Mr. Terres to Mr. Hay.

No. 1376.]

Sir: I have the honor to transmit herewith copy with translation of the reply of the Haitian Government to the dispatch of Mr. Powell relative to the interpretation of Article V of the treaty of 1864.

In his reply the Haitian secretary of state, after setting forth his views of the question in a lengthy argument, concludes by saying that American citizens shall continue, as since 1898, to be assimilated to Haitian citizens and that, conformable to the reserve indicated in the correspondence exchanged between this legation and his department at the time, the Haitian Government will soon present to our Government a proposal to modify the treaty of 1864.

I am, etc.,

John B. Terres.
[Page 382]

Mr. Férère to Mr. Powell.

Mr. Minister: I have the honor to acknowledge the receipt of the dispatch that you addressed to me on the 20th of November last to draw my attention to the interpretation given by the Haitian Government to the new license law and to observe at the same time that it is in conflict with the terms of the treaty that exists between the two Governments.

I must first beg you, Mr. Minister, to have the high courtesy to excuse my delay in replying to you. On account of the importance of the communication that is the object of your dispatch, you will admit that some time was necessary for me to acquaint myself with what had been done and to search the archives of the department, the elements with which to enlighten my judgment. To-day, that I am enabled to make known to you the opinion of my Government on the subject in question, I beg you to kindly lend me all your attention.

It appears from my investigations that the Government of Haiti, through one of my predecessors, Mr. Brutus St. Victor, was brought in 1898, and after a rather long discussion, to admit the interpretation given by the Government of the United States to Article V of the treaty of 1864, but my intimate conviction, shared by the whole Government, remains just as it is stated in my dispatch of October 20 last, written to Mr. Alexander Battiste, in charge of the American legation at Port au Prince; that is to say, that it is a judicial error to base on Article V, instead of Article II, the reciprocal condition of American citizens in Haiti and of Haitian citizens in the United States, since the most-favored-nation clause that establishes that condition, and, furthermore, only specially applies to the commercial system, is only to be found in Article II. When I thus express myself, Mr. Minister, I base myself not only on the literal sense of the words and on the principle of public law that governs the matter, but also on the written text of the treaty of 1864 as it is to be found in the compilation of treaties and conventions concluded between the United States of America and other powers, published under the eye and seal of the Department of State itself. In fact, in that compilation, which I have at this moment in hand, I see alongside of each article a rubric indicating the subject dealt with in the article. Thus Article I, to begin with, bears the rubric peace and friendship; Article II, most-favored-nation privilege; Article III, case of war; Article IV, property not to be confiscated (in case of war, of course, as confiscation can only take place in that case); Article V, exemption from military service. For more precision, I transcribe textually Article V:

Article V. The citizens of the high contracting parties residing or established in the territory of the other shall be exempt from all compulsory military duty by sea or by land, and from all forced loans or military exactions or requisitions; nor shall they be compelled to pay any contributions whatever higher or other than those that are or may be paid by native citizens.

Who does not see that the contents of this Article V, the same as the two preceding, provides for a state of war, and not commercial conditions already provided for in Article II? Can it be reasonably supposed that two nations, friendly and living in peace, would exact military service of each other’s citizens; and how can it be alleged that the special clause of a diplomatic act, which exempts these citizens from all compulsory military duty, contemplates a commercial system and not the particular condition resulting from a state of war? No; it is only in case of war that such exactions could be justified, and it is certainly in order to guard against this possible exigency that the two States signatory to the act of 1864 have specified therein, beside the exemption from military service, other guarantees, such as the prohibition of subjecting their respective citizens to forced loans and exactions, and of compelling them to furnish higher or other contributions than the natives. This last word, contribution, is doubtless capable of different meanings, and has afforded grounds for the interpretation contrary to ours; but, coining in an article and, moreover, in a sentence which only deals with acts of war, the only meaning it can bear in this particular case is this: “That which is given to the enemy for protection against military executions.” (Littré.) Therefore, reason, logic, good sense, and equity all unite here in support of the interpretation that I [Page 383]maintain, without taking into account that in no convention of this character the favorable treatment can be given and acquired only for a fixed time; while the assimilation of the respective citizens of our two States, as established by Article V, although applicable only to the case of war (which God forbid), appears, according to your interpretation, to be made perpetual, like the friendship and the peace of which it is only the corollary. The difference between the condition which is created by Article II and that which springs from Article V, one is special, and relates to the commercial and industrial treatments; the other applies to all the citizens without distinction in case of war between the two countries.

Although I am not confident, Mr. Minister, of my ability to cause the Federal Government to alter a decision—bad, it is true—already reached and accepted by the two parties, I nevertheless cherish the hope of convincing you personally of the justice of the cause I am defending. I further venture to hope that acting under the high sense of justice and equity of which you have so often given proof, you will take a favorable view of the position of the small Haitian nation—friend and admirer of the great American nation—which, on account of its having at one time yielded to the impulse of a too justly inspired confidence, is now threatened with a loss of the privileges that all States ordinarily reserve for their citizens only, and induce your Government to concur in the said views. For it is certain that if the Americans are assimilated to the Haitians, the French who have a treaty with us, signed in 1838, which contains the most-favored-nation clause (which, however, is not to be confused with assimilation) will not fail to claim the same treatment, and God only knows what attacks from other parts will be directed against us.

If, therefore, the Federal Government, notwithstanding our just and legitimate observations, adheres to the interpretation of article 5 of the treaty of 1864, as it has done in the past, it becomes my duty, Mr. Minister, to inform you that American citizens shall continue, as they have since 1898, to be assimilated to the Haitian citizens, and that conformably to the reservation indicated in the correspondence exchanged at the time between your legation and my department, the Government of the Republic of Haiti will soon take occasion to present to yours a proposal to modify the important diplomatic instrument that binds our two countries.

Please accept, etc.,

M. Férère.