438.00/409
Memorandum by the Assistant to the Under Secretary of State (Phenix)
On Saturday, October 29, 1927, Sir John Joyce Broderick and Mr. Balfour of the British Embassy discussed with me informally the Department’s note of July 13, 1927 in which in reply to a request for information as to the position of the Department should the British Government present to the Haitian Government on behalf of three of its subjects claims arising out of the acts of the successful revolution of Guillaume Sam, the Department after stating that it had no information as to whether the Haitian Government would seek its advice with respect to these claims added that it seemed to be premature for the Department now to assume any attitude with regard to the matter.
Sir John and Mr. Balfour remarked that they thought no good purpose would be served by addressing a further note to the Department in the matter, but that the Embassy would be glad to be informed of the reason why the Department was unwilling to express any view about the claims and whether any informal adjustment of the matter could be made. They pointed out that so far as they were aware, the United States had never agreed to the theory that a government was not liable for the illegal acts committed by successful revolutionists, and that as this had been the ground upon which the three claims in question were rejected by the Claims Commission, they felt that it might be possible for the Department to take a more sympathetic view of the matter. I said that I knew nothing whatsoever about the claims or their merit, but that I would be glad to look into the question and see what, if anything, could be done.
An examination of the files indicated that a note in reply to the British inquiry was drafted by Mr. Baker on or about May 14, 1927, and approved by Mr. Hackworth,31 the Latin American Division, the Western European Division and Mr. White.32 This draft note contained the following sentence:
“However if its advice should be sought, the Department, as at present informed, would be disposed to recommend to the Haitian Government that further consideration be given to the claims.”
This draft was not sent and the note of July 13, 1927, contained no such assurance.
On inquiring from Mr. White the reason why the original draft had not been sent I learned that the Secretary had been unwilling to commit the Department to any statement which might lead to a reopening [Page 89] of claims against Haiti involving financial burdens beyond that Government’s capacity. Accordingly, inquiry was made by the Department of the High Commissioner as to the total amount of claims which might possibly be presented against Haiti on account of damage done by the successful revolutionists but this information was not forthcoming, a despatch dated July 6, 1927,33 stating that it would require four weeks to establish the exact number and amount of rejected claims for damages caused by the successful revolutionists, and that, furthermore, it would require the employment of a former Secretary of the Claims Commission. The Department did not authorize this work.
I spoke with Hackworth who agreed with me that so far as the questions of international law were concerned, there could be no doubt as to Haiti’s liability for illegal acts by successful revolutionists, so that from the legal standpoint he was inclined to sympathize with the position of the British Government. Mr. White and Mr. Morgan34 were also of the opinion that the Department was warranted in replying to the British inquiry along the lines of the unsent note of May 14, but in view of the fact that the matter had not been broached by the Haitian authorities and the further fact that the Department had declined in its note of July 13, 1927, to express any opinion, they felt with me that a formal communication to the British Embassy taking any different position from that already expressed would be inadvisable.
I suggested to Mr. White that I might informally explain the situation to Sir John or Mr. Balfour pointing out that the Department could not fail to be concerned were anything done to impair the stability of Haitian finances by raising at this time questions which might lead to the presentation by foreign governments of a vast number of claims on behalf of their nationals, and that its point of view was therefore necessarily colored by such a consideration. I suggested that I might say in addition that while the Department could not take formally any position other than that set forth in the note of July 13, 1927, it was willing to have it understood that it would interpose no objection to the consideration by the Haitian Government of the three claims in question provided (1) that the claims would be settled as indicated by the British Chargé at Port au Prince for not more than $5,000; (2) that, as also indicated by the British Chargé, these three claims represented the only claims which the British Government would present; and (3) that their presentation, discussion and adjustment by the Haitian Government could be conducted with such discretion as to avoid any stirring up of the general claims question. I also suggested that coupled with the foregoing statement the warning should be given [Page 90] that should the presentation by the British Government of these claims and a possible settlement thereof lead to the submission of claims by other governments, the Department would have to reconsider the matter in the light of the new circumstances in view of its interest in the financial stability of Haiti.
Mr. White saw no objection to this procedure, and after discussing the matter with him, Mr. Morgan and Mr. Hackworth, all of whom were willing to endorse the position taken in the Department’s unsent note of May, I spoke to Mr. Olds35 who authorized me to take the matter up with the Secretary.
Accordingly, I discussed the question with the Secretary this morning and obtained his approval to explain informally to the British Embassy the position of the Department as outlined above, and this afternoon I spoke with Mr. Balfour along the following lines:
The Department is of the opinion that it would be to the interest of all concerned to regard claims against Haiti arising out of the revolution as definitively settled by the Claims Commission. Its primary interest is in the financial stability of Haiti, and it believes that nothing should be done to impair that stability. It understands that there are claims of nationals of other Governments against Haiti arising out of circumstances similar to those involved in the claims in which the British Government is now interested, but it does not know the number or amount of such claims. So far as it is advised no other Government has sought to present such claims diplomatically after their rejection by the Claims Commission. In these circumstances the Department is unwilling to take any position with respect to the three claims mentioned by the British Embassy which would commit it, even by implication, to recognize the validity of an indeterminate number of similar claims if presented by other Governments. Its attitude in the matter is purely practical, and is not in any sense based upon concurrence in the conclusion of the Claims Commission that a Government is not liable for illegal acts done by successful revolutionists.
It is difficult to see how an adjustment of the three claims in which the British Government is interested could be effected without stirring up “sleeping dogs”, a result which the Department feels would be unfortunate for every one concerned. With respect to the three claims listed in the British note of March 16, 1927, and previous correspondence, the Department understands that the British Chargé at Port au Prince has stated that he would settle for not more than $5000, and that they represent all the claims in which the British Government is interested. Were the question before the Department one involving solely these three small claims, it would not hesitate to say that it would recommend reconsideration of the claims if its advice were [Page 91] sought by Haiti, and even in the present circumstances it does not intend to take affirmative steps to discourage the Haitian Government from reconsidering these three claims if they should be pressed diplomatically. Furthermore, if settlement of these three claims could be effected without stirring up other claims, the Department would interpose no objection to such settlement, but it should be clearly understood that if the British Government presses these claims with the result that a considerable number of other similar claims are presented by other Governments on behalf of their nationals, a new situation would arise requiring the Department to re-examine the problem in all its aspects and with full freedom of action, my informal and oral discussion of the matter in no wise committing the Department or prejudicing its ultimate decision.
I concluded by repeating again that we felt that it would be advisable if all Governments should regard the claims question as settled by the Commission and should refrain from pressing diplomatically claims which had been rejected by the Commission, and that we would be pleased if the British Government should see eye to eye with us in this matter. I explained that the position taken in our note of July 13, 1927, was not based upon merit or lack of merit in the claims in question, but upon purely practical grounds. I said that Doctor Cumberland had discussed the matter with the Department when he was here last summer, and had expressed himself as fearful lest a flood of claims would be presented were these three claims settled.
Mr. Balfour said that the Embassy had not been able heretofore to understand why the Department had taken the position it had, but that my explanation made it perfectly clear, and he thought the considerations I had advanced were very potent. I told him that so far as we were concerned the correspondence was closed with our note of July 13, 1927. He said that he understood that, and it was for his Government to decide whether to go ahead with the matter in Haiti. He added that in all the circumstances he did not believe we would care to indicate to Doctor Cumberland that we would have no objection to the settlement of the claims, and I acquiesced in that inference.
The situation therefore remains as set forth in the Department’s note of July 13, 1927, except that the British Embassy now understands (and sympathetically if Mr. Balfour’s attitude is any criterion) the reasons which led the Department to take the position it did.