Mr. Day to Mr. Powell.
Washington , December 2, 1897 .
Sir: I have received your No. 85, of November 16 (misdated October 16), in relation to the note you addressed to the Haitian secretary of foreign affairs on November 11, protesting, on stated grounds, against the tax levied upon certain American merchants in Haiti because of their employment of foreign clerks. Copy of that note had already been received with your No. 81, of November 12, and on reading it the Department inferred that you had written it before the receipt of my instruction No. 49, of November 2, in relation to the character and effects of the tax in question—inasmuch as your argument followed the general lines of my previous instruction No. 34, of October 11, in regard to discriminations against foreign merchants as compared with Haitian merchants doing the same kind of business, and made no reference to the later instruction which dealt with the specific discriminations [Page 396] against foreign clerks as compared with Haitian clerks. The correctness of this inference is confirmed by your present dispatch No. 85.
I appreciate the difficulty you have experienced in interpreting the diverse conclusions of those two instructions, Nos. 34 and 49, treating as they did of distinguishable classes of complaint, which although alike based upon obvious violation of the treaty rights of our citizens in Haiti, were separable as relating in the one case to discrimination against the trade of the foreign merchant and in the other to the discrimination against the employment of foreign clerks by any merchant. Indeed, when my instruction No. 34 was penned, the Department hardly possessed sufficient data to enable it to intelligently differentiate these two classes of treaty violation. The text of the Haitian law of October 27, 1876, which accompanied your No. 49, of October 12, 1897, touching Mr. Metzger’s case, and which was not received here until October 27, supplied the necessary information and led to a connected study of the whole subject.
My instruction No. 34, of October 11, dealt with the facts presented in your No. 35, of September 24, and properly instructed you in respect to the tax levied upon foreign merchants, which you reported to be “many times greater than that imposed upon native merchants.” The protest you addressed to Mr. Solon Menos on November 11 correctly applies that instruction to the case you state, namely, that there is “a tax levied upon American merchants higher than that imposed upon Haitian merchants in conducting their business,” and such being the case, you correctly referred to the position heretofore taken by this Government in reference to the course of the Haitian legislation in “enacting a higher tax upon American merchants * * * when such tax was different from that imposed (upon) or paid by the Haitian merchant.” If, as may very possibly be, our merchants in Haiti suffer such discrimination, your protest is sound as a general proposition, although precise instances thereof be not adduced. It would be well to report to the Department the facts of any such discrimination as they come to your knowledge.
Your error, if it may be so termed, lay in coupling the matter of the license fee levied upon foreign clerks with the general question of discrimination against foreign merchants. As shown in my No. 49, of November 2, the foreign clerks’ license tax is peculiar and anomalous, in that, while directly discriminating against all foreign clerks, it is vicariously collected of the merchant employing such clerks, whether the merchant be a Haitian or a foreigner. At least, that is the prescription of article 11, of the law of October 27, 1876. The Department is not advised of any subsequent modification of the law or relaxation in its enforcement whereby such foreign clerk tax is only collectible from foreign employers. If this, however, be the case, your protest of November 11, 1897, rests on sound premises throughout. You should report upon this point.
I see at present no need of withdrawing or modifying your protest of November 11. It is for the Haitian Government to meet your statements and arguments. If the Haitian reply should be confined to the specific question of the foreign clerks for whose license fee Messrs. Ch. Weymann & Co. are held responsible, and should allege that a Haitian merchant in the like case would be similarly and equally burdened, further discussion may turn upon the discrimination against foreign clerks themselves, for as to this point good ground of specific protest would subsist if those clerks (who you now state are not American citizens) should be citizens or subjects of a power entitled by treaty to [Page 397] the most-favored-nation treatment in this regard, inasmuch as the positive rights of American citizens could be invoked by way of equal favor in their behalf. As said in my No. 49, of November 2, if the employed clerk be an American citizen, or a citizen of any country entitled by treaty to claim exemption from the discrimination in question, transference of the discrimination to the American employer by making him liable for the payment of the tax “works in effect a discrimination founded upon an initial wrong, and, therefore, is an invalid demand, to be opposed.”
In the absence, however, of a full showing of all the facts and circumstances of the cases which originated your protest, giving the information which the concluding paragraph of my No. 49 invited you to furnish, the Department is unable to instruct you definitely touching your further treatment of the matter, and the more so as the character and arguments of the Haitian reply to your note of November 11 can not well be foreseen.
It would seem better, on the whole, that you let your protest stand, and that, on receipt of the Haitian reply, you merely transmit it to the Department for instructions, acknowledging it meanwhile and stating that you have so referred it. This will give ample opportunity for examination and decision, and the Department’s rejoinder can be so phrased that you may simply communicate it by reading and leaving copy, if that course be deemed proper.
Respectfully, yours,