory of the other will be hereafter noticed.

16. In regard to the suggestion on behalf of defendant Government, charging Van Bokkelen with falsehood and fraud, because his representations in regard to his financial condition were different at different times, it may be said that there is no proof in the record that Yan Bokkelen was endeavoring, or had ever attempted, to keep back or conceal anything or reserve any benefit for himself. And the different estimates which he is charged with having made at different times may be easily reconciled with his changed status and the condition in which he found himself. But whatever presumptions may have availed against Yan Bokkelen during the preliminary proceedings in the court of first instance, they may not, in the absence of positive proof, have any force or weight in the consideration of the question now under arbitration. The courts of Hayti and the executive have nowhere rested their action denying to Van Bokkelen the right to make a judicial assignment upon any charge or suggestion of fraud or informality in these proceedings. And the starting point for the decision under this arbitration must be the action of the counts and the executive of Hayti.

17. Counsel for the defendant Government say the “second section, article 6, opens the courts of the country to the alien upon the same terms as they are opened to native citizens; but it does not change or propose to change any rights pertaining to American citizens.” And it is insisted that the repeated references to the laws and usages of the country must be taken to mean that American citizens possess no rights in Hayti except those which are specified in the municipal statutes. And the contention then is, that the rule of interpretation which is to be applied in this case is that laid down by M. Pradier Fodéré^† “Lastly, treaties and conventions must be construed in the light which agrees with public order established among the contracting nations, and more particularly with their principles of public law and with the organization of their jurisdiction; in case of doubt, and unless there are irrecusable proofs, the construction which is in harmony with the civil and public laws of France must prevail over that which would create a privileged and exceptional right.”

It is not perceived how the contention can be sustained which insists that the treaty does not change or propose to change any rights pertaining to American citizens, when, in view of the language of the treaty, its stipulations provide for the guaranty and protection and vindication of the rights of the citizens of the contracting parties on the same terms. The position of defendant Government does not receive any support from the citation from M. Pradier Fodéré, for the reason that the author is referring to the “public order” and the “civil and public laws,” and not to special or private rights and remedies.

M. Pradier Fodéré further on says:

Il est done manifesto qu’ aucune des nations na le droit d’interpréter à son gré les conditions obscures du contrat, ou d’en déléguer l’examen à ses tribunaux, pas plus qu’iln’ est loisible à la partie qui a consenti une convention synallagmatique d’interprétér elle-meme, on de faire interpreter par un mandataire à son cboix, les clauses obscures ou ambigues que contiendrait cette convention.^*

18. It is further insisted that it is “upon the claimant to establish as an affirmative proposition that the treaty of 1864 between the United States and Hayti has repealed the provisions of articles 794 of the Code of Civil Procedure and 569 of the Code of Commerce.” This contention has been considered elsewhere in this opinion at some length.

Three cases decided by the court of cassation in France, at long intervals of time, are principally relied upon by counsel for defendant Government in support of the contention that articles 6 and 9 of the treaty may not be interpreted to abrogate or repeal the municipal statutes in repugnance or conflict therewith. The first and most important is the case of Napier and others vs. The Duke of Richmond,^† which is cited in support of the contention that “diplomatic treaties must be construed in the light where they are in harmony with public and civil law in use among the contracting nations.” This decision, which was rendered on the 24th of June, 1839, holds that treaties between nations are not of the character of simple administrative and executive acts, but that they possess the character of laws; that the courts are competent to interpret treaties between nations on the occasion of private (individual) contests which refer to the particular treaties; that when a treaty has stipulated for the giving up to an alien of immovable property located in France and subject to its authority, the courts are competent to decide whether this giving up, after (agreeably to) the treaty, should operate to the benefit of a single alien heir who is mentioned in it, or of all the heirs, in the proportion of their hereditary rights and interests; that in the interpretation of diplomatic treaties the judges should prefer an interpretation which agrees with the common law and the public law of France to that interpretation which conflicts with these principled; that, in particular, the treaty of 30th of May, 1814, which, in one of its additional articles, decides first, that the withdrawal of the sequestration or embargo levied by the decree of Berlin of the 21st of November, 1806, upon the d’Aubigny tract of land belonging to the Third Duke of Richmond; second, that the restitution to the nephew of the latter should not be considered as a grant of said land in favor of this one alone conformably to the law of primogeniture recognized in England, and to the exclusion of all others having equal right, title, or interest, but this grant must be executed with reference to the succession of the Third Duke of Richmond, so that this tract of land should be divided among all those entitled in succession in accordance with the rule established by the Civil Code under the title “Successions.”

It is to be observed in the first place of this decision, that the subject-matter was real (immovable) property within the territory and jurisdiction of France, and the court rendering the decision was a court of France. The rule is familiar, that the law which governs as to real (immovable) property is lex rei sitae;^* and under application of this rule the French court, in a controversy between conflicting individual interests, used the language which occurs in this decision, and which has been copied by the Civil Court of Port au Prince as applicable to the question in controversy in Van Bokkelen’s case.

As the civil court of Port au Prince, and the court of cassation of Hayti, in stating the rule which must govern in the interpretation of treaty language, have quoted and relied upon isolated expressions of the court of cassation of France in pronouncing judgment in Napier vs. Duke of Richmond, it will be necessary to consider the latter case with some particularity.

The subject-matter in Napier vs. Richmond was a tract of land described as the d’Aubigny tract, situated in the jurisdiction of France. Like many other estates belonging to the Crown of France it had been granted to a foreign family. This grant reached back to the year 1422, having been made by Charles VII in favor of one of the Stuarts of Scotland, who had rendered signal service to France in her wars with England. In the year 1673 this grant was renewed by Louis XIV in favor of the Duchess of Portsmouth, a French lady, in the language of the grant, to be enjoyed by said duchess, and after her decease, by such one of the natural sons of King of Great Britain whom he might designate, and the male descendants in direct line of this natural son. This grant, which evidently, says the court of cassation of France, had for its object to win over Charles II to the interests of Louis XIV, does not, however, present in appearance any political character. Charles II designated as the successor of the Duchess of Portsmouth a natural son whom he had by her, named Charles Lennox, who took the title of First Duke of Richmond.

He enjoyed until his death possession of the d’Aubigny tract, and transmitted it successively to his eldest son and to the eldest of his grandsons, second and third dukes of Richmond. This property underwent all of the vicissitudes of the French wars and revolutions. Confiscated during one of the said wars of succession it was restored by the treaty of Utrecht; confiscated again in 1792, during the wars of the revolutions, it was restored at the peace of Amiens. Finally, having been confiscated for the third time in 1806, it was again restored by the treaties of 1814 and 1815. When, by the decree of Berlin of 21st of November, 1806, the French Government, availing itself of reprisals against England, declared as good prize all the properties belonging to Englishmen in France, the d’Aubigny tract was occupied by Charles Lennox, third duke of Richmond, who had taken possession in 1750. This duke died on the 19th of December, 1806, without issue, leaving lour sisters and the children of a full brother, who died before him, one of whom took the title of the fourth duke of Richmond, who was the father of the defendant in this case. This condition of things continued until the treaty of peace of the 30th of May, 1814, the fourth article of which stipulated in general terms for the withdrawal of confiscations of the war. However, a secret clause of this treaty added:

The confiscation of the Duchy of d’Aubigny and the property which belongs to it will be raised, and the Duke of Richmond placed in possession of the property such as it is now.

A royal ordinance of the 8th of July, 1814, the terms of which reproduced textually those of the secret clause, and an order of the prefect of Cher, of the 3d of August following, were forwarded to the fourth duke of Richmond, who was then in France at the head of a division of the English army, putting him in possession of the d’Aubigny tract. His possession was confirmed by a procès verbal of the 30th of November, 1814. The natural heirs of the third Duke of Richmond, who did not live in France, being advised later of their rights, addressed themselves in 1830 to the French courts to demand from the fifth Duke of Richmond, who had succeeded his father in 1819, a division of the d’Aubigny tract, as belonging to the succession of the third duke. To this demand was opposed notably the provision of the secret clause of the treaty of 1814, insisting that it contained a special derogation from article 4 of this treaty which prescribed in a general way the raising of the confiscations of the war. The heirs replied that this article 4 and the secret clause should be interpreted one by the other; that it was proper to reconcile their provisions; that the second was only a confirmation of the first, and that it was not reasonable to regard this secret clause as a private and exclusive grant for the benefit of the feudal heir of the third duke. In this condition of the respective claims of the several parties the tribunal of Sancerre having had the controversy submitted to it rendered judgment on the 9th of July, 1834, which decreed the partition of the d’Aubigny tract.

Amoug other reasons assigned for this judgment were the following:

As to the second question raised in the argument, that by the literal text the previously dated treaty raised the confiscation affixed to the d’Aubigny tract, and stipulated for the restoration of the property to the Duke of Richmond; that although by this denominative expression could not be understood the third duke, against whom the confiscation had been affixed, since the plenipotentiaries must have known that this duke, their colleague in the cabinet and in the House of Lords in England, had been dead nearly eight years, it must be understood that the grant was in fact to his heirs, according to this maxim, Hæres substinet personam defuneti; that, moreover, if the treaty did not say that in default of the third duke, his representatives should be called to receive the benefit, it was because in a previous article it was stated in a general and absolute manner that the principle of the restoration was in favor of the former proprietors or their heirs, and that this general provision applied to the Duchy of d’Aubigny. neither more nor less than to the other cases of restoration; that the confiscation of the d’Aubigny tract, by virtue of the decree of Berlin of 21st of November, 1806, must be considered as a spoliation, and that the treaty of Paris of 1814 stipulated for the restoration of this tract to the proprietor or to those having a right, but that it was not possible to regard the terms of this treaty as expressed as a personal statute and as a reward to the fourth Duke of Richmond; that the restoration of the property would not have been complete if it did not result to the benefit of those having a right or claim to it; that the treaty of 1814, understood in such a restricted sense, would not have been a restoration—a reparation—but the maintenance and continuation of an unjust spoliation, which, however, the high contracting parties declared that they wished to put an end to after the military events which had provoked them; that whereas the succession of the third Duke of Richmond was opened 19th of December, 1806, but at that time the law of the 25th of October, 1792, had abolished all kinds of substitution, and that this succession, so far as property situated in France was concerned, was governed by French laws, agreeably to article 3 of the civil code; and that it devolved or descended in five parts to the brothers and sisters of the deceased or to their representatives, in accordance with the terms of article 750, civil code; that in the treaty of the 30th of May, 1814, there is no expression that leads to the belief that there was any abrogation of a legislation which had become fixed in our customs or any failure or omission of national dignity which would have resulted in subjecting property situated on the soil of France to the rules of English legislation.

The above decree or judgment of the tribunal of Sancerre was brought by the Duke of Richmond on appeal to the royal court of Bourges, which rendered its decision on the 11th of March, 1835, reversing the judgment of the tribunal of Sancerre. From this decision an appeal was taken by the heirs of the fourth Duke of Richmond to the court of cassation of France. When the case came before the court of cassation, the eminent lawyer, M. Dupin, then attorney-general for the Government, made an elaborate argument in support of the position of the heirs of the fourth Duke of Richmond and in defense of the decree of the tribunal of Sancerre.

The court of cassation of France reversed the decision of the court of Bourges, sustaining in substance the decree of the tribunal of Sancerre, as well as the main argument of the attorney-general. In announcing its judgment the court of cassation, among other propositions, held:

On the first branch of the argument: Whereas the defendant having been summoned to make partition of the d’Aubigny tract and to restore the fruits and allowances received by him, as well as by the fourth Duke of Richmond, has opposed, as the principal exception or objection, a secret clause in the treaty of the 30th of May, 1814, to this effect: “The confiscation affixed to the Duchy of d’Aubigny and on the property which belongs to it shall be raised, and the Duke of Richmond shall be placed in possession of the property such as it is presently;” that the defendant has drawn from this clause the consequence that he had been invested with the exclusive property of this immovable by the diplomatic convention of 1814, and the complainants having disputed this interpretation, the first question to decide in the case is that relative to the true sense and effect of the stipulation above cited; whereas the tribunals having jurisdiction of the action were necessarily competent judges of the exception or objection, since they were not prohibited by any provision of law; that the defendant without avail invokes the principle which forbids the judicial authority to interpret administrative acts; that the treaties between nations are not simple administrative and executive acts; that they possess the character of law and can not be applied and interpreted but in the forms and by the authorities intrusted with applying all the laws within their jurisdiction whenever disputes which give rise to this interpretation have private interests for their object; that the action of complainants, founded upon their character as heirs, raised the questions of private succession and of property, which is allotted by the law to the judicial power; whereas the decrees attacked instead of pronouncing judgment on the questions determining the true sense of this clause, which was never published nor inserted in the Bulletin des Lois, declared that the royal court had not the right to seek out the sense of the treaty, and that the complainants should go before the competent authority who executed this act before availing themselves of their character, pretended or real, as heirs in equal proportion of the third Duke of Richmond; that it resulted from these reasons that the royal court refused to pronounce judgment as well on the principal action and as to the title of the heirs, which was the main question, as also on the exception and the meaning of the clause; that it referred all the points of which it was regularly seized to another authority, which it did not indicate; that the complainants would be deprived by this dismissal of all means of obtaining a legal decision upon their demand; whereas the royal ordinance of the 8th of July, 1814, and, the prefect’s decree of the 3d of August following are only acts in execution of the treaty and of the obligations which article 4 of the additional clauses imposed upon each of the contracting powers to raise several confiscations which had been affixed; that moreover these acts, which did not add anything to the treaty, and with which they are identified, can not he considered as acts belonging to the exercise of the administrative power, cognizance of which was forbidden to the tribunals.

As to the second branch of the argument: Whereas the decrees denounced, after having in their reasons declared the incompetency of the tribunals and referred to another authority, had meanwhile decided that the complainants could not sustain their action, for the reason that the treaty invested the defendant with the property of the immovable claimed by them; that the reasons for these decrees and their provisions imply a contradiction; that they have, in addition, ignored: First, the text of the laws which govern immovables situated in France and their transmission to the heirs; second, the true meaning of the treaty and of the secret clause; third, the rules established by the Civil Code for the interpretation of conventions; finally, the d’Aubigny tract, being situated in France, was governed, as to the succession of the Third Duke of Richmond, by the law of France; that substitutions were abolished and the privilege of the oldest male was suppressed, and that the heirs of this duke were entitled to receive this property in equal portions, and that they were invested with it by the mere operation of law; that the defendant can not invoke the law of nations to claim the grant of an exclusive right; that the transmission of property by way of succession is governed by the civil law of each State; whereas, if the text of this stipulation left any doubt of its true meaning, it would be disposed of by the rules of law in reference to the interpretation of conventions; that the first is to seek out the common or ordinary intention of the contracting parties, rather than to stop at the literal meaning of the terms; that it is impossible to suppose that the intention of the plenipotentiaries was to regulate the law of succession between co-heirs; to grant to one the whole property in the estate or land to the exclusion of the others, without any indemnity whatever to these latter; that this grant to the Fourth Duke of Richmond alone would have been in derogation of French legislation, and would have created in France a property or estate governed by privileged and exceptional law; that such an intention, which would be in opposition to all the provisions of the treaty, can not be admitted without unexceptionable proofs; that it would have been expressed in positive terms if it had existed; that all the clauses should be interpreted one by the other so as to give to each the meaning which results from the whole text, and the secret clause should be understood in the sense of a restoration to the one who was entitled, or to his heirs, in accordance with the spirit of the treaty; that diplomatic treaties should be understood in the sense which places them in accord with the civil and public law recognized by the contracting parties; that the interpretation given to the clause by the decrees which are attacked put them in opposition to all the laws, the civil as well as the public law, of France. That in not designating by name which Duke of Richmond should be placed in possession, the clause could only have had in view the one who was dispossessed, or his representatives; that in admitting the fourth duke to restoration it was for the benefit of his co-heirs as well as for himself. It results from the considerations which precede, that the decrees which are attacked for refusing to take into consideration the rights of the parties in accordance with the interpretation of diplomatic conventions, and in deciding that the apparent text of these conventions had dispossessed the heirs of the Third Duke of Richmond of their rights to the d’Aubigny tract, have violated and misapplied the laws above cited.

It seems to the referee that the above exposition of facts and of law which were involved in the case of Napier vs. The Duke of Richmond, and the decision of the court of cassation of France thereon, make it clear that the case does not justify the use or application which the Haytian courts have attempted to make of it by incorporating in their judgments isolated expressions, which are withdrawn from the context in the decision of the former case. The court of cassation of France simply decided that they would not put such a construction upon treaty language as would result in the abrogation of the law of descent of France in respect to real (immovable) property 5 that as to such property the lex rei sitæ governed; and that it was impossible to suppose that the intention of the plenipotentiaries was to abrogate the laws of descent of France in this respect, and that such an intention would be in conflict with all the provisions of the treaty.

In the view taken of that case there does not seem to be room for complaint or criticism. And there is no evidence that the action of the Government of France, as expressed in the decree of its supreme court, has been ever excepted or objected to by Great Britain. If, however, Great Britain had considered that as a consequence of this decree injustice had been done to one of her citizens, or a treaty stipulation had been violated by France, she would, no doubt, have made it the subject of international settlement.

The second case cited by counsel for defendant government in this connection is Challier vs. Ovel, which was decided by the court of cassation of France on the 17th of March, 1830.^* The extent to which the court went was to hold that, although article 22 of the treaty of the 24th of March, 1760, between France and Sardinia,^* had abrogated a principle sanctioned by article 121, ordinance 1629, as also by articles 21–23 and 21–28 Civil Code and 646 Code of Procedure, it did not follow that the execution of these judgments rendered by the Sardinian tribunals should be decreed in France, when they were contrary to the maxims of the public law of France or to the public order of jurisdiction, and that in refusing to decree in France the execution of the judgment and decrees rendered in the cause by the Piedmontese tribunal, the decree attacked only conformed to the principles of the public law, and did not violate either the treaty of 1760 or any law.

Challier vs. Ovel was a case where a citizen of France, having been arraigned before one of the courts of Sardinia, demurred to the jurisdiction of that court, and claimed exemption from suit in the foreign jurisdiction, insisting that he could only be sued in the jurisdiction of his domicile, which was France. The Sardinian court, notwithstanding his plea, proceeded with the cause and rendered judgment against him. It was such a judgment against a citizen of France so obtained that the court of cassation of France declined to put into execution. This case has nothing in common with Van Bokkelen vs. Hayti.

The third case cited by counsel lor defendant government in this connection is Alberto Balestrini vs. Aubert and others.^† The conclusion leached was, that international treaties are not simple administrative acts; that they may be applied and even interpreted by judicial authority, when it is a question of convention having for their object individual interests.

The case of Balestrini vs. Aubert presented a controversy between contesting associates, one of whom had a concession under the provisions of a treaty which gave him a right to establish and operate a telegraph line under a new system of electric cable between France and the United States. The contest was as to the respective interests of these several associates, and the provisions of the grant or concession in the treaty came thus for consideration incidentally before the court. It was in such a case that the court of cassation of France held that the stipulations of a treaty could be applied and interpreted by judicial authority whenever it was a question of agreements or conventions having private or individual interests for their object. It must be perceived that there is no similarity between that case and the one under consideration.

The ratio decidendi in all these cases is very plain. It is this, that the judicial tribunals of a country, when called upon to decide controversies between individuals which grow out of or are dependent upon treaty stipulations, will not hesitate to construe the language of those treaties according to the rules of law which apply to all instruments. They will construe the provisions so as to give effect to rather than to defeat the intention of the contracting parties; and they will reconcile apparent conflicts of particular parts by reference to the context in which they occur and to the whole instrument. They will not impute to the plenipotentiaries in the negotiation of a treaty an intention which is in conflict with the fundamental law of the State. They will not lend their sanction to execute a treaty stipulation when it is in violation of the fundamental law of the jurisdiction; and they do this upon the ground that it is beyond the competency of the treaty-making power to enter into stipulations which are in conflict with the public law or the public policy of the jurisdiction.

The treaty-making power is necessarily and obviously subordinate to the fundamental laws and constitution of the State, and it can not change the form of the government or annihilate its constitutional powers.^*

This language has been used by distinguished American jurists in reference to the Government of the United States. It applies equally to the public policy and limitations of all constitutional states.

In every civilized state two divisions of law are recognized: First, the law which regulates the public order and right of nations, which is jus publicum; second, the law which determines the private rights of men, which is called jus civile^† The law of procedure (the adjective law) is distinguished from the fundamental law of a state, and includes remedial law, which is a law whereby a method is pointed out to recover a man’s private rights or redress his private wrongs.^‡ And the instrument by which the individual vindicates his rights and remedies his wrongs is an action or suit at law. In this sense an action is not a right; but it is the means which the law affords for pursuing the right. “Actio non est, jus sed medium jus persequendi”^§

“I consider,” says Lord Bacon, “that it is a true and received division of law into jus publicum and jus privatum, the one being the sinews of property, and the other of government.”^ǁ Law defines the rights which it will aid, and specifies the way in which it will aid them. So far as it defines, thereby creating, it is “substantive law.” So far as it provides a method of aiding and protecting, it is “adjective law” or procedure.^¶

It would seem to be clear from the cases decided by the court of cassation of France, heretofore cited, that the decisions do not sustain the position taken by the Haytian courts and by the counsel for defendant Government. In the case under consideration Van Bokkelen petitioned the court for the purpose of availing himself of the law of procedure guarantied to him by the treaty. The pretension that articles 6 and 9 of the treaty of November 3, 1804, contained any stipulation that was violative of the fundamental law of Hayti is without any foundation.

The article (1054, civil code of Hayti) which Van Bokkelen invoked for his protection belongs to the law of procedure or the adjective law of Hayti. And the article 794 Haytian code of civil procedure) and article 569 (Haytian code of commerce), which the Haytian authorities opposed in denying Van Bokkelen’s petition, are also a part of the law of procedure or adjective law of Hayti. They do not form a part of the constitutional, fundamental, or national law of Hayti. And the attempt by the judicial and executive authorities of Hayti to characterize a simple judicial assignment as an institution of civil law, or an institution of civil right, in the sense intended, is a misuse of language and a misapplication of terms.

The counsel for defendant Government invite attention to “the leading English case on this subject,” upon which they place some reliance.^** This was an action between private litigants upon several policies of insurance on a certain ship and cargo, upon which the defendant in error had effected insurance. “While on a trading voyage ship and cargo were captured by a British squadron, and thus became a total loss to the owners and insurers. Demand was then made by the insured upon the insurer to make good his proportion of the loss so incurred. He refused to do so, and when sued, set up the defense that the voyage on which ship and cargo were lost was illegal. On the trial before King’s Bench and Exchequer Chamber it was admitted that the voyage was illegal and unless it was within the protection of certain articles of the treaty between Great Britain and the United States, concluded the 19th of ft November, 1794. Defendant insisted that the voyage was not within the letter of the treaty, and therefore it was illegal. Bat the Exchequer Chamber held that the voyage was within the spirit, though not the letter of the treaty; and, in deciding the case, used the language quoted in the argument for defendant Government.^*

Chief Justice Eyre, in deciding the case, said:

There may be reason to apprehend that this treaty will open a door to many of our own people whom the policy of our laws has shut out from a direct trade to the East Indies. In truth, it can hardly be expected that the spirit of commerce too often found eluding laws made to keep it within bounds, that the lucri bonus odor should not embark British capital in this trade. This ought to have been foreseen, and therefore I conclude it was foreseen, and that it was found that the balance of advantage and disadvantage preponderated in favor of the treaty, if not, those who advised it will have to answer for it; responsibility is not with us. We are not even expounders of treaties. This treaty is brought under our consideration incidentally as an ingredient in a cause in judgment before us; we only say how it is to be understood between the parties to this record.

This we are bound to do; we have but one rule by which we are to govern ourselves. We are to construe this treaty as we would construe any other instrument, public or private. We are to collect from the nature of the subject, from the words and from the context, the true intent and meaning of the contracting parties, whether they are A and B, or happen to be two independent states. The judges who administer the municipal laws of one of those states would commit themselves upon very disadvantageous ground—ground which they could have no opportunity of examining—if they were to suffer collateral considerations to mix in their judgment on a case circumstanced as the present one is.* * * Whether the trade should have been conceded under any qualifications or restrictions is one thing; it having been conceded, now to attempt to cramp it by narrow, rigorous, forced construction of the words of the treaty is another and a very different consideration. We can not suppose that an indirect advantage was intended to be reserved to the East India Company by so framing the treaty that the American trade might by construction be put under disadvantage, because this would be chicanery unworthy of the British Government and contrary to the character of its negotiations, which have been at all times distinguished by their good faith to a degree of candor which has been supposed sometimes to have exposed it to the hazard of being made the dupe of more refined politicians. The nature of the trade granted, in my opinion, fixes the construction of the grant. If it were necessary to go further, strong arguments may be drawn from the context of this article and the contrast, which the comparing it with the preceding article will produce,^†

Far from advancing the argument of counsel for defendant Government, the conclusions and the reasoning of the Chief-Justice in Marryat vs. Wilson are strongly opposed to the contention of the defendant Government, and sustain the position of the complainant Government in this case. Marryat vs. Wilson is strong authority for the proposition that the municipal tribunals of a country may not nullify the purpose and effect of treaty language by imposing upon it a cramped, narrow, and forced construction. And it is to be observed that in the case before the Exchequer Chamber, the judgment of the court sustaining interpretation of treaty stipulations which would give effect to the spirit, if not to the letter of the treaty, was rendered in a case where the beneficiaries were aliens, that is, citizens of the United States; and in denial of defenses set up by British subjects before one of the superior courts of Great Britain.

It is to be noted that these several decisions of the highest courts of France and Great Britain, which are cited and relied upon by the defendant Government on this branch of the argument, are cases in which the conclusions of the courts were in support of the protective and private property rights of individuals. The result of all these decisions was to work out substantial justice between the parties. In the case under consideration, the result of the judgments of the Haytian courts and the action of the Executive of Hayti was to defeat the efforts of Van Bokkelen to protect himself from wrong and injustice, and to secure to himself rights plainly guarantied to him, in common with all other citizens of the United States, by the treaty.

Counsel for defendant Government cites a decision of the Supreme Court of the United States,^* referred to as the head-money cases, to the effect that so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the United States, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.

On this point there is not room for much controversy. But an act of the Congress of the United States in derogation of treaty rights has always been held to be a ground for diplomatic intervention. In the case under consideration, the converse of the proposition announced by the Supreme Court in the head-money cases is presented. Here the collision or conflict is between provisions contained in prior municipal statutes of Hayti and stipulations of a treaty between the United States and Hayti of a subsequent date. The rule is universal that a prior statute is repealed by a subsequent statute which is absolutely repugnant; leges posteriores priores contrarias abrogant. The same principle applies when a municipal statute and a treaty stipulation is in competition. A treaty stipulation of a later date repeals a prior statute with whose provisions it is repugnant. And the reverse of the proposition is maintained by the Supreme Court of the United States.^† In the head-money cases the Supreme Court of the United States laid down the following propositions:

A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.

If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partaker of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The Constitution, of the United States places such provisions as these in the same category as other laws of Congress by its declaration that this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.” A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it, as it would to a statute.^‡

It will be seen from the above review of the several arguments on behalf of defendant Government, that many of the propositions which are still strenuously urged in defense are addressed to the consideration and support of subsidiary and collateral issues which are, by the terms of the protocol, excluded from the consideration of the referee.

the treaty of november 3, 1864.

It becomes, therefore, necessary to examine the provisions of the treaty upon which complainant Government relies in its intervention on behalf of Van Bokkelen, and to the application of which defendant Government objects.

Section 2, article 6, stipulates:

The citizens of the contracting parties shall have tree access to the tribunals of justice, in all cases to which they may be a party, on the same terms which are granted by the laws and usages of the country to native citizens, etc.

Les citoyens des parties contractantes auront libre accès près les tribunaux de justice dans toutes les causes où ils seront intéressés, aux mêmes conditions que les lois et les usages du pays font aux nationaux, etc.

In view of the explicit language in both texts, it would seem clear that the guaranty to the citizens of contracting states of “free access to the tribunals of justice, in all cases to which they may be a party, on the same terms which are granted by the laws and usages of the country to native citizens,” means that they shall be entitled to the exercise of all the processes of the courts of the respective countries, whether they concern rights or remedies. And the extent to which these processes of the courts may be invoked is expressed in language equally free from doubt: “On the same terms which are granted by the laws and usages of the country to native citizens.” It is not denied that a citizen of Hayti in the situation which Van Bokkelen was, would have been entitled to release from imprisonment upon making a judicial assignment. Indeed, the language and reasoning of the Haytian courts and of the Executive of Hayti admit as much.

Article 9 stipulates:

The citizens of each of the high contracting parties within the jurisdiction of the other shall have power to dispose of their personal property by sale, donation, testament, or otherwise; and their personal representatives, being citizens of the other contracting party, shall succeed to their personal property, whether by testament or ab intestate. They may take possession thereof, either by themselves or by others acting for them, at their pleasure, and dispose of the same, paying such duty only as the citizens of the country wherein the said personal property is situated shall be subject to pay in like cases, etc.

Les citoyens de chacune des hautes parties contractantes auront, dans la juridiction de l’autre, la faculté de disposer de leurs biens mobiliers par vente, donation, testament, ou autrement; et leurs successeurs, citoyens de l’autre partie contractante, pourront hériter de leurs biens mobiliers soit par testament, soit ab-intestat. Ils pourront en prendre possession soit par eux-memes, soit par des tiers agissant pour eux, comme ils le voudront, et en disposer sans payer d’autres droits que ceux auxquels son assujettis, dans les mêmes circonstances, les citoyens du pays, où sont situés les dits biens mobiliers, etc.

There would seem to be no ambiguity in the language of these articles; and the best way to construe them is to follow the words thereof.

But the civil court of Port au Prince, and the court of cassation affirming the decision of the civil court, denying Van Bokkelen’s petition to execute a judicial assignment, decide that there is nothing in articles 6 or 9 of the treaty of November 3, 1864, which guaranties to Van Bokkelen, or any citizen of the United States, the right to release from imprisonment upon the execution of a judicial assignment conformably to the terms of the civil procedure of Hayti. The civil court decided, among other things, that the “reason which causes the exclusion of foreigners is that the benefit of an assignment has always been regarded as an institution of civil law which should benefit native citizens only;” and “it is impossible to suppose that it was the intention of the contracting plenipotentiaries to abrogate or modify, by article 9 or by article 6 of the treaty, as those articles are worded, article 794 of the civil code of procedure and article 569 of the code of commerce, which exclude a foreigner from the benefit of making an assignment;” and further, that “whereas, although the text of this stipulation (article 9), and even that of article 6, which grants to the citizens of the two contracting parties free access to the courts of justice, in all cases in which they shall be interested, on the same terms that are granted by the laws and usage of the country to native citizens, might leave some doubt with regard to their true meaning, it would be dispelled by the rules of law concerning the interpretation of conventions which are applicable to treaties;” and this court then proceeds as follows:

Whereas the first of these rules is to seek out the common intention of the contracting parties rather than to be guided by the literal meaning of the terms.^*—[Translation.]

From this decision of the civil court of Port au Prince, rendered May 27, 1884, Van Bokkelen appealed to the court of cassation, which rendered its decision, affirming the decision of the civil court, on February 26, 1885, almost a year from the time Yan Bokkelen was first imprisoned.

The court of cassation, affirming the judgment of the civil court, held:

Whereas the judicial assignment of property is an institution of civil right, the articles 769 (794) of the Code of Civil Procedure and 569 of the Code of Commerce, excepting foreigners from the benefit of this institution, since they do not exercise in Hayti all rights, they can only enjoy privileges derived from natural rights or of mankind, and not those which are derived from purely civil law.^†

If, as I shall hereafter endeavor to show, the judicial assignment (cession de biens) is simply a step in the procedure of the courts in bankruptcy proceedings, it is not perceived how the description of it “as an institution of the civil law” can have the effect of withdrawing it from the guaranty expressed in the treaty grant of “free access to the tribunals of justice,” unless it was excepted in terms from the treaty stipulations.

Of the decree of the court of cassation, affirming the decision of the civil court of Port au Prince, it is to be observed that the latter court follows substantially, though not literally, the reasoning of the former.^*

A careful reading of the decree of the court of cassation indicates that the court has, in its attempt to justify the authorities of Hayti, indulged in the same peculiar reasoning as the civil court of Port au Prince; and it is consequently open to the same criticism.

The extreme to which the court has gone in search of reasons to justify its judgment indicates the absence of that good faith which should characterize the interpretation of treaty stipulations. And in view of the language of articles 6 and 9 of the treaty of No vein her 3, 1864, it is difficult to understand by what process of reasoning the court reached the conclusion that a citizen of the United States, within the jurisdiction of Hayti, “Can only enjoy privileges derived from natural rights or of mankind, and not those that are derived from purely civil law.”

Equally illogical and untenable is the reasoning of the court of cassation in holding that nowhere in the treaty of November 3, 1804, is there to be found a provision which may be held to confer upon the citizens of the contracting States other and additional rights; i. e., full right to exercise the “judicial assignment” of property. Under the public law or law of nations aliens enjoy purely natural rights in whatever State they may be. And in the absence of any treaty, a citizen of the United States would have enjoyed natural rights in Hayti; but the terms of the treaty of November 3, 1864, stipulate, in effect, that such citizen shall further enjoy civil rights.

The court of cassation, although admitting that the treaty stipulates that “the citizens of the contracting parties should have free access to the courts of justice, in all cases wherein they may be interested, on the same conditions that the law and usages of the country give to their citizens, furnishing security required in the case,” maintains “that this provision of article 6 is not intended to grant to the citizens of these two nations the enjoyment of civil rights.”

The court of cassation is in error in assuming that the privilege of release of an imprisoned debtor would be denied to the Haytian citizen by the United States courts circumstanced as Yan Bokkelen was when he invoked the protection of the treaty. In such a case, assuming that other and ordinary applications for release had failed, the writ of habeas corpus would lie to the courts of the United States, and would avail to secure his release from imprisonment.

In view of the treaty language and terms of the protocol, it is impossible for the referee to sustain the reasoning or the conclusions reached by the civil court of Port au Prince or by the court of cassation. It is not perceived how the nature or character of the remedy or right expressly guaranteed to citizens of the United States within the jurisdiction of Hayti can be withheld from them by describing it, as the judgment of the civil court of Port au Prince does, “as an institution of civil law,” or as the decree of the court of cassation does, “an institution of civil right.” The “judicial assignment” (cession de biens), as I have elsewhere pointed out, is simply an incident or step in the judicial procedure in the courts of Hayti in bankruptcy proceedings. And if it be not included within the guaranty of “free access to the tribunals of justice,” the language is without meaning and inoperative. “Free access to the tribunals of justice” that was limited to admission to the courts, without the privilege to plaintiff or defendant of employing the usual, ordinary processes of the court, would be a delusion and a snare Such an intention or purpose may not, in the absence of plain language, be imputed to the high contracting parties.

The attempt of the courts of Hayti and of the Executive to exclude a citizen of the United States from the benefit of a judicial assignment, on the ground that the treaty of November 3, 1864, makes no mention of it in express terms, does not seem to call for serious consideration. Such a strained objection would only be satisfied by incorporating the body of the Haytian codes in the treaty articles. With equal force and soundness the courts of Hayti and the executive power might have denied this right, remedy, or privilege to Yan Bokkelen on the ground that he was not mentioned or particularly named in the treaty. When the treaty said “free access to the tribunals of justice * * * on the same terms which are granted by the laws and usages of the country to native citizens,” it included the whole class of citizens, and fixed the terms upon which the laws and usage of the country were to be applied to them.

Among the international rules proposed by the Institute of International Law of Geneva, 1877, with the view to negotiation of international treaties, the following rules, among others, were adopted:

1. L’élranger sera admis à ester en justice aux mêmes conditions que le régnicole.

2. Les formes ordinatoires de l’instruction et de la procedure seront régies par la loi du lieu où le procès est instruit. Seront considérées comme telles, les prescriptions relatives aux formes de l’assignation (sauf ce qui est proposé ci-dessous, 2me al.), aux délais de comparution, à la nature et à la forme de la procuration ad litem au mode de recueiller les preuves, à la rédaction et au prononcé du jugement, à la passation en force de chose jugée, aux délais et aux formalites de l’appel et autres voies de recours, à la péremption de l’instance.^*

Reference is here made to the language of the above rules to show that when an alien is admitted to stand in justice on the same terms as a citizen he must necessarily be entitled to invoke in his behalf all the customary and civil procèsses of the courts which are open to citizens.

judicial assignment (cession de biens).

In view of the fact that the executive and judicial authorities of Hayti have placed their refusal to admit Van Bokkelen to the benefits of the judicial assignment upon the ground that by the letter of the municipal codes of Hayti all aliens are excluded from its privileges, and that it is confined to native citizens, and that it is a civil institution of the state, it becomes necessary to inquire into the real nature and character of the proceeding known as judicial assignment (cession de biens). This is of the first importance, because the fallacy in the reasoning of the courts and of the Executive of Hayti and of counsel for the defendant Government consists in attributing exceptional characteristics and functions to the act of judicial assignment.

The provisions of the Haytian code which have been cited are here below inserted.^*

There is nothing exceptional, unusual, or extraordinary in this proceeding. It is not, as the language of the courts, of the Executive of Hayti, and the argument of counsel for defendant Government implies, a law unto itself of such supreme authority as to negative the purpose and effect of a treaty stipulation.

The judicial assignment (cession de biens) of the Haytian codes is described under title 5 of the Civil Code of Hayti, and of 12 of the Code of Civil Procedure, and title 2 of the Code of Commerce.

There is nothing hidden or mysterious about it; it possesses no cabalistic power. And the execution of a judicial assignment is simply a step in the ordinary procedure and practice of the courts of Hayti. It is a familiar and well-known incident in the jurisprudence of the civil law. The provisions in the Haytian code were transferred bodily from the civil code of France; and France incorporated them in her code from the corresponding title (cessio bonorum) of the Justinian code, whence they are traced back to the Lex Julia.^†

The Lex Julia, probably passed in the reign of Augustus, at length exempted insolvent debtors from the penalty of imprisonment and infamy, and secured to them the beneficium competentiæ or right to maintenance; provided they made an immediate and complete cessio bonorum to their creditors.^‡

The surrender was made by solemn declaration, either judicial or extrajudicial. The property thus given up was sold and the price distributed among the creditors. The debtor was not released from his debts unless the creditors were fully paid, but he was protected from imprisonment at their instance. If the debtor subsequently acquired property his creditors were entitled to attach it, except in so far as it was necessary for his own subsistence. This latter privilege was called “exceptio” or “beneficium competentiæ.”

The Lex Julia de cessio bonorum introduced a new procedure in relation to a bankrupt’s estate (venditio bonorum), which theretofore was governed by the “missio in bona.”^§

The rule for the interpretation of treaty stipulations suggested in the judgment of the civil courts of Port au Prince, as has been pointed out, was taken from its appropriate context in the decision of the court of cassation, in Napier vs. Duke of Richmond, which case has been considered. As it is sought to be used in relation to the case under consideration it is without relevance or authority. The language of all the authorities repudiates such a strained and singular construction, whether it be in application to private contracts or to international covenants.

It may be said of the treaty of November 3, 1864, as was said of the Constitution of the United States by Mr. Justice Story, with the approval of Chancellor Kent, that—

The instrument furnishes essentially the means of its own interpretation.^*

The first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms and the intention of the parties. The intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law.^†

And the only case in which a literal meaning is not to be adopted is limited to the exception when such construction would involve a manifest absurdity.^‡

When the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation. In literal interpretation the rule observed is to follow the sense in respect both of the words and construction of them which is agreeable to common use without attending to etymological fancies or grammatical refinements.^§

All international treaties are covenants bona fide, and are therefore to be equitably and not technically construed.^ǁ

The principal rule has already been adverted to namely to follow the ordinary and usual acceptation, the plain and obvious meaning of the language employed. This rule is, in fact, inculcated as a cardinal maxim of interpretation equally by civilians and by writers on international law.

Vattel says that it is not allowable to interpret what has no need of interpretation. If the meaning be evident and the conclusion not absurd, you have no right to look beyond or beneath it, to alter or to add to it by conjecture. Wolf observes that to do so is to remove all certainty from human transactions.^¶

Treaties are to be interpreted according to their plain sense.^**

Publicists are generally agreed in laying down certain rules of construction as being applicable when disagreement takes place between the parties to a treaty as to the meaning or intention of stipulations. Some of these rules are either unsafe in their application or of doubtful applicability; and rules tainted by any shade of doubt, from whatever source it may be derived, are unfit for use in international controversy.

Those against which no objection can be urged, and which are probably sufficient for all purposes, may be stated as follows:

When the language of a treaty, taken in the ordinary meaning of the words, yields a plain and reasonable sense, subject to the qualifications, that any words which may have a customary meaning in treaties differing from their common signification must be understood to have that meaning, and that a sense can not be adopted which leads to an absurdity or to incompatibility of the contract with an accepted fundamental principle of law.^††

Treaties of every kind, when made by the competent authority, are as obligatory upon nations as private contracts are binding upon individuals, and these are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and to be kept with the most scrupulous good faith. Their meaning is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts.^‡‡

Applying these rules to the words, the context, and the subject matter found in articles 6 and 9 of the treaty of November 3, 1864, there would seem to be no difficulty in ascertaining their precise intention and meaning.

The infirmity or fallacy disclosed in the reasoning of the decrees of the Haytian courts and in the message of the Executive of Hayti, referring to this case and adopting the views of the courts, is that the judges and President Salomon reason about the competition which exists between the treaty and the municipal law of Hayti, as if the question of relative authority and comparative precedence was between a municipal statute of the United States and a municipal statute of Hayti. In doing this they lose sight of the important fact that the competition is between provisions contained in municipal statutes of Hayti and stipulations in a treaty of subsequent date, to which Hayti is one of the contracting parties. It would seem, from the character of the arguments submitted on behalf of Hayti, that counsel did not fail to recognize this infirmity in the reasoning of the judicial and executive authorities. And this seems to have embarrassed counsel for defendant Government, and accounts for the shifting positions upon which the defense in this case has, at different times, rested. It seems to be forgotten that the operation of treaty stipulations within the jurisdiction of a contracting party is not a foreign interference, nor is it the application of extra-territorial or foreign law. By the constitution and law of Hayti a treaty is a law of the state.

The treaty of November 3, 1864, is within Lorimer’s category of the third class of treaties “as sources of international law;” treaties which, among other things, recognize the equal rights of foreigners and natives before the municipal law:^*

The value of treaties, as a source of the positive law of nations, is supposed to have been greatly enhanced by the annex to Protocol No. 1 of the conferences held in London in 1871 respecting the clauses of the treaty of Paris of 1856, which have reference to the neutralization of the Black Sea. The protocol is in the following words:

“The plenipotentiaries recognize that it is an essential principle of the law of nations that no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement.”

Some of the inconsistencies in the positions assumed, at different times, by the defendant Government have been pointed out in the brief on behalf of complainant,^†

It was first maintained that the case of Van Bokkelen in the Haytian courts was decided only on an exception; that is to say that the court of cassation, affirming the judgment of the court below, held that Yan Bokkelen, being an alien, the said court had no jurisdiction over the subject matter.^‡

At a later date, referring to the decision of the courts, it was argued that “at the utmost the Haytian judges erred in resting their decision upon grounds erroneous, or open to discussion; and the only error, if any, which may possibly be charged to them, was to set forth as a ground for their judgment that Van Bokkelen’s case did not fall within the scope of the treaty, instead of stating simply that petitioner had not taken the steps required to be entitled to the rights guarantied him by said treaty stipulations.”^§

As has been said, “such a decision would, indeed, have created an entirely different situation.”^ǁ

In the second argument or note the Haytian minister maintained that under article 148 of the Haytian code of civil procedure judgment in the Yan Bokkelen case was null and void. His first proposition in regard to the action of the court is, that it dismissed Yan Bokkelen’s case for want of jurisdiction. His second proposition is, that the judgment of the tribunal of Port au Prince must be regarded as a final decision against Yan Bokkelen of all the questions raised by the pleadings; and his third proposition is, that Yan Bokkelen did not exhaust the legal remedies afforded by municipal law, because, on account of an omission on the part of the judges to “pass upon “all the questions raised, the judgment was null and void, and Yan Bokkelen was therefore entitled to the extraordinary remedy known as to “la requête civile.”^*

It is quite clear from an examination of article 148 of the Haytian code of civil procedure, referred to by Mr. Preston, that the judges are not required to “pass upon” all the points raised in the pleadings in the sense of judicially determining them, but only of taking notice or mentioning them in the judicial summary of the proceedings, which in Haytiau procedure constitutes the judgment. And one of the objects of this requirement seems to be to furnish evidence to the parties in the judgment itself that none of their points have been overlooked. It further appears that the re-opening of the judgment under that article can be had only “upon the request of those who have been parties, or of those who have been duly brought into court.”^†

Reference is again made to the conflicting and contradictory positions assumed, at different stages of the proceedings, by the defendant Government, for the purpose of showing how important and necessary it has been for the referee to confine himself to the narrow ground furnished in the single issue suggested by the terms of the arbitration. The language of the protocol necessarily fixed the decision of the Haytian courts and the action of the Executive of Hayti as the starting point for the referee’s examination and decision.^‡ And the treaties between the nigh contracting parties were made the supreme law for his consideration and guidance.

in conclusion.

Whether the literal, natural meaning of the language, or the spirit of the treaty of November 3, 1864, or the common intention of the contracting parties be regarded, I am of opinion, first, that the imprisonment of Charles Adrian Yan Bokkelen, a citizen of the United States in Hayti, was in derogation of the rights to which he was entitled as a citizen of the United States under stipulations contained in the treaty between the United States and Hayti; second, that the record of the case and the correspondence between the two Governments fails to disclose any extenuating circumstances or sufficient justification for the harsh treatment and protracted imprisonment of Yan Bokkelen by the constituted authorities of the Republic of Hayti, notwithstanding the earnest and repeated protests of the representatives of the United States; and I award that the Republic of Hayti pay to the United States, on behalf of the representatives of Charles Adrian Yan Bokkelen, the sum of sixty thousand dollars ($60,000).

Witness my hand this 4th day of December, A. D. 1888, at the city of Washington.

Alex. Porter Morse,
Referee.

1. Protocol, May 4, 1888, articles 1 and 2.
2. Phillimore, International Law, Volume III, third edition, page 64.
3. Exhibit No 4, pp. 32–34; Foreign Relations, 1885, pp. 449, 535–536.
4. First brief of counsel for defendant Government, page 3.
5. First brief of council for defendant Government, pages 4, 5, and 6.
6. First brief of council for defendant Government, pages 6 and 7.
7. First brief of counsel for defendant Government, page 7.
8. Protocol, May 24, 1888, article 1.
9. First brief of counsel for defendant Government, page 8.
10. Protocol May 24, 1888, article 1.
11. Vattel, hook 2, chapter xvii, page 265.
12. Hon. Stephen Preston.
13. First brief, page 16.
14. Civil Code of Hayti, article 2.
15. Articles 6 and 9, Treaty of November 3, 1864.
16. First brief of defendant Government, page 18.
17. First brief of counsel for defendant Government, page 19.
18. First brief of counsel for defendant Government, page 21.
19. First brief of counsel for defendant Government, page 23.
20. First brief of counsel for defendant Government, page 25.
21. First brief of counsel for defendant Government, page 27.
22. State vs. Hall, 17 Wall., U. S., 424–430; Crow Dog, 109 U. S., 555–570; Arthur vs. Homer, 96 U. S., 137, 140; Harford vs. U. S., 3 Cranch, U. S., 109.
23. First brief of counsel for defendant Government, page 29.
24. Conflict of Laws, section 337.
25. Conflict of Laws, section 565.
26. Brief of counsel for defendant Government, pages 31–33.
27. Protocol, article 1.
28. First brief of counsel for defendant Government, page 39.
29. Cours de droit diplomatique, Vol. II, p. 457.
30. Cours de Droit Diplomatique, Vol. II, p. 457.
31. Journal du Palais, year 1839, Vol, II, p. 2 et seq.
32. Story: Conflict of Laws, §§ 364–367, 424, 428, 463.
33. Journal du Palais, year 1830, page 272.
34. Wencke, Codex Juris Gentium, Vol. III, p. 226.
35. Journal du Palais, year 1873, pp. 37 and 38.
36. Story: Commentaries on the Constitution of the United States, Vol. III, section 1508; Kent’s Commentaries, Vol. I, pp. 167 and 287, notes.
37. Tomlin’s Law Dictionary, word “Law.”
38. Blackstone’s Commentaries, Vol. I, p. 53.
39. Austin, Jurisprudence, Vol. II, sec. 1034, p. 183, citing Heineccius.
40. Preparation towards the Union of Laws, Works, VII, p. 731.
41. Holland, Jurisprudence, 75.
42. Marry at vs. Wilson, 1 Bosan and Puller, p. 430, et seq.
43. First brief of consul for defendant Government, p. 37.
44. Marryat vs. Wilson, I Bosan and Puller, pp. 435 and 436.
45. Edye vs. Robertson, 112 U. S., p. 580.
46. Foster vs. Neilson, 2 Peters, U. S., p. 314. Taylor vs. Morton, 2 Curt., U. S., p. 454. Hauenstein vs. Lynham, 100 U. S., p. 483.
47. Edye vs. Robertson, 112 U. S., page 433.
48. Exhibit No. 4, pp. 32 and 33.
49. Whereas nowhere in the treaty of friendship, of commerce, of navigation, and of the extradition of fugitive criminals, concluded November 3, 1864, between the United States of America and the Republic of Hayti, is to be found that it confers upon the citizens of these two countries the right to exercise the judicial assignment of property, there can be concluded from the terms of articles 6 and 9 of the treaty nothing which would authorize the opinion that this right could be invoked in the United States by a Haytian, or in Hayti by an American. In consequence thereof, Americans can not enjoy in Hayti such civil right, the enjoyment of which is attached exclusively to the quality of a Haytian. That in stipulating that the citizens of the contracting parties should have free access to the courts of justice in all cases, wherein they may be interested, on the same conditions that the laws and usages of the country give to their citizens, furnishing security required in the case,” this provision of the article (6) was not intended to grant to the citizens of these two nations the enjoyment of civil rights which do not attach (except) to citizens.—[Translation.]

50. The court of cassation holds that—

    “Whereas the judicial assignment of property is an institution of civil right, the articles 769 (794) of the Code of Civil Procedure and 569 of the Code of Commerce, excepting foreigners from the benefit of this institution, since they do not exercise in Hayti all rights, they can only enjoy privileges derived from natural rights or of mankind, and not those which are derived from purely civil law.

    “Whereas nowhere in the treaty of friendship, of commerce, of navigation, and of the extradition of fugitive criminals, concluded November 3, 1864, between the United States of America and the Republic of Hayti, is to be found that it confers upon the citizens of these two countries the right to exercise the judicial assignment of property, there can be concluded from the terms of articles 6 and 9 of the treaty nothing which would authorize the opinion that this right could be invoked in the United States by a Haytian, or in Hayti by an American. In consequence thereof, Americans can not enjoy in Hayti such civil rights, the enjoyment of which is attached exclusively to the quality of a Haytian. That in stipulating that ‘the citizens of the contracting parties should have free access to the courts of justice, in all cases wherein they may be interested, on the same conditions that the laws and usages of the country give to their citizens, furnishing security required in the case’ this provision of the article (6) was not intended to grant to the citizens of these two nations the enjoyment of civil rights which do not attach (except) to citizens.

    “Therefore it follows from that which precedes that the judgment denounced has made a good and just application of article 769 (794) of the code of Civil Procedure and 569 of the Code of Commerce, and a sound interpretation of the articled 6 and 9 of the treaty above cited.

    “For such reasons, and without there being any necessity of passing on the result of non-acceptance raised by the parties, the court rejects the appeal made by Mr. Charles Adrian Van Bokkelen against the judgment rendered May 27, 1884, by the civil court of Port au Prince, orders, in consequence, the confiscation of the fine deposited, and condemns the said Mr. Van Bokkelen to the expenses, liquidated at the sum of ——, not including the cost of the present decree.”—[Translation.]

51. Lorimer, Institutes of the Law of Nations, Vol. II, p. 530.

52. Le cession judiciare est un bénéfice que la loi accorde au debiteur malheureux et de bonne foi, à quel il est permis, pour avoir la liberté de sa personne, de faire en justice l’abandon de tous ses biens à ses créanciers, nonobstant toute stipulation contraife. (Article 1054, Civil Code of Hayti.)

    * * * Ne pourront être admis au bénéfuce de cession les érangers, les stellionataires, les banqueroutiers frauduleux, les personnes condamnées pour cause de vol ou d’eseroquerie, ni les personnes comptables, tuteurs, administrateurs et depositaires.

    * * * (Article 794, Haytian Code of Civil Procedure.)

    Ne pourront être admis du bénédfice de cession: 1. Les stellionataires, les banqueroutiers frauduleux, les personnes condamnées pour fait de vol ou d’eseroquerie, ni les personnes comptables. 2. Les étrangers, les tuteurs, administrateurs au depositaires. (Article 569, Haytian Code of Commerce.)

53. Merlin, Repertoire de Jurisprudence, Vol. IV, pp. 46, etc.
54. Mackenzie: Studies in Roman Law, 1880, pp. 376, 380; Mackeldy: Roman Law, section 523; Colquhoun: Roman Civil Law, Vol. II, p. 351.
55. Mackelby: Roman Law, section 523; White: Recopilacion of the Laws of Spain and the Indies, pp. 170, et seq.
56. Kent’s Commentaries, Vol. I, p. 243; note citing Story, Commentaries on the Constitution of the United States, Vol. I, pp. 382–442.
57. Story on the Constitution of the United States, Vol. I, sec. 400; Black stone’s Commentaries, Vol. I, pp. 59 and 60.
58. Story on the Constitution of United States, Vol. I, sec. 402, citing authorities.
59. Story on the Constitution of United States Vol. I, sec. 402.
60. Phillimore, International Law, Vol. II, 3 ed., pp. 94–99, citing authorities.
61. Phillimore, International Law, Vol. II, 3 ed., p. 99.
62. Hall, International Law, p. 281.
63. Hall, International Law, p. 281.
64. Kent’s Commentaries, Bk. 1, 13th Ed., p. 175; citing Grotius, b. 2, c. 16, sec. 1; Puff., b. 5, c. 12, sec. 1; Rutherforth’s Institutes, b. 2, c. 7; Vattel, b. 2, c. 17; Eyre, Ch. J., in I Bos. & Pull., 438 and 439; opinion of Sir James Marry at, cited in Chitty Comm. Law 44.
65. Lorimer’s Institutes of the Law of Nations, Vol. 1, pp. 44, 45.
66. Brief of complainant, pp. 19, 20.
67. Note of Hon. Stephen Preston, minister from Hayti, to Hon. Thomas F. Bayard, Secretary of State of the United States, August 15, 1887.
68. “Statement of Facts and Points of Law,” by Hon. Stephen Preston, minister of Hayti, p. 21, et seq.
69. Brief of complainant, pp. 20, 31.
70. Brief of complainant, page 31.
71. Note of Third Assistant Secretary of State, page 8.
72. Decree of the court of Port au Prince, May 24, 1884; decree of the court of cassation, February 26, 1885; annual message of President Salomon; Foreign Relations, U. S., 1885, pp. 499, 535, 536.