File No. 4880/8–12.
Minister Furniss to
the Secretary of State.
American Legation,
Port au
Prince, March 8,
1907.
No. 171.]
Sir: I inclose herewith the correspondence
between this legation and the Haitian Government relative to the
enforcement of the law of 1876, which prohibits foreigners from selling
at retail.
My No. 148, of March 6, 1907, is the joint protest of the diplomatic
corps; other than that, agreeable to the department’s cable instructions
of the 5th instant, I have omitted a paragraph submitted by the other
ministers, which reads:
I wish to inform you that I shall have the necessity of at once
calling my Government’s attention to the new situation created
in this country against my fellow-citizens, and at the same time
the necessity of giving the greatest publicity to the fact that
by inexplicable obstacles the Republic of Haiti has closed her
ports against the freedom of commerce.
Likewise, agreeable to said cable instruction, I have added such other
matter as was not contained in the joint protest, copy of which is
inclosed herewith.
On the 7th instant at 10 a.m., the day and hour designated by the civil
court of Port au Prince for such merchants as had been summoned to
appear to show cause why they should not be fined in accord with the
law, five American firms, as named in my No. 149, of the 6th instant to
Secretary Sannon, copy inclosed herewith, were present and were informed
by the officials of the court that no action would be taken until
further notice, and they were dismissed. Some court official also
volunteered the information that it was the intention of the Government
to have enacted a new law relative to the matter.
It was the report on the street that in view of the protests of the
diplomatic corps the Government would not enforce the law, and late in
the evening of the 7th instant I was informed by the secretary
[Page 733]
of the German legation that
the secretary of interior had confidentially informed the German
minister to that effect. Accordingly, that I might be able to advise the
department if this was true, I to-day called on Secretary Sannon at an
early hour for a confirmation of the rumor, but he refused to give such,
and said my note of the 6th would be officially answered to-day. He
claimed that because of the protests his Government was forced to assert
its rights, while if there had been any endeavor to arrange an amicable
settlement his Government would have acquiesced. I objected to this
statement and called his attention to my interview of the 1st instant,
reported to the department in my No. 165, of the 2d instant, and wherein
I had pointed out the effects of said law upon American firms, its
impossibility of execution, and his (Secretary Sannon’s) remark that “it
would all blow over, etc.” I further stated that I knew that the English
consul-general and the French minister had called upon him, had said
more or less as I had, and had received like replies; that we could but
believe what he had said. The next day, having our firms cited to appear
in court for violation of said law, we had waited until the day before
that marked for their appearance, when, no order having been given to
set the summons aside, we could but think that it was the Government’s
intention to carry out the law and it became our duty to protest.
He then wished to shift the responsibility of the enforcement of the law
on the mayor and city council, and claimed that it rested with them as
to the enforcement of the law. I called his attention to the fact that
if it was as he stated, those officials were a part of the Haitian
Government, and as such responsible to it; that the law was an act of
the General Government; that it was impossible for me to protest to said
officials, and equally impossible for me to inquire of them as to what
disposition they intended to make of the law; that I was accredited to
his Government and not to the city government, and that therefore I
would thank him, if he knew, to inform me, otherwise to find out for me
and let me know, as to what were the intentions of those officials. I
was led to believe that it is the intention of the Haitian Government,
as a result of the joint protest, to discuss their rights, and at the
same time to order the city government to desist in the prosecution,
making it appear that the protest had nothing whatever to do with the
nonenforcement of the law.
To-day officials of the city government have been to the different stores
owned and operated by foreigners and offered to issue to them, other
than the importer’s license sanctioned by law, a wholesale and retail
license as is granted to Haitians and as has been granted at various
times heretofore to foreigners. Though there is nothing in the Haitian
laws which permits foreigners to have such licenses, the foreign
representatives have deemed that as it appears that such procedure will
stop further action on the part of the Haitian officials, it is the best
way out of the present difficulty, and if it does not stop further
action, it is even a stronger argument against such action.
In the discussion of Secretary Sannon’s note of to-day (copy inclosed
herewith), the department will note that Secretary Sannon wishes to make
a distinction which our acceptation of the word “license” does not
permit.
In regard to his contention that to the authorities of the cities is
intrusted the execution of laws, etc., it would seem that he would
[Page 734]
make the said authorities
responsible, and not the Government which enacts the laws and of which
the said authorities are a constituent part. With such a doctrine in
effect, it would be necessary for the foreign representatives to be
accredited to the various city governments as well as the Federal
Government.
The facts are, that in accord with the Haitian constitution the Federal
Congress makes all the laws, those affecting villages, towns, cities,
and districts, as well as those affecting the General Government. This,
of course, has no bearing upon the Federal Government’s responsibility
or lack of responsibility as to the actions of city or other officials
and is stated just as information.
The fact that the law of 1876 has been in force practically ever since
its enactment, but has never been enforced, or at least for some years,
would seem to be sufficient to make the law obsolete and a precedent
sufficient to render its enforcement unnecessary.
The fact that the city governments have issued licenses for retail during
years when there was no law authorizing such, and that other officials
failed to enforce that law, should constitute ample reasons for
objection to its enforcement now. Custom is sometimes the maker and
breaker of law. The facts are that the officials have allowed the law to
die by their failure to enforce it, until now its provisions become a
menace to the established trade of citizens or subjects of friendly
nations.
Not only have the city governments in times past issued licenses
permitting foreigners to sell by wholesale and retail, but, as stated
above, this city government has commenced to-day to again issue such
licenses.
In reference to his other contention, that the law is not unfriendly
toward foreigners, the opposite of that is beyond discussion, for the
reason that all the foreign firms in Port au Prince, the chief business
center of the Republic, have been forced to sell in small quantities,
virtually retail, and I am informed by all our American firms, and the
French, English, German, Dominican, and Cuban representatives have
assured me that they have investigated and find that all their firms
would have to liquidate their businesses if the law of 1876 was enforced
without exception.
No action will be taken as to Secretary Sannon’s note until all the
diplomatic corps have received their respective replies and there has
been an opportunity to discuss the situation in the light of such
replies. The department will be kept advised. No action will be taken
without instructions.
I have, etc.,
[Inclosure l.]
Minister Furniss to the Minister for
Foreign Affairs.
American Legation,
Port au
Prince, March 6,
1907.
No. 148.]
Sir: The enforcement of some articles of
the law of October 24, 1876, on the regulation of direct taxes has
not been possible up to now because of the economic situation of
Haiti, and in the present state of its commerce they are
inapplicable and do considerable injury to citizens of my country
established for many years in this country in retail business.
The principle of impossibility of the execution of that law has at
all times been so well recognized by the Haitian Government that the
latter has even
[Page 735]
delivered
licenses to foreigners for carrying on retail trade. It has thus
bound itself to those foreigners by a kind of contract, and
encouraged them to lay in stock for retail trade. If, however, the
enforcement of the exceptions which have been made to the law is
persisted in, my fellow-countrymen will be obliged to close their
stores and leave the country.
It is presumed that if the enforcement of this law is persisted in,
it will be administered to all foreign merchants alike, otherwise my
Government has instructed me to say that it can not permit
discrimination against its citizens in favor of other foreign
merchants.
I therefore, with the approval of my Government, most energetically
protest against the application of a measure so unfriendly to
foreigners in general and American firms in particular.
In case the law is put into effect, it becomes an indisputable right
for your excellency’s Government to give the merchants affected
necessary time to liquidate their businesses.
I would be very thankful to you to give me a reply to this
communication at your earliest possible convenience.
Please accept, etc.,
[Inclosure
2.—Translation.]
Protest submitted by Dominican, German, French,
and Cuban representatives.
Mr. Secretary of State: The enforcement of
some articles of the law of October 24, 1876, on the regulation of
direct taxes has not been possible up to now because of the economic
situation of Haiti, and in the present state of its commerce they
are inapplicable and do considerable injury to citizens of my
country established for many years in this country in retail
business.
The principle of impossibility of the execution of that law has at
all times been so well recognized by the Haitian Government that the
latter has even delivered licenses to foreigners for carrying on
retail trade. It has thus bound itself to those foreigners by a kind
of contract, and encouraged them to lay in stock for retail trade.
If, however, the enforcement of the exceptions which have been made
to the law is persisted in, my fellow-countrymen will be obliged to
close their stores and leave the country.
In that case it becomes an indisputable right to give them the
necessary time to liquidate.
While protesting most energetically against the application of a
measure so unfriendly to foreigners, I wish to inform you that I
shall have the necessity of at once calling my Government’s
attention to the new situation created in this country against my
fellow-countrymen and at the same time the necessity of giving the
greatest publicity to the fact that by inexplicable obstacles the
Republic of Haiti has closed its doors against the freedom of
commerce.
I would be very much obliged if you would give me an answer to this
communication without delay.
I wish you to accept, Mr. Minister, the assurances of my high
consideration.
[Inclosure 3.]
Minister Furniss to the Minister for
Foreign Affairs.
American Legation,
Port an
Prince, March 6,
1907.
No. 149.]
Sir: In further reference to my note No.
148 of this date, I am directed by my Government to protest on
behalf of Messrs. A. & B. Sada, Elie A. Mansour, A. Lagojannis,
S. & N. Zrik, and C. Lyon Hall & Co., American firms in Port
au Prince, against the summons which has been issued directing them
to appear in court to-morrow at 10 a.m. for having violated section
14 of the law of 1876.
As pointed out in my note referred to, if the law is enforced against
these American firms, it will necessitate their liquidating their
businesses and withdrawing from Haiti.
I am directed by my Government to state that if the law is to be
enforced, American citizens must have a reasonable time to wind up
their affairs.
Please accept, etc.,
H. W. Furniss,
American Minister.
[Page 736]
[Inclosure
4.—Translation.]
The Minister for Foreign
Affairs to Minister Furniss.
Department of State for Foreign Relations,
Port au Prince, March 8, 1907.
Mr. Minister: I have the honor to
acknowledge receipt of your note No. 148, by error dated February 6,
relative to the enforcement of some of the articles of the law of
October 24, 1876, on the regulation of direct taxes, a fact which,
you say, carries considerable injury to your fellow-citizens for
many years established in the country in retail trade.
Before entering the discussion raised by your legation on account of
the enforcement of that law, I will begin by correcting an error
which has slipped in the following passage of your aforesaid
note:
“The principle of impossibility of the execution of that law has at
all times been so well recognized by the Haitian Government that the
latter has even delivered licenses to foreigners for carrying on
retail trade. It has thus bound itself to those foreigners by a kind
of contract and encouraged them to lay in stock for retail
trade.”
If by the English word “licenses” your legation means the documents
delivered by His Excellency the President of the Republic to
foreigners to carry on business or industry whatever in Haiti, I
would observe, in that case, that the license confers only the
permission to carry on a commerce without giving any right to the
foreigner provided with such to do a retail trade. If by “license”
your excellency means to say what we here call “patents,” there
would again be an error to be corrected, because the Haitian
Government has received by no law existing the right to issue
patents, neither to Haitians nor foreigners. And that error is so
plainly shown that I have not discussed the arguments that you have
drawn therefrom.
The issuing of patents is the business of the communal councils, an
elected body that receives its mandate from the people and exercises
its attributes conformable to special laws. And it is to the
communal councils that belongs, by authorization of the law, to
execute, notably, the provisions of the law of October 24, 1876.
Besides, even granting the hypothesis that it may be proven that one
of these communal councils had neglected to execute that law, it
would be inadmissible to draw the conclusion, to wit, that that can
constitute an encouragement to a category of individuals to violate
the provisions of that law. That would, moreover, be contrary to a
universally admitted principle, that no one is supposed to be
ignorant of the law.
This being proven that it is not the Government that issues patents
to merchants, have the communal councils at any time issued patents
to foreigners for a retail business? During the time the law of 1900
was in vigor consignee merchants could carry on a retail trade on
procuring, apart from their patents as consignees, a new special
patent of wholesale and retail merchant. But that right which the
law of 1900 granted was withdrawn from foreign consignees by the law
of August 13, 1903, which modified that of 1900 and reenforced the
provisions of the law of October 24, 1876, which remains at present
in force.
It is necessary to well explain that point so as to dissipate the
misunderstanding which it had caused; on the other hand, your
excellency has comprehended perfectly that the law of 1876 could not
be a law of exception; that is to say, susceptible of being
applicable to only one category of foreigners. Moreover, what
entirely proves this is the steps taken by all the other members of
the diplomatic corps near to this department relative to the
application of that law.
Nevertheless, your excellency protests against the application of
that which you call a measure so unfriendly to foreigners in general
and to the American houses in particular. You add that in case of
the enforcement of the law the Haitian Government should give to the
merchants established necessary time to liquidate. Frankly, to reply
to your excellency, I will say to you that it appears to me
difficult to call a measure unfriendly to foreigners, a law that
maintains all foreigners on an equal footing for carrying on
commerce, and that, while reserving to natives the small retail
trade, has not prevented the increasing prosperity of the large
foreign houses that have not ceased to be at the head of the
commerce of this country.
In that which concerns the eventuality of a general liquidation of
the foreign houses without in nowise contesting the right of those
houses to withdraw from
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this place, the Government does not see how the enforcement of a
local law, voted by the competent public powers in the plentitude of
our sovereignty of an independent state, can be the present cause of
such a determination. In any case, if this eventuality must take
place, which we do not think will be the case, the Government will
adopt such measures as are necessary for the communications that may
be addressed to it under that head.
Please to accept, etc.,
[Inclosure
5.—Translation.]
The Minister for Foreign
Affairs to Minister Furniss.
Department of State for Foreign Relations,
Port au Prince, March 8, 1907.
Mr. Minister: By your dispatch of the 6th
instant, No. 149, dated, without doubt through error, February 6th
last, you have been pleased to inform me that you were charged by
your Government to protest in favor of Messrs. A. & B. Sada,
Elie A. Mansour, A. Lagojannis, S. & N. Zrick, and C. Lyon Hall
& Co., American houses established in this city, against the
summons that have been made to them to appear before the court for
having violated article 14 of the law of 1876.
You have thought it necessary to add that if the law in question is
enforced against these American houses, they will be obliged to
liquidate their businesses and leave the country, in which case you
are further charged by your Government to declare that your
fellow-citizens should have a reasonable delay in which to regulate
their affairs.
In acknowledging the receipt of that communication, I have the honor
to refer you to my dispatch of this day in reply to yours of the 6th
of this month, No. 148.
I take, etc.,
