Legal problems in the relations of United States with Hayti

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Legal problems in the relations of United States with Hayti
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Maxey, Chester C ( Chester Collins ), 1890-1984
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Foreign relations -- Haiti -- United States   ( lcsh )
Foreign relations -- United States -- Haiti   ( lcsh )
Relations extérieures -- Haïti -- États-Unis   ( ram )
Relations extérieures -- États-Unis -- Haïti   ( ram )
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Chester C. Maxey.
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but quite without success. Thereupon he addressed him-

self to the Senate, where the case was reported adverse-

ly by the Committee on Foreign Relations and consequently

no action taken. Rebuffed, but unperturbed, Pelletier(or

more correctly, his counsel) made a second appeal to the

House of Representatives, submitting additional documents.

This plea the House met, on January 11, 1828, with a re-

solution refusing to make any recommendation on the claim.

Pelletier then went to the Department of State for the

fourth time. His case was referred to Mr. O'Oonnor, Solicit-

of for the Department of State, who on March 29, 1878 reported

that there was sufficient evidence to warrant calling on the

Haytian government to redress the claimant. Mr. Evarts,

Secretary of State, thereupon instructed Mr. Langston, com-

missioner to Hayti, to press the claim. The latter pursuant

to these instructions asked for arbitration of the claim, but

closed his communication with these words: "I am instructed,

then, should your government desire to make no further an-

swer to the justice of the claim of Captain Pelletier, to

propose to it a prompt and impartial arbitration of the

matter, and in default of such arrangement I am further in-

structed to state that the Government of the United States

will require its satisfaction."

Hayti, while reluctant to consider arbitration, yield-

ed to the threat of force. An arbitration protocol was ac-

cordingly entered into on May 24 1884, covering both the

Pelletier and Lazare claims, the latter of which will be

discussed later. The protocol designated Mr. William Strong,








eluded, however, that there was a contract which the local

authorities were bound in good faith to carry out.

Work, in fact, was begun on the project, but was stopped

by the communal magistrate on the ground that a one inch pipe

could not be laid without the payment of certain license taxes.

The arbitrator held that this was obviously an aftertgought

on the part of the municipal authorities, possibly introduced

to release the themselves of the contract. They also asserted

that Metzger was in arrears in his water rent, which was shown

to be false,

Upon the matter being taken up with the State Department i

of the United States, the Haytian minister in an interview with

the Solicitor for the State Department gave assurance that the

commune would furnish the water if Metzger would permit the

cost thereof to be credited on an amount of $218, due Metzger

from the commune. Secretary Hay advised in favor of such a

settlement, but thought that Metzger should not waive his claim

for damages. Mr. Powell, minister to Hayti, took the matter up

and reported on January 17, 1899 that the Council of Ministers

had agreed to adjust the matter, leaving Metzger free to claim

damages for any failure of the water supply theretofore. The

Haytian minister to the United States, being advised of his

assurance in 1898 that the matter would be attended to, replied

that it had already been taken care of, which'was a mis-

apprehension. No successful attempt to carry out the contract

was made until January 1899.

The defense of the Haytian government was that it had no

legal power to coerce the commune, and that its agreement through

its minister was only a promise to use its good offices. But t







and subsequent disorders occurred it was found necessary for

American marines to take possAssion of the forts dominating

Port au Prince, and later Admiral Caperton took over the ad-

ministration of the customs house at Port au Prince.

Late in August the announcement was made that the United

States had asked Hayti to accept at once a convention estab-

lishing American control of Haytian finances. On September 16,

1915 this instrument was signed by the plenipotentiaries of
both parties. On November 12, 1915 it was ratified by the

Haytian Senate and on February 28, 1916 by the Senate of the

United States. The provisions of this treaty included: (1)

A Haytian receivership of customs under American control; (2)

the establishment of a native constabluary force under American

officers; (3) American control of Haytian finances to the

extent necessary to protect the Haytian people and foreign

creditors; (4) the treaty to continue ten years, with a possibil-

ity of extension at the end of that time, if either signatory

should so desire.

But without waiting for the signature and ratifiaction of

the above-mentioned convention the American forces assumed con-

trol of the customs houses. After the treaty went into e. jct,

the constabulary was organized and the finances of the country

reorganized. Several times during 1916 it was necessary to use

American forces to support Dartinguenave against KExxKRR rev-

olution, but conditions have since become more peaceful.





Files of the New York Times.

International Year Book, 1914, 1915, 1916.






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LEGAL


PROBLEMS


THE RELATIONS 0~


UNITED STATES


with


HAYT I


CHESTER C. MAXEY
1,i







a retired justice of the Supreme Court of the United States,

as arbitrator. The arbitration sessions under the protocol

began on November 10, 1884 and continued until xxtKi April

27, 1885. Pelletier entered claims totalling $2,466,480. On

June 20, 1885 the arbitrator made his award, holding (11 that

Pelletier was not entitled to any damages for the seizure and

confiscation of his ship; but(2) that he was entitled to

damages for his imprisonment and for other injuries inflicted

by Hayti as a punishment for his attempted piracy and slave-

trading. The amount of damages assessed by the arbitrator

was $57,250.

This award was duly filed in the Department of State,

but the Haytian government at once remonstrated against its

execution, protesting that it had submitted to arbitration

only to escape the application of force by the United States

and that it was impossible to pay the claim without national

disgrace. Mr. Bayard, who in the meantime had become Secre-

tary of State, reinstituted inquiry into the matter, and his

findings were such that he decided to refuse to press the

execution of the award.

Facts Found by Arbitrator and Senate Committee. Pelletier

was a native of France, but claimed to have been naturalized h

New York in 1852. Both Mr. Seward and the Senate Committee

declined to accept this claim of naturalization, because of

irregularities in the papers; but the arbitrator does not

seem to have considered it at all, probably because it was

not argued before him.

In 1860, Pelletier, whose record as a navigaotr was some-








the arbitrator held that it was a diplomatic agreement between

the two countries which should have been carried out. He

pointed out that the matter was presented to the Haytian of-

ficials through the Haytian minister at Washington, and that

they then made no claim that the commune alone was respon-

sible, but assumed full responsibility. The Haytian minister

had full power to act in the matter, and there was no question

that in acting he led the American officials to believe that

his government was going to assume full responsibility.

The arbitra or found that Metzgdr had sustained through

the enforced idness of his mill, and assessed the amount at

815,000.


The Tax Seizure. Haytian law provided tha foreigners

permitted to exercise any other industry than commerce should

pay a tax equal to double the amount assessed upon Haytians in

the same occupation; and also'that foreigners in the service

of manufacturers, traders, or merchants should pay a specified

tariff or license. The person employing them was made liable

for the payment of the license, which must be taken out annually,

the fees being payable at the office of the receiver of the

--_onmmune_..Metzger and Company employed several foreign work-

men in their mill. On January 6, 1897 several writs were left

at their place of business for fiVe workmen to appear before

a justice of peace to pay the year's license, and also fines

with costs for non-payment. No attention was payed to these

proceedings. On January 16, 1897 representatives of the

justice of peace appeared on the premises and, claiming

judgment by default, demanded payment. The demand was not com-








Mr. Bayard Overruling the Award. The first objection whioh

Mr. Bayard urged against the award was that it was unwarrant-

ably narrow. There was, in his opinion, nothing in the language

of the protocol to oblige the arbitrator to confine himself to

a determination of the case solely on points of international

law. The purpose of the arbitration was to obtain a thorough

and impartial investigation of.the merits of the case, which the

protocol was to insure should be conducted according to the

principles of international law as of the time of the trans-'

- actions in question. There was nothing to preclude a consider-

ation of whether Pelletier had committed offenses against

Haytian law.

Moreover, Mr. Bayard insisted, there was ample warrant at

international law for the Haytian courts' assumption of jur-

isdiction over Pelletier. He objected to Mr. Strong's in-

terpretation of the law of nations in the matter of juris-

diction over foreign merchant vessels in territorial waters, and

cited the case of Regina v. Cunningham, that of Regina v. Keyn,

and that of Wildenhus to establish the doctrine that the local

courts have jurisdiction over offenses committed on foreign

merchant vessels within their territorial waters, and especially

those which menace the peace of the port.

Pelletier, argued Mr. Bayard, had committed no overt act

of enslavement or piracy in Haytian waters, but he certainly

was guilty of a criminal attempt to do so; and criminal attempt

is justiciable both under our own law and that of Hayti. More-

over, it was the kind of criminal attempt which was offensive to

the peace of the port, and therefore was clearly justiciable

by the Haytian courts, regardless of whether it was at the same







The Metzger Case


History. This case involved three claims of

John D. Metzger and Company, an American firm, against the

Haytian government. They were all arbitrated under.the

protocol of October 18, 1899, which in addition to the

usual provisions for the submission of evidence, etc.,

nominated as arbitrator, Honorable William R. Day, now

a member of the VprKmn Supreme Court of the United States.

The protocol also provided for an award by June 1900, and

when this proved impossible, there was negotiated a sup-

plementary protocol arranging an extension of time.


The Lumber Claim. In the autumn of 1896 the city

of Jacmel was devastated by a fire, whereupon the Govern-

ment of Hayti indicated its purpose to supply $20,000 for

relief. A local relief committee was assembled in Jacmel

to consider methods of relief, and to this committee John

D. Metzger and Company submitted an offer to supply lumber

to sufferers to an amount of 420,000. The committee gave a

memorandum provisionally accepting this offer, which was con-

tingent upon the ratification of the Haytian government with

whom it provided the mode of payment was to be arranged. This

was on December 7, 1896.

Metzger and Company then communicated with the Secretary

of State for Interior at Port au Prince, requesting the

favorable action of th6 government upon this memorandum, but

received no written answer to their communication, though it

seemed that they did receive some sort of indirect assurance

of favorable action. On January4, 1897 Metzger and Company

addressed a communication to the President and Council of






The Van Bokkelen Case


History of Case. C.A. Van Bokkelen was an American

citizen domiciled in Hayti. Some time in 1884 judgments

amounting to some $3,000 were recovered against him in the

Haytian courts. Being unable to pay, he was, under Haytian

law, arrested and imprisoned. He sought to take advantage

of a provision of the law permitting debtors to make an

assignment of their assets to creditors and thus escape

imprisonment, but the court held that under the Haytian law

this privilege availed only to Haytian citizens. Van

Bokkelen claimed that this right was guaranteed him by certain

provisions of the treaty of 1864 between the United States

and Hayti. Eventually the Haytian courts decided against this

claim also.

The Department of State, after awaiting the decision of

the Haytian Court of Cassation, requested Van Bokkblen's

release on the ground that the decision was irreconcilable

with international law and that it could not be taken as

defining the duties of Hayti as a sovereign state under

her treaty stipulations with the United States. MaintAining

that the treaty guaranteed citizens of the United States the

same rights before Haytian tribunals that Haytian citizens

were entitled to, the Department took the position that the

treaty was the supreme law of the land in Hayti and would
have to overrule a prior statute. It was pointed out that

under the treaty the United States accorded to Haytian cit-

izens equality of privilege in her own courts, and that the

treaty provided for recipe 'cal advantages. The Department

also took the far less tenable ground that imprisonment for

debt where no criminal offense was alleged was contrary to the







give the Haytian courts jurisdiction.

His conclusion that the Haytian courts did not acquire

jurisdiction is based upon these propositions: (l) "It is a

general rule of the law of nations that offenses committed

by a vessel while in the port of a foreign country are

justiciable, or triable, only in the courts of the country

to which the vessel belongs." This rul9,he avers, follows

from the accepted principle that a vessel is regarded as

part of the territory of the country to which she belongs,

though he admits two exceptions---offenses against the peace

of the port and piracy. (2) The acts set forth in the in-

dictment do not fall within the exceptions to the rule. The

offence against Cortez, says the arbitrator, can by no

stretch of the imagination be construed as piracy against the

law of nations, whatever it may have been at Haytian law, for

it was committed in British territorial jurisdiction and

not on the high seas. Neither was his attempted slave trading

xadxpirazy an act of piracy under the law of nations at the

time the transactions took place. As to offenses against the

peace of the port, he was at most guilty of unexecuted evil

intentions.

Holding such views, the arbitrator was impelled to de-

cide that the assumption of jurisdiction over Pelletier by

the Haytian courts was wrongful and that damages should be

awarded. In determining the amount of the damages, Mr.

Strong declined to include the confiscation of the vessel

and cargo, because he was convinced that these did not belong

to Pelletier.







escape, and was arrested while attempting so to do.

After being imprisoned for a time at Cape Haitien,

Pelletier was transferred to Port au Prince, where he alleged,

though without proof, that he suffered great cruelties. He,

with members of his crew.were indicted for piracy and attempted

slave-dealing on the coast of Hayti. As the indictment also

charged him with extorting from Cortez merchandise which was

the property of one Cano, the question arose as to whether

the criminal and civil cases could be joined, and the courts

decided in the negative, but on appeal to the court of cas-

sation it was decided that they could be so joined. The

case was then sent-down for trial, the result of which was

that Oeat ~ was convicted and sentenced to death. Though

a fire had destroyed the records of the court, it was es-

tablished that Pelletier had waived his right to choose

six jurymen, dismissed his counsel, and made no defense ex-

cept to deny the jurisdiction of the court. On appeal, the

conviction was sustained, but the penalty was commuted to

five years' imprisonment, as Haytian law imposed the death

sentence for piracy only in cases where murder had been

committed.

The Award of the Arbitrator. The protocol bound the

arbitrator to decide the claims which should be submitted

to him "according to the rules of International Law ex-

isting at the time of the transactions complained of." By

a very curious twist of reasoning, Judge Strong construed

this to mean that he was bound to disregard any possible

violation of Haytian law of which Pelletier may have been

guilty and decide the issue solely upon the question of

whetherr Pelletier had so violated international law as to





22

Secretaries, stating that they had concluded arrangements

with the local relief committee for the delivery of $20,000

worth of lumber, in view of the sanction to be given to such

transaction by the Council. They stated that they were ready

to make deliveries at once and requested that the $20,000 be

placed at their disposal at once, so they could proceed. On

January 13,1897 the Secretary of State for Finance replied
that it would be impossible to raise. $20,000 or even *$10,000,

but that he had been authorized to see whether he could find

$5,000. He did not deny that the Council had sanctioned the

arrangement with the local committee.

When Metzger and Company tendered to the local -committee

a delivery of $5,000 worth of lumber, that body refused to

accept it unless officially advised to do so by the govern-

ment. Thereupon, on February 10, 1897, Metzger and Company

wrote to the Secretary of State for Finance, complaining

that the Secretary of State for the Interior would not give

them a letter to the local committee on the ground that they

were to deliver $20,000 worth of lumber before receiving

$5,000 cash. In this letter they reminded the Secretary that

the real agreement was $5,000 cash against $5,000 worth of

lumber, with a proviso that Metzger and Company and the

government would enter into negotiations for the balance.

On October 6, 1897 Metzger and Company wrote the govern-

ment, asking pay for the lumber they had tendered to the local

committee and the reply asked for documentary proof that the

lumber had been placed to the account of the government. In

addition to this correspondence there was exhibited a letter

written by the Secretary of State for Finance, in which he






assertion of Haytian counsel that did not appeal to the

arbitrator was that the treaty must be construed accord-

ing to the Haytian civil code. The arbitrator pointed out

that the protocol bound him to follow the treaty only.

The language of the treaty did not leave any doubt as to its

meaning as it guaranteed to citizens of the contracting

powers access to the tribunals of justice on the same terms

which are granted by the laws and usage of the country to

native citizens." Certainly the treaty did not need to set

out in detail such an ordinary part of procedure in bank-

ruptcy as assignment of goods. in order that it might be

guaranteed.

The conclusion of the arbitrator was that Van Bokkelen

had been grossly denied his treaty rights, and as damages

he allowed a sum of $60,000, all of which was faithfully

paid by the Haytian government.





Moore, International Arbitrations, v.2, pp.1807-1853.

Foreign Relations, 1884, 1885, 1888.

Malloy, Treaties of the U.S., v. i, p.921 ff.








prior to his own contract, were matters of general know-

ledge, and the he acted with full knowledge of them. It

showed in addition that he did not have bills of exchange

to deposit instead of specie, as he had asserted, that he had

been guilty of misstatement and misrepresentation and had an-

tedated his protest to the Haytian minister of finance to

make it appear contemporaneous.

When these facts were submitted to the arbitrator, he

voluntarily issued a statement to the effect that a re-

opening of the case was justified. Mr. Bayard was, therefore,

entirely warranted in overruling the award.






Moore, International Arbitrations, v.2, 1p. 1779-1805.

Foreign Relations, 1874, 1884, 1887.








from the officials of the old bank, and these received the

support of the United States minister to Hayti. In February

1915 President Wilson sent ex-Governor Fort of New Jersey to

Hayti to endeavor to settle the financial difficulties and

bring about better financial realtions with the United States.

This mission proved futile. Therefore in April 1915 Mr. Wilson

sent a new representative, Mr. Paul Fuller, with the same objects

in view. At the same time American bankers refused any further

credit to Hayti unless prompt payment of interest and sinking

fund charges on the national debt could be guaranteed. Sam was

advised that if he proposed to obtain funds, he would have to

turn over the administration of the Haytian customs to United

States officials. This he positively declined to do, inspired,

it was thought, by the French and German creditors of the Haytian

Republic.

With relations thus at an impasse, there occurred an

event which forced the active intervention of the United States.

Sam after suppressing the counter-revolutions of Bobo, Morin,

and others, planned and executed a stroke which was to give him

undisputed mastery of the government. In August i915through

his subordinate, General Oscar assacred 160 political prisoners

held by him at Port au Prince, Zamor being among the number.

The result was was a popular uprising against Sam and Oscar,

in which both lost their lives. Dartinguenave, president of the

Senate, was chosen president.

Prior to the events just related, in June 1915, Ad-

miral Caperton had been order to proceed to Cape Hattien to

keep order and protect American interests, as it appeared that

Sam would not succeed in restoring order. When the massacre






what beclouded because of alleged connection with slaving

operations, claimed to have purchased at a United States

marshall's sale at Key West, Florida, the bark William, which

had been condemned as a slaver and ordered sold. All the

transactions of Pelletier with reference to this vessel were

shown to be of a suspicious character, and there was fairly

substantial evidence that Pelletier had no interest in the

ship, but was merely to command it on a voyage to Hayti for

the purpose of importing some negroes into Louisiana.

Making up a cargo, which of itself was very suspicious,

Pelletier cleared for Carthegena, New Grenada. Arriving at

that port late in November, he discharged part of his cargo,

made a few purchases, and then cleared for Rio Hacha, about

100 miles east-northeast from Carthegana. He also shipped from

Carthegena one Cortez and family as passengers for Rio Hacha.

Alleged unfavorable winds drove the ship from her course to

Rio Hacha, and Cortez, becoming alarmed and suspicious, was

at his own request deposited at Georgetown, Grand Cayman, but

not until Pelletier had mulcted him of half the freight he

had on board.

Pelletier then cleared for Port au Prince, Hayti, though

it was shown that strong winds and currents had to be encount-

ered in that direction. Arriving at Port au Prince in January

1861, Pelletier disposed of the remainder of his cargo, which

consisted of lumber. Here it was shown that he had trouble with

some of his crew, had them arrested and imprisoned by the local

authorities. He was shown also to have solicited one Max-

imilian to get him fifty men and women to load a cargo of gag

guano at'Navassa Island, but before he could achieve this




14.


unconscionable that its enforcement wouldAimpaired the good

repute of the United States in Latin America beyond possibility

of immediate repair.





Moore, International Arbitrations, v. 2, pp. 1749-1779, 1795-180d'

Foreign Relations, 1874, 1884, 1887.

Garcon, Code Penal, p. 22.







The Pelletier Case


History. The first notice of this case came to the

Department of State in 1861 through a dispatch from Mr.

G.E.Hubbard, commercial agent of the United States at

Cape Haitien, stating that Antonio Pelletier, an American

citizen, was under arrest in HaytI on a charge of attempted

enslavement in Hayttan waters of Haytian citizens. Mr.

Seward, at the time Secretary of State, made a thorough

investigation as a result of which he declined, on Nov-

ember 3, 1863 to interfere in Pelletier's behalf, in-

structing Mr. Whidden, commissioner to Hayti, that Pel-

letier's"conduct in Hayti and on its coasts is conceived

to have afforded the reasonable ground of suspicion

against him on the part of the authorities of that Re-

public which led to his arrest, trial, and conviction in

the regular course of the law, with which result it is

not deemed expedient to interfere."

Managing to escape from Hayti in 1864, Pelletier on

July 16 of that year presented a lengthy memorial to the

Department of State claiming damages from the Haytian

government. Mr. Seward, consistent with the position he

had previously taken, took no action bn this memorial.

Pelletier then transferred his activities to Congress,

appealing first to the House of Representatives. But this

body, after examining papers relevant to the case, which

had been transmitted to it by the State Department, de-

clined to take further action. In 1871, therefore, Pel-

letier again appeared before the Department of State,





The Lazare Case


This case was arbitrated under the same protocol as

the Pelletier case and the award was impugned and de-

nied enforcement by Secretary Bayard at the same time. The

history of the case before the Department of State is un-

important.

Facts As Admitted Before the Arbitrator. On Septem-

ber 23, 1874 Lazare entered into a written contract with the

Hayttan government to establish a national bank at Port au

Prince, with branches in provincial cities. The capital was

at first fixed at $3,000,000, one-third of which was to be

contributed by the Haytian government and two-thirds by

Lazare. The bank was to be opened one year from the date

of the contract, to which term an extension of forty five

days was granted at the request of Lazare. At the end of

the extended period, alleging that Lazare had not fulfilled

his contract, the Haytian government declared the same

null and void on the part of Lazare, and therefore for-

feited.

Arbitrator's Holding. The arbitrator found that Lazare

had faithfully and diligently endeavored to execute his ob-

ligations under the contract. He had taken all the pre-

liminary steps required of him with reference to the con-

struction of buildings, warehouses, and negotiation for

capital. Finding it advisable to reduce the amount of the

capital to one-half the prescribed amount, he had secured

the assent of the Haytian government to such a modification.

With reference to the time of paying in the capital, the

arbitrator had considerable difficulty. The contract re-

quired the government to pay in its portion as soon as the







complete organization of the bank is effected." Lazare

was to pay his share in specie "so as to complete the

amount of stock of bullion." Lazare was unable to pay in

specie, though he offered commercial paper to the prescribed

sum. The Haytian government made a show of depositing its

share and then declared the contract void. In the mind of
of the arbitrator the action of the Haytian government in

pledging its customs revenues to other enterprises in ap-

parent violation of its contract with Lazare had something

to do with his failure to produce specie. Moreover, the

arbitrator construed the.contract not to require Lazare to

pay until the Haytian government had completed its specie

payments. Therefore, the arbitrator did not consider

Lazare in default and hence declared him entitled to com-

pensation. The amount of the compensation he'assessed at

$117,500, being influenced by an agreement for indemnity

entered into by the government with Lazare and later re-

pudiated by revolutionists.

Mr. Bayard Overruling the Award. Mr. Bayard based

his action chiefly upon the fact that. there was in the

possession of the Department of State evidence which had not

been brought to the attention of the arbitrator. This e-

vidence consisted of a letter from Mr. Basset, minister to

Hayti to Mr. Evarts, Secretary of State, a statement of

Lazare made in February 1877, and a statement made to the

Department of State in October 1877 by Lazare's counsel. It

revealed a discrepancy between Lazare's claims in 1877 and

those made in 1885. Likewise it showed that the pledges of

customs to others against which Lazare complained were made







into effect on July 6, 1865.

The relations of the two governments since that date

have been, on the whole, too minute and inconsequential to

set forth in a paper of limited scope, but there have arisen

a few controversies involving important and interesting

questions of international law, and it is to these that t1te

present essay proposes to confine itself.







Richardson, Messages, v. 6, p. 44.
Statutes at Large, 37th Cong., Sess. II, Ch. 96.
Id& 38th Cong., Sess. I, Ch. 136.









rator pointed out, however, that he was specifically given

jurisdiction over the claim as a result of the arbitral

agreement, and was therefore competent to award damages in

this caeev As to whether the commune of Port au Prince alone

was liable, he refused to decide, remarking that the protocol

specifically made the Republic of Hayti and it alone liable.

He awarded damage on this claim in the amount of $5,000,

as compensation and reparation.







Foreign Relations, 1901, p. 262 ff.

Malloy, Treaties of the United States, v. 1, p. 936.








generally recognized principles of international law.

After long negotiation, Van Bokkelen was released on May

28, 1885. On October 2, 1885 through the Department of State

he preferred a claim against the Haytian government. As Van

Bokkelen died on November 1, 1885, the claim was prosecuted

on behalf of his widow and children. It was agreed to ar-

bitrate the matter and on May 24, 1888 the protocol was signed,

Lr. A.P.Morse being selected as arbitrator.


Arbitrator's Decision. The only problem in the case,

according to the arbitrator, was to determine whether Van

Bokkelen's treaty rights had been infringed by the action of

the Haytian courts. If they had, he was without question

entitled to indemnity.

In an endeavor to prove that there had been no impair-

Trent of the claimant's treaty rights the counsel for the

.Haytian government advanced many ingenious arguments, which

all rejected by the arbitrator. First, it was urged that Van

Bokkelen's residence in Hayti removed him from the protection

of the treaty, but obviously such was not the case. It was

persons like Van Bokkelen that the treaty was purposely de-

signed to protect. Again it was urged that the treaty could

not by implication repeal a provision of the code. This was

not denied, but it was shown that i 11ll cases of clear re-

pugnance, a law must yield to a subsequent treaty, whether

expressly or impliedly. Moreover, it was not entirely re-

pealed, but only suspended as to American citizens. It

was also contended by Haytian counsel that the treaty guaran-

teed aliens "natural" but not"civil" rights, but the ar-

bitrator declined to recognize such a distinction. Another








plied with and they left. On June 23 they reappeared with the

same demand, and when it was refused, they seized certain

goods belonging to Metzger and Company, which they later sold

at public auction to meet the claims. All this was in apparent

accord with the prescribed statutory procedure in such cases.

Metzger and Company protested vigorously, claiming that it

had not been the practice to seize and sell property for non-

payment of licenses; that none of the summonses, writs, or judg-

ments had been recorded, which rendered the proceedings null and

void: that the proceedings were unlawful because Metzger and

smipaxiBx Company were not parties. At first they did not

raise the question of violation of their treaty rights, but in

the handling of the matter between the Solicitor for the State

Department and the Haytian minister this issue was injected

Tt was not controverted by the- Haytian minister; he simply con-

tended that Metzger and Company could have had redress in the

Haytian tribunals. The American government then agreed not to
insist upon a diplomatic settlement of the claim, on condition

that Hayti pledge herself to see that the treaty was observed

and that Metzger's right to demand indemnity for the illegal

seizure be not precluded.

It was admitted that the law under which the seizures

were made was a violation of the treaty provision that American

citizens should be obliged to pay any higher contributions than

native Haytians, and guaranteed them equal rights in trade.

Moreover it was shown that the license taxes were seldom enforced

against workmen in Hayti.

Hayti urged that the remedy should be sought in the local

courts and that this was the only remedy available. The arbit-





Recent Relations With Hayti



The tumultuous Haytian-American relations of the past

three years merit some notice here, though they have not

given rise to problems predominantly legal. On May 2, 1913

the Haytian president, Auguste, died and a man named Oreste

was elected to succeed him. After an incumbency lasting until

January 27, 1914, Oreste was driven out of the country by a

revolution headed by one Theodore. But before Theodore could

be installed in the presidency, he too was driven out by a

counter-revolution under Zamor. Zamor set up a provisional

government and was finally elected president, but in October

1914 Theodore headed a new revolution, which in turn un-

seated Zamor and resulted in the election of Theodore to the

presidency. In Banuary 1915 Theodore was confronted by another

revolution under Guillaume Sam, the result of which was that

Theodore was driven out and was succeeded by Sam. But Sam's

tenure was to be no more secure than that of his predecessors.

Zamor at once headed a counter-revolution against him, but Sam

succeeded in suppressing this in March 1915. But in April

there arrived a fresh revolution under Bobo, which was partially

successful, but did not succeed in eliminating Sam.

During this disturbed period relations with the United

States had become very strained. For some years the Haytian

government had had difficulty with its creditors, French,

British, and German; and in 1914 the National Bank of Hayti had

transferred a large government gold deposit to New York City,

much to the chagrin bf Theodore. Hence when in January 1915

Theodore came into power he closed the National Bank and es-

tablished in its stead a new one. A huge protest went up from








one of his men left the ship and denounced him to the port

authorities as a slaver, and the imprisoned men joined in

this accusation. The local authorities, despite Pelletier's

objections, boarded the ship and found much to justify the

accusations. However, they concluded to return the ship

to Pelletier if he would leave Haytian waters. Upon his

own request he was given clearance for New Orleans and set

sail. A Haytian gunboat, detailed to follow him a portion

of the way, returned with the report that instead of going

to New Orleans, Pelletier had turned eastward around Mole

St. Nicholas.

Eventually Pelletier put in at iapm Port Liberti, an

obscure Haytian port about twenty miles from Cape Haitien.

Here he displayed the French flag, proclaimed his vessel

to be the Guillaume Tell from Havana to Havre, ordered his

men to speak French only, and pretended that his own

name was Jules Letellier. He even wrote a letter to the

French consul repeating these falsehoods. For stopping at the

port, he offered the excuse that his rudder was out of

repair, which was untrue. He stated that he had been ob-

liged to discharge part of his cargo at Guadeloupe and want-

ed to take a number of persons there to help him reload. He

alos planned to give a dance on shipboard to which he would

invite a number of young men and women, whereupon he would

get them intoxicated and sail away. However, a sailor whom

he had shipped from Port au Prince escaped from the ship and

communicated the facts to the authorities of the port. Pel-

letier was then ordered to come ashore and bring the ship's

papers, which he refused to do, but attempted to make his







time an offense against international law.

His legal right to refuse to press the award Mr. Bayard

rested upon the following arguments:(i) The protocol was not

a treaty--merely an executive agreement, which did not become

the law of the land, and which might therefore be disregarded

by the executive. (2) The doubtful naturalization of the claim-

ant. (3) It is the duty of the Executive to refuse to enforce
an unconscionable award. (4) This claim is one which would not

be pressed either as a matter of law or a matter of honor.


Comment. Secretary Bayard's criticism of the award is

wholly justifiable, with one exception. Mr. Strong conceded

that the Haytian courts would have had jurisdiction over

Pelletier had he committed an offense against the peace of

the port, but was unable to conclude that he had committed

any offense at all or had even attempted such a thing. And

Mr. Bayard, in order to justify the jurisdiction of the

Haytian courts in accordance with his correct interpretation

of the protocol and the international law applicable to the

case, found it necessary to assert as a fact that there had

been a criminal attempt which would have been justiciable

both under our own and the Haytian law. This may well be

doubted. According to the definition of criminal attempt in

12 CyC. 177, "An attempt to commit a crime is an act done with

intent to commit it, beyond mere preparation, but falling

short of its actual commission." In addition there are many

American cases holding that the attempt must go far beyond

mere preparation. For example in People v. Murray, 14 Cal. 159,

it was held that one was not indictable for criminal attempt to




















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contract an incestuous marriage, though it was shown that he

had eloped with his niece and had requested one of the wit-

nesses to go for a magistrate to perform the ceremony. The

court said,"The preparation consists in devising or arranging the

means or measures necessary for the commission of the offense;

the attempt is the direct movement toward the commission after

the preparations have been made. The attempt must be

manifested by acts which would xKxxtk end in the consummation

of the particular offence, but for the intervention of cir-

cumstances independent of the will of the party." Likewise, in

people v. Youngs, 122 Mich. 292, it was held that one could

not be convicted of attempt to break and enter a dwelling upon

evidence merely that that he had left his home, and met by

prearrangement, a supposed confederate at a saloon on the way

to the dwelling, and after loading his revolver there,and pro-

curing extra cartridges for it went to a drug store and bought

chloroform, which, with carpet slippers and the weapon was found

on his person by the officers who arrested him as he came out

of the store. Many other cases to the same effect might be cited.

As to the Haytian law, it is the same. It is founded upon

the penal code of France. ExxaxxxtmxtkxAittzinx2xafxtkz

rKaxMhxmdtxRN~xa1 Garcon in a note to Article 2 of the French

RRai Code Penal, dealing with the subject of criminal attempt,

says, "La loi exige deux conditions pour que la tentative de

crime soit permissable: (1) qu' il alt un commencement d' ex-

ecution: (2) que ce commencement d'execution n'ait kte inter-

rompu que par des circonstances independantes de la volonte de

1' agent." Then he cites certain French cases to illustrate







the application of these rules. It will suffice to in-

troduce only one of them here. As acts simply prepar-

atory to the crime of bigamy and not constituting a jus-

ticiable attempt, he enumerates: "les demarches faites aupres

d' un officer d' etat civil pour preparer un second marriage.

La production de pieces et notamment d' un certificate donnant a

celui qui le present la fausse quality de celibataire. La

requisition a 1' officer d' etat civil de proceder aux pub-

lications. La publication meme du future marriage. La fix-

ation du jour de la celebrafaire. Le fait d' avoir fait

dresser et meme d' avoir signed un contract pecuniare de marriage "

If the above constructions of the law of the United States

and of France, which is identical with that of Hayti, be

correct, it may be doubted if the acts of Pelletier went be-

yond mere preparation, and therefore did not constitute a

criminal attempt. There was nothing done by him in Haytian

waters that would have ended in the consummation of his de-

signs but for the intervention of a force beyond the control of

his own will. At most he was guilty of nothing but inquiries

and solicitations. It was not shown that he ever took active

steps to induce any persons aboard his vessel, the liquor
orgy which he planned at Port Liberte never having gone beyond

the stage of planning and invitation. Mr. Bayard's reason-

ing, therefore, limps considerably at the end.

TherOis, however, not the slightest doubt that Mr. Bayard

was correct in refusing to enforce the award, if the equities

of the case be considered. One cannot understand what ever in-

duced the Department of State to lend itself to the pressing of

this claim, particularly when it had to overrule its thrice-

renestpri nPP-tf r f&*.- iln iwri'y gr1 ^f-r~iinr. mh- Cl?!W'! -Psl rn Utter!-"







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23

stated that the Council had decided to disallow the Metzger

claim because nothing had been furnished to the local com-

mittee.

Metzger and Company intended that the government had

become liable, inasmuch as it was guarantor and principal of

the arrangement with the local committee. On this theory

they claimed damages to the extent of the full $20,000. The

arbitrator held, however, that the evidence showed that the

original memorandum of the local committee had left the mode

of payment to be negotiated with the government, and that this

had been done on the basis of $5,000 cash against $5,000 worth

of lumber, the parties to negotiate further on the balance. It

was apparent that they had never come to any agreement as to

the balance, and therefore there was a contract for $5,000 only.

In determining the damage to Metzger and Company of the breach

of this contract for $5,000, the arbitrator found that the

difference between contract price and the market price to be

$2,000, and therefore allowed damages in the amount of $3,000.

The Water Claim. Metzger and Company conducted a lumber

mill at Port au Prince. In the fall of 1897 they discovered

that the water supply furnished through a 3/4 inch pipe to

their mill was inadequate. They made application to the

communal authorities for a one inch pipe, and an agreement

was entered into, whereby the company was to pay for the pbpw

and the cost of installation, $81.75 being the estimated cost.

There was some question as to whether a contract was really

entered into, because of certain claims of Metzger against the

commune on account of former transactions and certain alleged

claims of the commune against Metzger. The arbitrator con-








Introduction


Although the history of the Republic of Hayti be-

gins with the slave insurrection of 1791, which led to

the complete independence of Hayti in 1803, the formal

relations of the United States with the negro republic

did not commence until 18V6. The reason is obvious. A

government which nourished the institution of slavery

and which was largely in the control of the slave-owning

classes could not be expected to recognize a government

consisting of revolted slaves. But the Civil War brought

a change of policy on the part of the government of the

United States. In his first annual message to Congress,

December 3, 1861, Mr. Lincoln stated that he saw no long-

er any reason to withhold recognition of the negro re-

publics of Liberia and Hayti, and recommended that Congress

appropriate a sum for the establishment of diplomatic

missions to those countries.

With reference to Hayti, Congress acted on June 5,

1862, authorizing the President to appoint a commission-

er or consul-general to that government, and the sundry

civil bill of July 11, 1862 carried an appropriation for

the support of the mission thus authorized. Mr. B.F.

Whidden of New Hampshire was forthwith named for the post,

and he proceeded at 6nce to negotiate a general treaty

of amity, commerce, navigation, and extradition, which was

signed by the plenipotentiaries at Port au Prince on Nov-

ember 3, 1864 and after due ratification and exchange went