Mr. Battiste to Mr. Hay.

No. 1338.]

Sir: I have the honor to transmit herewith copy, with translation, of correspondence that has passed between this legation and the Haitian Government on the subject of the license tax law recently promulgated.

In his reply to my protest (see inclosure No. 1) against the refusal to grant to two of our citizens the necessary license for the transaction of their business the Haitian secretary of state takes the ground that Article V is only a continuation of Articles III and IV of the treaty making certain provisions for the safeguard of the interests of the citizens of the contracting parties in case there should be war between the two countries, and that it is Article II that would possibly apply to the case of our citizens, the favored-nation clause being therein indicated, had not the treaty with the Republic of Santo Domingo, which placed the Dominicans on the same footing with the Haitians, come to an end on the 20th of January, 1901; therefore all foreigners in Haiti are on the same footing and subject to the law of August 11, 1903.

I am, etc.,

Alexander Battiste.
[Inclosure.]

Mr. Battiste to Mr. Férère.

Sir: I have the honor to hand you herewith copy of two letters received from two of our citizens doing business in this city, by which they bring to my notice a refusal on the part of your honorable colleague of the department of finance and of commerce to issue to them the license necessary for them to carry on their commerce unless they comply with the articles 63 and 64 of the revenue law of August 1, 1903.

As the aforesaid articles apply only to foreigners doing business in the country, and Haitians are exempted from this tax, I feel called upon to protest against this discriminatory tax thus imposed upon our citizens as being in contravention with Article V of the treaty of September 3, 1864, which stipulates that our citizens “shall not be compelled to pay any contributions whatever higher or [Page 375]other than those that are or may be paid by native citizens,” and the principle of which has moreover been admitted by your Government and indorsed by one of your predecessors in a dispatch dated May 3, 1898.

* * * * * * *

Therefore, in virtue of our treaty and the subsequent indorsement thereof by your Government, I most respectfully request that you obtain for these two American citizens and all others who may hereafter apply for same the necessary license exempt from this discriminatory tax.

Please accept, etc.,

Alexander Battiste.
[Subinclosure 1.—Translation.]

Messrs. Kouri & Co. to Mr. Battiste.

Mr. Minister: We have the honor to inform you that the minister of finances refuses to grant us the license for the period 1903–4, if we do not conform to articles 63 and 64 of the law of August 11, 1903.

In consequence, we have the honor to beg you to kindly transmit our complaint to the minister of foreign relations to the end that right be given to our just request in virtue of the clauses of the treaty of 1864 between the United States and Haiti.

Please accept, etc.,

N. Nader.

(For M. J. Kouri & Co.)
[Subinclosure 2.—Translation.]

Mr. Ajamie to Mr. Battiste.

Mr. Minister: I have the honor to inform you that by his dispatches Nos. 1781 and 1794 of date of the 3d and 6th instant the minister of finances has refused to me the license for the period 1903–4, notifying me that it was necessary for me to conform to the law of August 11, 1903.

In consequence I have the honor to beg you to kindly transmit my complaint to the minister of foreign relations that right may be given to my just request, in virtue of the clauses, of the treaty of 1864 between the United States and Haiti.

Please accept, etc.,

M. N. Ajamie.
[Inclosure 2.—Translation.]

Mr. Férère to Mr. Battiste.

Sir: I have the honor to acknowledge the receipt of your dispatch of the 13th instant, under cover of which you have transmitted to me two letters of two American citizens, merchants established in this place. I have seen that your citizens have brought to your knowledge that my colleague of finances and of commerce refuses to grant them the license necessary for the carrying on of their commerce, unless they conform themselves to articles 63 and 64 of the law of August 11, 1903.

In transmitting to me these letters you have kindly said to me, in support of the complaint of your citizens: “As the aforesaid articles apply only to foreigners doing business in the country, and that Haitians are exempted therefrom, I feel myself called upon to protest against the application of this tax to American citizens, because it is in contravention with Article V of the treaty of September 3, 1864, which stipulates that American citizens shall not be called on to pay any contribution higher or other than those that are or may be paid by native citizens,” and continuing you add: “The principle of this article has been moreover admitted by your government and indorsed by one of your predecessors in a dispatch” of which you cite the paragraph [Page 376]relative thereto. Then you conclude: “In virtue of our treaty and of the adhesion given by your government to the interpretation of this article, I request most respectfully that you obtain for these two American citizens, and for all others who may in the future find themselves in the same case, the necessary license, exempt from this tax.”

I am truly pleased, sir, to have to-day the opportunity to confer with you on a question of which the solution tends as much to the reciprocal interests of both nations as to the conservation of the good renown of loyalty and equity that always accompany yours in its relations with others, and for that I would ask of you the permission to make a little analysis of the treaty of 1864, in the part which treats of that which forms the object of your dispatch.

The 3d of November, 1864, the two Republics, Haiti and the United States of America, signed an agreement, the rubric of which bears: “Treaty of friendship, commerce, and navigation, and for the extradition of fugitive criminals between the United States of America and the Republic of Haiti.” If we carefully review the clauses contained in that important diplomatic instrument, we will find after Artile I—which proclaims that there shall be perfect, firm, and inviolable peace and sincere friendship between the two countries—we find Article II, of which I transcribe the tenor:

Art. II. The Republic of Haiti and the United States of America, desiring to live in peace and harmony with all the other nations of the earth, by means of a policy frank and equally friendly with all, agree that any favor, exemption, privilege, or immunity whatever in matters of commerce or navigation which either of them has granted, or may hereafter grant, to the citizens or subjects of any government, nation, or state, shall extend in identity of cases and circumstances to the citizens of the other contracting party, gratuitously, if the concession in favor of that other government, nation, or state shall have been gratuitous; or in return for an equivalent compensation, if the concession shall have been conditional.”

As we see, there is not any part of this article mention of the most-favored-nation clause, and yet it can not better indicate the thing without naming it. This clause, in fact, is visibly to be deduced from the terms of the article, and it is evident that in basing on it a claim to favorable treatment one or the other of the two parties find themselves limited to the strict and rigorous interpretation of the treaty.

Pursuing further our examination, we reach Article III, which, foreseeing the case of war between the two nations, fixes the conditions under which war should be declared, the delay granted to merchants and other citizens and inhabitants, respectively, on each side, to withdraw with their goods and movables, etc., the whole comformable to the principles known in the matter.

Article IV, which is a continuation of the preceding, specifies that “neither money, debts, shares in the public funds or in banks, or any property of either party shall ever in the event of war or national differences be sequestered or confiscated.” But is that all that there is to be foreseen in case of a national difference, or if through some fatality (which God forbid!) the two nations come to be at war? During the time the reign of force shall last will there not be committed abuses, violations? The foreigners, particularly the citizens of the enemy state, will they not be forced sometimes into military service? Will they not be often forced to subscribe to loans and subjected to contributions other than those existing in time of peace? Such are the questions to be foreseen in a treaty, and Articles III and IV are devoted to the purpose of regulating the different conditions raised by a state of war, as well as Article V, which only comes in to complete, so to say, the nomenclature of the things in regard to which the citizens of the two states should be equally treated on one side and the other.

Therefore, sir, you see that Articles III, IV, and V of the treaty of 1864 only aim at the one and the same thing, the regulation of a state of war, if that state should ever exist between our two countries. It is true that national differences mean civil war, but the conclusion is still the same—namely, that in one case as well as in the other, the citizens of each of the high contracting parties are not to be treated more favorably than those of the other. The true, exact sense of the treaty being thus established, it only remains for me to call your attention, sir, to the fact that you have erroneously based the request which you address to me in favor of your citizens on Article V. But as the case of these gentlemen, merchants established in Port au Prince, bears rather on that which is foreseen in Article II, I beg you to kindly permit me to present to you another consideration.

[Page 377]

Doubtless for some time this difference in the interpretation of the treaty of 1864 did not come to any very striking result, because the Dominicano-Haitian treaty still existed, and those who had, by virtue of the treaty, obtained at the time the favorable treatment lived on the same footing as the Haitians; so that everybody without excepting those who have no treaty with us received the same treatment, no one perceiving that such a state of affairs was rather to be attributed to the law of 1900 on direct taxes which had just assimilated foreigners to Haitians.

But since that treaty with our neighbors has come to an end on January 20, 1901, and particularly since the law of 1900 has been repealed and replaced by that of 1876, affairs have of course resumed their old condition—that is to say, that the favorable treatment exists for no one in Haiti, and that in general all foreigners whatsoever are to-day on the same footing, equally subjected to the law of August 11, 1903.

If, as you have done me the honor to affirm, the principle of Article V has been admitted by the Haitian Government and indorsed by one of my predecessors, it is a fact absolutely regrettable, due to weakness or inadvertence, which can not be a law in spite of a written text approved and sanctioned by two sovereign nations, and a simple dispatch of a minister can not have the force to modify so thoroughly.

I trust that these few explanations will suffice to throw light on the erroneous interpretation which had been given without consideration of the formal text of our treaty, and in the hope of receiving your entire approbation, I beg you to accept, etc.,

M. Férère.