Claim of Charles Adrian Van Bokkelen vs. the Government of Hayti

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Claim of Charles Adrian Van Bokkelen vs. the Government of Hayti before the arbitrator : brief of argument in support of the claim
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Brief of argument in support of the claim
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Kennedy, Crammond, 1842-1918
Van Bokkelen, Charles Adrian
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Claims vs. Haiti -- United States   ( lcsh )
Réclamations contre Haïti -- États-Unis   ( ram )
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"Crammond Kennedy, Marston Niles, counsel"--P. 35.

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CLAIM OF CHARLES ADRIAN VAN BOKKELEN

vs.


THE GOVERNMENT OF HAYTI.


BEFORE THE ARBITRATOR.



Brief of Argument in Suitport of the Claim.


The following-named papers have been examined by counsel:
(a) All the correspondence in regard to the case, with inclosures, printed
in "Foreign Relations for 1884 and 1885.
(b) Note of His Excellency the Envoy Extraordinary and Minister
Plenipotentiary of the Republic of Hayti to the Secretary of State of the
United States, dated August 15, 1887, in regard to the claim, with a "state-
ment of facts and points of law relating thereto," and four Exhibits sub-
mitted on the part of the Haytien Government, namely:
Exhibit No. I. Copy of the decision of the Court of Cassation of
Hayti, dismissing the appeal of Charles A. Van Bokkelen vs. Louis Nadal.
Rendered September ii, 1883. Translation: pp. 13.
Exhibit No. II.-Copy of Van Bokkelen's schedule (bilan), registered
in the office of the clerk of the Civil Court at Port au Prince, February 15,
1883: pp. 2.
Exhibit No. III. -Copy of the decision of the Court of Cassation, dis-
missing the appeal of Van Bokkelen vs. St. Aude, jr., and the National
Bank of Hayti. Rendered December 18, 1884. Translation: pp. 16.
Exhibit No. IV. -Copy of the decision of the Civil Court of Port au
Prince denying Van Bokkelen's petition to be allowed to make judicial as-
signment for the benefit of his creditors, and to be discharged from im-
prisonment. Rendered May 27, 1884. Translation: pp. 35.





VAN BOKKELEN VS. HAYTI.


(c) Note of His Excellency the Haytien Minister to the Secretary of
State of the United States, dated February 14, i888, with a second brief or
argument, entitled In the matter of the claim of C. A. Van Bokkelen; ad-
ditional points of law relating thereto: pp. 25.
(d) Memorandum of the Third Assistant Secretary of State of the United
States, entitled "Claim of C. A. Van Bokkelen vs. Hayti," dated April 17,
I888: pp. 1o.
(e) Protocol of an agreement between the Secretary of State of the
United States and the Envoy Extraordinary and Minister Plenipotentiary
of the Republic of Hayti, for submission to an arbitrator of the claim of
Charles Adrian Van Bokkelen: Signed May 24, i888.
The submission of the claim to arbitration is in the following terms:
The United States of America and the Republic of IIayti being mutually desirous of
maintaining the good relations that have so long subsisted between them, and of removing,
for that purpose, all causes of difference, their respective representatives, that is to say,
Thomas F. Bayard, Secretary of State of the United States, and Stephen Preston, Envoy
Extraordinary and Minister Plenipotentiary of the Republic of Hayti, have agreed upon
and signed the following protocol:
I. It having been claimed on the part of the United States that the imprisonment of
Charles Adrian Van Bokkelen, a citizen of the United States, in IIayti, was in derogation to
the rights to which he was entitled as a citizen of the United States under the treaties between
the United States and IIayti, which the Government of the latter country denies, it is agreed
that the questions raised in the correspondence between the two governments in regard to the
imprisonment of the said Van Bokkelen shall be referred to the decision of a person agreed
upon by the Secretary of State of the United States and the Envoy Extraordinary and Minister
Plenipotentiary of the Republic of Ilayti.
2. The referee so chosen shall decide the case upon such papers as may 'be presented to
him by the Secretary of State of the United States and the Minister of Hayti, respectively,
within two months after the date of his appointment; but he shall not take into consideration
any question not raised in the correspondence between the two governments prior to the date
of the signature of this protocol.
3, Each government shall submit with the papers presented by it a brief of argument;
and should the referee so desire he may require further argument, oral or written, to be made
within five months from the date of his appointment. IHe shall render his decision within
six months from said date.
4. A reasonable fee to the referee shall be paid by the Government of IIayti.
5. Any award made shall be final and conclusive; and, if in favor of the claimant, shall
be paid by the Government of IIayti within twelve (12) months of the date of such award.
Done in duplicate, at Washington, this 24th day of May, one thousand eight hundred and
eighty-eight.
T. F. DAYARD. [SEiL.]
STEPHIEN PRESTON. [SEAL.]





STATEMENT OF FACTS.


STATEMENT OF FACTS.

[References to the Exhibits are to the translations.]
Charles Adrian Van Bokkelen was a citizen of the United States who,
prior to the year 1872, resided in Brooklyn, N. Y. In that or the following
year he went to Hayti, and established himself in business in Port an Prince.
In i88o he married a Haytien lady, the widow of General P. Lorquet, an
owner real estate in Hayti in her own right. There were two children of
this marriage, who, with their mother, reside at Port au Prince.
On the 15th of February, 1883, having sustained severe losses in his
business, and a judgment against him having been affirmed in the Court of
Cassation, which he was unable to pay, and under which he was liable to be
imprisoned for one year, he filed a schedule of his assets and liabilities
(Exhibit No. 2) in the Civil Court of Port au Prince, preparatory to apply-
ing for the benefit of judicial assignment, under which, in Hayti, an honest
but unfortunate debtor is allowed to surrender all his property for the benefit
of his creditors, and is entitled to be discharged from prison, if he has been
arrested, and to be free from arrest thereafter on account of his existing in-
debtedness (see Haytien Code of Civil Procedure, arts. 787-795 ; Civil Code,
arts. 1051-1055 ; Code of Commerce, art. 569, infra). At that time, in Hayti,
imprisonment for mere debt had not been abolished (Exhibit 4, p. 7; Foreign
Relations," 1885, p. 483; Mr. Preston's first statement, p. 5 middle).
Three other judgments were subsequently recovered against Van Bokkelen,"
two in favor of the Bank of Hayti and one in favor of J. Archin, under each
of which he was liable to three years' imprisonment in default of payment,
making ten years in all. A fifth judgment was rendered against him in
favor of St. Aude, jr., which does not seem to have decreed any imprison-
ment. These judgments are enumerated in Mr. Langston's dispatch of
January 14, 1885, to Mr. Frelinghuysen ("Foreign Relations," 1885, Pp.
482-485), and it is there stated that the terms of imprisonment fixed in three
of the judgments are twice as long as would have been imposed in the case
of a Haytien.
After the filing of Van Bokkelen's schedule, which was duly recorded by
the Clerk of the Civil Court in Port au Prince on the 15th of February, 1883
(Exhibit No. 2, endorsement; Exhibit No. 4, foot of p. 2; also ibid, p. 18),
the proceedings seem to have been postponed by notices or writs until the
following year (ibi d, p. 10).
On or about the fifth of March, 1884, Van Bokkelen was arrested on the
judgment of Toeplitz & Co., and confined in the common jail of Port au





VAN BOKKELEN VS. HAYTI.


Prince (Mr. Langston to Mr. Frelinghuysen, "Foreign Relations," 1884, p.
307). Although imprisonment for debts, irrespective of fraud in contract-
ing them or evading their payment, was then lawful in Hayti, there seems to
have been no separate prison for debtors. The character of the common
jail and of the military hospital in which Van Bokkelen was confined, and
the state of his health when he was incarcerated, will be noticed hereafter
in connection with the question of damages.
Van Bokkelen protested against his arrest as illegal, on the ground that
by an order of the Haytien authorities, published in the official journal, it
was made obligatory that before a foreigner could be placed in jail the com-
plaint should first be submitted to the attorney for the Government for his
examination and approval, and [should be] signed with his signature, with
seal attached ''" (Mr. Van Bokkelen to Mr. Frelinghuysen, "Foreign Rela-
tions," 1884, p. 306). On the i8th of the same month it was judicially
determined that Van Bokkelen's arrest was illegal. But before he was dis-
charged, other creditors, availing themselves of a provision of Haytien law
under which, when a debtor is imprisoned, they can keep him in jail by
"recommending" him, recommended him accordingly, and the jailer re-
fused to discharge him (ibid, p. 306; "also p. 308, second paragraph from top;
also Foreign Relations," 1885, p. 477, near bottom; p. 534, bottom ; pp.
535, 536, 538). [Some dates in Van Bokkelen's statement are incorrectly
printed.]
It is to be noted that these creditors took advantage of Van Bokkelen's
illegal imprisonment to keep him from getting out of jail by a method which
would not have enabled them to put him in ("Foreign Relations," 1885, p.
535, Inclosure I; also p. 538).
Van Bokkelen thereupon, through his counsel, applied to the Civil Court
of Port au Prince for the benefit of judicial assignment (Exhibit No. 4, PP.
2 and 3).
He had been advised that under the Treaty of 1864 between the United
States and Hayti, he was entitled to the benefit of judicial assignment the
same as if he were a citizen of that country.
The object of the Treaty, as expressed in its opening paragraph, is to
make lasting and firm the friendship and good understanding which happily
prevail between both nations, and to place their commercial relations upon
the most liberal basis."
The articles defining the reciprocal rights of citizens of each of the two
nations residing and doing business in the territory of the other are ex-
pressed as follows:
ARTICLE VI.
The citizens of each of the contracting parties shall be permitted to enter, sojourn, settle,
and reside in all parts of the territories of the other, engage in business, hire and occupy
warehouses, provided they submit to the laws, as well general as special, relative to the rights
of traveling, residing, or trading. While they conform to the laws and regulations in force
they shall be at liberty to manage themselves their own business, subject to the jurisdiction of






STATEMENT OF FACTS. 5

either party, respectively, as well in respect to the consignment and sale of their goods as with
respect to the loading, unloading, and sending off their vessels. They may also employ such
agents or brokers as they may deem proper; it being distinctly understood that they are subject
also to the samedlaws.
The citizens of the contracting parties shall have free access to the tribunals of justice, in
all cases to which they may be a party, on the same terms which are granted by the laws and
usage of the country to native citizens, furnishing security in the cases required; for which
purpose they may employ in the defense of their interest and rights such advocates, solicitors,
attorneys, and other agents as they may think proper, agreeably to the laws and usage of the
country.
ARTICLE IX.
The citizens of each of the high contracting parties, within the jurisdiction of the other,
shall have power to dispose of their personal property by sale, donation, testament, or other-
wise; and their personal representatives, being citizens of the other contracting party, shall
succeed to their personal property, whether by testament or ab intestato. *

In the proceedings upon Van Bokkelen's petition to the Civil Court of
Port au Prince for the benefit of judicial assignment, twelve of his creditors
appeared, and all but two assented (Exhibit No. 4, PP. 3-5). These opposing
creditors (Toeplitz & Co. and Nadal) raised various objections, but insisted
mostly on article 794 of the Code of Civil Procedure and article 569 of the
Code of Commerce, which expressly exclude foreigners (les strangers) from
the benefit of this provision of Haytien law ibidd, pp. 5-17).
The provisions of the Haytien codes in regard to assignments for the
benefit of creditors are here appended :
[From the Civil Code of Hayti.]
V.-DE LA CESSION DE BTENS.
ART. 1051. La cession de biens est l'abandon qu'un d6biteur fait de tous ses biens a ses
creanciers, lorsqu'il se trouve hors d'6tat de payer ses dettes.
ART. 1052. La cession do biens est volontaire on judiciaire.
ART. 1053. La cession de biens volontaire est celle que les cr6anciers acceptent volontaire-
ment, et qui n'a d' effet que celui resultant des stipulations memes du contract passe entr'eux
et le d6biteur.
ART. 1054. La cession judiciaire est un b6ndfice que la loi accord au d6biteur malheureux
et de bonne foi, aquel il est permis, pour avoir la liberty do sa personnel, de faire en justice
1'abandon de tous ses biens a ses creanciers, nonobstant toute stipulation contraire.
ART. 1055. La cession judiciare ne confdre point la propri6td aux creanciers; elle leur
donne seulement le droit de faire vendre les biens a leur profit, et d'en percevoir les revenues
jusqu'a la vente.
Les cr6anciers ne peuvent refuser la cession judiciaire, si ce n'est dans les cas excepts par
la loi.
Elle opire la d6charge de la contrainte par corps.
Au surplus, elle ne libhre le d6biteur que jusqu'X concurrence de la valeur des biens aban-
donn6s; et dans le cas on ils auraient Wtd insuffisants, il est oblige, s'il lui en survient d'autres,
de les abandonner jusqu'au parfait paiement.
[From the Haytien Code of Civil Procedure.]
TITRE XII.--Du I NIFICE DE CESSION.
ART. 787. Les ddbiteurs qui seront dans le cas de r6clamer la cession judiciaire accord6e
par Particle to54 du Code Civil, seront tenus, a cet effet, de d6poser au greffe du tribunal, olt
la demand sera port6e, leur bilan, leurs livres, s'ils en ont, et leurs titres actifs.





VAN BOKKELEN VS. HAYTI.


ART. 788. Lc ddbiteur se pourvoira devant le tribunal de son domicile.
ART. 789. La demand sera communique au ministere public; elle ne suspendra
l'effet d'aucune poursuite, sauf aux juges a ordonner, parties appelees, qu'il sera sursis pro-
visoirement.
ART. 790. Le d6biteur admis au b6ndfice de cession sera tenu de reiterer sa cession en
personnel, et non par procureur, ses creanciers appel6s devant le conseil des notables de son
domicile; la declaration du debiteur sera constatee par proces-verbal du greffier dudit conseil,
qui sera sign par 1'un de ses membres.
ART. 791. Si le d6biteur est detenu, le jugement qui l'admettra au b6ndfice de cession,
ordonnera son extraction, avec les precautions, en tels cas, requises et accoutum6es, a l'effet
de faire sa declaration conform6ment a 1'article pr6ecdent.
ART. 792. Les nom, pr6noms, profession et demeure du debiteur, seront ins6res dans un
tableau public a ce destine, plac6 dans 1'auditoire du tribunal civil de son domicile, et dans le
lieu des s6ances du conseil des notables.
ART. 793. Le jugement qui admettra au benefice de cession, vaudra pouvoir aux cr6anciers,
a l'effet de faire vendre les biens meubles et immeubles du debiteur; et il sera procede A.
cette vente dans les formes prescrites pour less h6ritiers sous benefice d'inventaire.
ART. 794. Ne pourront etre admis au benefice de cession, les troangers, les stellionataires,
les banqueroutiers frauduleux, les personnes condamnnes pour cause de vol ou d'escroquerie,
ni les personnel comptables, tuteurs, administrateurs et depositaires.
ART. 795. II n'est au surplus rien prdjug6, par les dispositions du present titre, a l'gard
du commerce, aux usages duquel il n'est, quant a present, rien innovd.

[From the Haytien Code of Commerce.]

TITRE. II.-DE LA CESSION DE BIENS.

ART. 560. La cession de biens, par le failli, est volontaire ou judicaire.
ART. 561. Les effects de la cession volontaire se determinent par les conventions entire le
failli et les cr6anciers.
ART. 562. La cession judiciaire n'eteint point Faction des creanciers sur les biens que le
failli peut acquerir par la suite; elle n'a d'autre effet que de soustraire le debiteur a la contrainte
par corps.
ART. 563. Le failli qui sera dans le cas de reclamer la cession judiciaire, sera tenue de
former sa demand au tribunal, qui se fera remettre les titres n6cessaires; la demand sera
inseree dans les papers publics, come il est dit Particle 447 du Code de procedure civil.
ART. 564. La demand ne suspendra l'effet d'aucune poursuite, sauf au tribunal a ordonner,
parties appelees, qu'il y sera sursis provisoirement.
ART. 565. Le failli admis au benefice de cession sera tenu de faire ou de reiterer sa ces-
sion en personnel et non par procureur, ses crdanciers appelds, a l'audience du tribunal de
commerce de son domicile; et, s'il n'y a pas de tribunal de commerce, a la justice de paix,
un jour de seance. La declaration du failli sera constat6e, dans ce denier cas, par le proc6s-
verbal de I'huissier, qui sera signed par le juge de paix.
ART. 566. Si le d6biteur est detenu, le judgment qui I'admettra au benefice de cession
ordonnera son extraction, avec les precautions en tel cas requises et accoutumnes, a l'effet de
faire sa declaration conform6ment a Particle precedent.
ART. 567. Les nom, prdnom, profession et demeure du debiteur, seront insdrds dans des
tableaux a ce destinds, places dans 1'auditoire du tribunal de commerce de son domicile, on
du tribunal civil que en fait les functions, dans le lieu des seances de la chambre des notables,
et a la bourse.
ART. 568. En execution du judgment qui admettra le d6biteur au bendfice de cession, les
cr6anciers pourront faire vendre les biens meubles et immeubles du ddbiteur, et il sera proced6
a cette vente dans les former prescrites pour le ventes faites par union de crdanciers.





STATEMENT OF FACTS.


ART. 569. Ne pourront etre admis du b6ndfice de cession,
i. Les stellionataires, les banqueroutiers frauduleux, les personnel condamn6es pour fait
de vol ou d'escroquerie, ni les personnel comptables;
2. Les 6trangcrs, les tuteurs, administrateurs ou d6positaires.
All the objections of the opposing creditors were traversed by the peti-
tioner (ibid, pp. 18-25). His counsel argued that the schedule of his assets
and liabilities was sufficient; that his misfortunes and good faith were mani-
fest; that the Treaty of 1864 between Hayti and the United States repealed
article 794 of the Civil Code of Procedure and article 569 of the Code of
Commerce so far as the disability attaching to the petitioner in his character
of American citizen or foreigner was concerned. This he argued at length,
and also claimed that inasmuch as the petitioner had established himself at
Port au Prince in business, and married a Haytien wife who owned real prop-
erty in the city and had borne him children; having thus fixed his home
as well as his commercial interests in Hayti with the knowledge of the Gov-
ernment, a just construction of the term "les itrangers" required that
he should not be treated as a foreigner or a stranger, but as a domiciled mer-
chant, entitled to all civil rights and privileges as distinguished from those
that are political; and in support of the proposition that the exercise of civil
rights is independent of the exercise of political rights, and that "the capacity
of a citizen resides in the combination of civil and political rights," he cited
article i of the Civil Code of Hayti.
The opposing creditors (Toeplitz & Co.) rejoined that they had no knowl-
edge of the Treaty and had not been served with a copy; and therefore moved
for information in that regard at the cost of the petitioner (Exhibit 4, p. 26).
Petitioner's counsel replied that the Treaty was not a document but a law of
which no one was supposed to be ignorant ibidd, p. 27).
It appears also that the Government of Hayti, as well as all the parties to
these proceedings, was represented by counsel and heard by the court ibidd,
p. 29.)
The first question that the court decided was "whether the petitioner should
be condemned to furnish to Toeplitz & Co. information regarding the Treaty
concluded between Hayti and the United States of America, and whether
such information should likewise be furnished to Louis Nadal" ibidd, p. 29).
That question the court decided in favor of Van Bokkelen, as follows:
Whereas a Treaty concluded between IHayti and the United States of America, November
3, 1864, sanctioned by the Senate, and promulgated by the Executive branch of the Govern-
ment, is a law of the State; whereas article 75 of the Code of Civil Procedure renders it
obligatory upon the petitioner to furnish a copy of the documents or of that part thereof upon
which the petition is based; but it does not provide that a copy of the law or of the provision
of the law on which the petition is based shall be furnished; whereas, thus, Mr. C. A. Van
Bokkelen is not obliged to furnish information of the Treaty to Louis Nadal, and can not be
condemned to furnish such information to Toeplitz & Co., who are under obligations, just as
C. A. Van Bokkelen is, to have knowledge of the law ibidd, p. 31).
On the main question, involving the rights of Van Bokkelen under the
Treaty, and deciding upon the objection of his alienage based upon article





VAN BOKKELEN VS. HAYTI.


794 of the Code of Civil Procedure and article 569 of the Code of Com-
merce, interposed by L. Toeplitz & Co. and by Louis Nadal, the court set
forth its opinion in the following preamble ibidd, pp. 32 and 34):
Whereas according to the terms of the aforesaid articles foreigners are not admitted to the
benefit of an assignment; whereas the reason which causes the exclusion of foreigners is that
the benefit of an assignment has always been regarded as an institution of civil law which
should benefit native citizens only; whereas, although it is true that the benefit of an assignment
may be asked for by a foreigner belonging to a nation with which there is a treaty in virtue of
which IIaytiens can invoke it (the assignment) in the country of such foreigner, but it is neces-
sary also that the intention to modify the provisions of the law excluding the foreigner from
the benefit of an assignment should be clearly demonstrated; whereas article 9 of the treaty
of friendship, commerce, navigation, and extradition of fugitive criminals, concluded between
the Republic of Hayti and the Republic of the United States of America, especially invoked
by Mr. C. A. Van Bokkelen, provides that "the citizens of each of the high contracting parties,
within the jurisdiction of the other, shall have power to dispose of their personal property by
sale, donation, testament, or otherwise"; whereas, although the text of this stipulation, and
even that of article 6, which grants to the "citizens of the two contracting parties free access
to the courts of justice in all cases in which they shall be interested, on the same terms that
are granted by the laws and usages of the country to native citizens," might leave some doubt
with regard to their true meaning, it would be dispelled by the rules of law concerning the
interpretation of conventions which are applicable to treaties; whereas the first of these rules
is to seek out the common intention of the contracting parties rather than to be guided by the
literal meaning of the terms; whereas it is impossible to suppose that the intention of the con-
tracting plenipotentiaries was to abrogate or modify by article 9 or by article 6 of the treaty,
as those articles are worded, article 794 of the Code of Civil Procedure and article 569 of the
Code of Commerce, which excludes a foreigner from the benefit of making an assignment;
whereas such an intention, which is revealed by no other provision of the treaty, could not
be admitted without irrecusable evidence; whereas such intention would have been elsewhere
expressed in positive terms if it had existed; whereas all clauses must be interpreted by each
other, such sense being given to each as results from the entire instrument, the clause of article
9 and that of article 6 of the treaty should be understood as allowing American citizens to do
that for which they provide, the assignment of property being set aside; whereas it is of little
importance that Mr. C. A. Van Bokkelen is married to a IIaytien wife, who became by that
fact a foreigner, that he resides in Hayti, where he owns establishments, that he is authorized
by article 12o6 of the Civil Code to pledge alone the property held in common by himself and
wife, since all these considerations are not of a nature to confer upon him a right which the
law formally denies him; whereas by the above solution it becomes useless to examine the
other petitions of the parties with regard to the form and substance of the application.
For these reasons," says the judgment, the court, after having delib-
erated, denies the application." ibidd, p. 34).
His application to make the judicial assignment having been denied by
the Civil Court of Port au Prince, Van Hokkelen was kept in jail. He
appealed to the Court of Cassation the court of last resort which rendered
its decision affirming the judgment of the Civil Court, on the 26th of Feb-
ruary, 1885, almost a year from the time when Van Bokkelen was first im-
prisoned. It seems that pending his appeal the time within which further
objections could be made by his creditors to his petition expired on the 21st
of October, 1884, and that no one, not even the parties upon whose applica-
tion he had been illegally arrested the previous March, made any opposition.





STATEMENT OF FACTS.


This fact is stated in a letter from Van Bokkelen's father to Mr. Frelinghuysen,
who was then Secretary of State, dated November 15, 1884, a copy of which
was transmitted by Mr. Davis, Acting Secretary, to Mr. Langston, United
States Minister at Port au Prince, November 19, 1884(" Foreign Relations,"
1884, p. 335). A translation of the decree of the Court of Cassation is
printed in Foreign Relations," 1885, p. 499, and reads as follows:

Decree of the Court of Appeals of Hayti.
Whereas the judicial assignment of property is an institution of civil right, the articles 769
[794] of the Code of Civil Procedure and 569 of the Code of Commerce excepting foreigners
from the benefit of this institution, since they do not exercise in Ilayti all rights, they can only
enjoy privileges derived from natural rights or of mankind, and not those which are derived
from purely civil law.
Whereas nowhere in the treaty of friendship, of commerce, of navigation, and of the extra-
dition of fugitive criminals, concluded November 3, 1864, between the United States of America
and the Republic of Hayti, is to be found that it confers upon the citizens of these two countries
the right to exercise the judicial assignment of property, there can he concluded from the terms
of articles 6 and 9 of the treaty nothing which would authorize the opinion that this right
could be invoked in the United States by a Ilaytien or in IIayti by an American. In conse-
quence thereof, Americans can not enjoy in IIayti such civil right, the enjoyment of which is
attached exclusively to the quality of a Haytien. That in stipulating that the citizens of the
contracting parties should have free access to the courts of justice in all cases wherein they
may be interested, on the same conditions that the laws and usages of the country give to their
citizens, furnishing security required in the case," this provision of the article 6 was not intended
to grant to the citizens of these two nations the enjoyment of civil rights which do not attach
[except] to citizens.
Therefore it follows from that which precedes that the judgment denounced has made a
good and just application of article 769 [794] of the Code of Civil Procedure and 569 of the
Code of Commerce, and a sound interpretation of the articles 6 and 9 of the treaty above
cited.
For such reasons, and without there being any necessity of passing on the result of non-
acceptance raised by the parties, the court rejects the appeal made by Mr. Charles Adrian Van
Bokkelen against the judgment rendered May 27, 1884, by the Civil Court of Port au Prince,
orders, in consequence, the confiscation of the fine deposited, and condemns the said Mr. Van
Bokkelen to the expenses, liquidated at the sum of not including the cost of the present
decrees.
Given and pronounced by us, Ii. Lallemand, president; J. Martineau, E. Valles, M. Fre-
mont, F. Nazon, judges, at the Palace of Justice of the Court of Appeals in public session, on
the 26th of February, 1885. Signed as follows on the minutes:
B. Lallemand, E. Valles, Fremont, J. Martineau, F. Nazon, and P. Lerebours.
A true copy. P. LESPES,
Lawyer.
The Secretary of State of the United States was informed of this decision
on the 21st of March, 1885, and on the 28th of the same month he sent a
dispatch to the United States Minister at Port au Prince, in which, after
reviewing the facts and the law, he claimed that there had been a denial of
justice in Van Bokkelen's case, and that he should be released from jail
forthwith, in the following terms (Mr. Bayard to Mr. Langston, Foreign
Relations," 1885, pp. 507-510):
The release of Mr. Van Bokkelen is now asked on independent grounds. It is main-
tained, first, that continuous imprisonment for debt, when there is no criminal offense imputed,





VAN BOKKELEN VS. IIAYTI.


is contrary to what are now ....r .11. recognized principles of international law. It is main-
tained, secondly, that the imprisonment of Mr. Van Bokkelen is a contravention of articles 6
and 9 of the Treaty of 1865 between the United States and the Republic of Hayti.
The Haytien Government has a clear and ample opportunity to relieve this case from all
difficulty by recognizing the error of their courts in supposing that the privilege of release of
an imprisoned debtor would be denied to a IIaytien citizen by the United States courts, upon
making assignment of his property for the benefit of his creditors.
You are now instructed to earnestly press the views of this Government, as outlined in this
instruction, on the early attention of the Government of Hlayti by leaving a copy thereof witq
the Minister of Foreign Affairs.
The response of the Government of Hayti should be promptly communicated to this De-
partment.
On the i7th of April, 1885, Mr. Langston sent a copy of this dispatch
to the Haytien Government and urged the prisoner's immediate release, in-
viting attention also to his "feeble and failing health" (Mr. Langston to
Mr. Prophdte, "Foreign Relations," 1885, p. 514). The reply of the
Haytien Government, twelve days later, was an elaborate defense of Van
Bokkelen's imprisonment-solely, however, upon the ground that he was
an alien ibidd, p. 515). Meanwhile, and shortly after the decision of the
Court of Cassation, the prisoner, who, at the request of the United States
Minister, had been removed to the military hospital on account of his infirm
condition, was sent back again to the common jail (ibid, 513). On the 15th
of May the United States Minister sent another note to the Haytien Gov-
ernment, insisting on Van Bokkelen's immediate release (Mr. Langston to
Mr. Prophete, ibid, p. 516), and on the afternoon of the 27th of that month
Van Bokkelen was conducted to the United States legation by an attorney
of the Haytien Government, "on its order, as stated, and thus given his
release and liberty" (Mr. Langston to Mr. Bayard, ibid, p. 521). On the
5th of the following June Mr. Langston received a note from the Haytien
Secretary of State for Foreign Affairs, maintaining the position which had
been held throughout by the Haytien Government, and closing as follows
ibidd, p. 524):
I understand that Mr. Van Ilokkelen has been put at liberty. This result, happy for him,
is due, doubtless, to some arrangement made with his creditors. This, besides, to which I
will not address myself further, as it is not proper, has itself, as you will understand, been
accomplished without interference of the Executive power; it comes to pass without saying
that it annuls in no wise the considerations which this Department has plead relative to the
case of Van Bokkelen.
Pending Van Bokkelen's appeal to the Court of Cassation, the Depart-
ment of State, upon representations of the United States Minister at Port
au Prince, in regard to the adjudged illegality of the arrest in the first in-
stance, and the prisoner's unquestionable right under the treaty to make the
judicial session, and obtain his release ("Foreign Relations," 1884, p. 308),
had instructed the Minister to use every proper effort with the Haytien Gov-
ernment to that end (ibid, pp. 329-335; also "Foreign Relations," 1885,
PP. 477, 478, 481, 482, 490, 492, 494, 498).





STATEMENT OF FACTS.


Mr. Van Bokkelen sailed for the United States shortly after his release,
and on his arrival made a statement of his case to the Secretary of State,
and an appeal for his good offices in collecting indemnity from the Haytien
Government (Mr. Van Bokkelen to Mr. Bayard, September 19, 1885, ibid,
pp. 537-539). In response, Mr. Bayard addressed a note to the United
States Mihister at Port au Prince, dated October 2, 1885, instructing him as
follows ibidd., p. 537):
Ar. Bayard to Air. Thompson.
DEPARTMENT OF STATE,
SIR : WASIIINGTON, October 2, ISS5.
I herewith inclose a copy of a letter from Mr. C. A. Van Bokkelen, of the l9th ultimo,
in reference to his illegal imprisonment at Port au Prince and his claim for damages in conse-
quence thereof.
In view of Mr. Van Bokkelen's present statement of facts and those already before your
legation in regard to his case, I desire that you will call the attention of the Government of
Hayti to his claim. There can be no doubt that Mr. Van Bokkelen was wrongfully imprisoned
by the IIaytien authorities, and that great damage accrued to him thereby.
Under these circumstances, therefore, you are directed to ask and to press for the redress
claimed by Mr. Van Bokkelen, or, if the amount to be paid can not be immediately agreed
upon, for a reference of the question to an arbitrator, so that the case may be disposed of
without unnecessary delay. I am, &c., T. F. BAYARD.

To this Mr. Thompson, who had succeeded Mr. Langston, made the fol-
lowing reply ibidd, p. 542):
Mr. Thompson to Afr. Bayard.
LEGATION OF THE UNITED STATES,
SIR: PORT AU PRINCE, IIAYTI, November, ISS5.
I have to inform you of the death of Mr. Charles A. Van Bokkelen, who died on the Ist
instant, at 2 o'clock in the afternoon, aged thirty-seven years. He was buried on the 2d
instant, many Americans and foreigners following the remains to their last resting place. I
attended the funeral, and it was a fact worthy of note that a sincere feeling of sadness at his
death and sympathy for his wife and two small children seemed to pervade all present. I
had entered his claim against the Ilaytien Government to the sum of $113,6oo some time
before his death, and will continue to press the same, as advised by the Department.
I am, &c., JOHN E. W. THOMPSON.
Subsequent" negotiatiations between the two governments have resulted
in an agreement to submit the claim to arbitration, pursuant to the terms of
the protocol, the text of which is given at the commencement of this brief.

THE QUESTIONS TO BE ARBITRATED.
Two questions arise on the facts:
i. Has there been a denial of justice by the Haytien Government in this
case? Or, in other words, was Van Bokkelen entitled by the terms of the
Treaty of 1864 to be discharged from prison on the same terms as a citizen
of Hayti imprisoned for the same cause?
2. If there has been a denial of justice, what should Hayti pay to the
United States by way of damages for the benefit of the representatives of
the deceased ?





VAN BOKKELEN VS. IIAYTI.


THE CASE UNDER THE TREATY.


In support of the proposition that the decisions of the Haytien courts in
Van Bokkelen's case were in contravention of the treaty and constituted a
denial of justice, the attention of the Arbitrator is most respectfully invited
to the following considerations:
I. The express purpose of the treaty was "to make lasting and firm the
friendship and good understanding" of the two republics, and "to place
their commercial relations upon the most liberal basis."'' To this end it is pro-
vided in article 6 (supra) that the citizens of each of the contracting parties
shall be permitted to enter, sojourn, SETTLE, and RESIDE in all parts of the
territories of the other, engage in business, hire and occupy warehouses, pro-
vided they submit to the laws, as well general as special, relative to the rights
of traveling, residing, or trading.'' The further following provision of article
6 seems intended to provide against the contingency that in the administra-
tion of the laws in matters arising out of trade and commerce there might be
some discrimination applying to foreigners which it was desirable to remove,
as against the citizens of each republic who might reside in the territory of
the other. This, of course, was a consideration worthy of the attention of
the negotiators, and one that would naturally arise in the performance of their
duty. They had already avowed their mutual purpose to place the com-
mercial relations" of the two countries "upon the most liberal basis," and
it must be supposed that they were aware, at least in a general way, of the
extent to which citizens of the United States were at that time engaged in
trade and commerce with Hayti, and residing in Haytien territory; also,
how important a service is rendered in the establishment and enlargement of
"commercial relations" by such resident merchants and traders, and how
desirable it was both for such merchants themselves and also for the growth
of commerce and trade between the two countries, that the citizens of neither
country should be under any civil disability while residing and doing busi-
ness in the territory of the other, but should be protected by and amenable
to the same laws in all commercial matters. In this light, which is shed upon
the subject by the avowed purpose which the two republics had in view in the
treaty, the following additional and later provision of article 6 is to be con-
sidered:

The citizens of the contracting parties shall have free access to the tribunals of justice, in
all cases to which they may be a party on the same terns which are granted by the laws and
usage of the country to native citizens, furnishing security in the cases required.
It is also to be assumed in construing this later provision that the negotia-
tors were aware of the state of the law in the two countries regarding im-





TIHE CASE UNDER THE TREATY.


prisonment for debt and discrimination against foreigners; that in Hayti
the body of a debtor could be taken on execution as well in cases of contract
as in tort, while in the United States imprisonment for mere debt had been
abolished and resident aliens were able to make assignments for benefit of
creditors, either voluntary or judicial, on the same terms as citizens.
II. It is agreed that the proceedings by which Van Bokkelen sought to ob-
tain the benefit of the cessionn de biens" were judicial. Article 1052 of
the Haytien Civil Code divides assignments into two classes-voluntary and
judicial. The judicial assignment involves "access to the courts." This
access the treaty said was to be free." It is clear, and has not yet been
denied, that Van Bokkelen could have been a party defendant in such pro-
ceedings ; that he could have been summoned by a petitioning debtor and
could have appeared in court and assented or objected to the petitioner's dis-
charge as if he himself were a native citizen. Now, the treaty provides that
a Haytien residing and doing business in the United States, and an American
residing and doing business in Hayti "shall have free access to the courts in
all cases to which they may be a party on the same terms which are granted
by the laws and usage of the country to native citizens."
We submit that this language, taken in connection with the avowed pur-
pose of the treaty, and its description of the persons to whom it refers,
makes its intention as clear as if it had said in so many words that the term
- "les ttrangers," in articles 569 of the Code of Commerce and 794 of the
Code of Civil Procedure, should not be construed so as to include citizens
of the United States residing and engaged in business in Hayti.
III. The opinions rendered by the Haytien courts in regard to the effect
of the treaty which have been set out in our "Statement of Facts" (supra),
are based upon no substantial or comprehensible grounds. The Civil Court,
after stating that the reason which causes the exclusion of foreigners is that
the benefit of an assignment has always been regarded as an institution of
civil law which should benefit native citizens only," admitted that "it is true
that the benefit of an assignment may be asked for by a foreigner belonging
to a nation with which there is a treaty in virtue of which Haytiens can
invoke it in the country of such foreigner." But the court added that it
was "impossible to suppose that the intention of the contracting plenipo-
tentiaries was to abrogate or modify by article 9 or by article 6 of the treaty,
as those articles are worded, article 794 of the Code of Civil Procedure, and
article 569 of the Code of Commerce, which exclude a foreigner from the
benefit of making an assignment. But why "impossible"? France, from
whom Hayti has taken most of her law, abrogated the restriction and ex-
tended the benefit of judicial assignment to aliens more than half a century
ago. And was it not the most natural and desirable thing in the world for
S*In view of the citations of the Haytien Minister from obsolete French decisions and laws, we quote from
a statement of the status of resident and domiciled aliens in France prepared by M. Treitt, legal adviser to
the British embassy in Paris, a translation of which is printed in the appendix of MonsE's Treatise o-l Citi-
izeltnsli, pp. 328-331.
Aliens admitted to domicile enjoy all civil rizghts-such are the formal terms in the t3th article of the
Code Napoleon (A. D. 1803); it results that even before the law of the x4th of July, 1819, reported above, the





14 VAN BOKKELEN VS. HAYTI.

the United States to desire to prevent by treaty what has occurred in the
Van Bokkelen case? But, say the judges of the Civil Court, "such inten-
tion, which is revealed by no other provision of the treaty, could not be
admitted without irrecusable evidence," and "would have been elsewhere
expressed in positive terms if it had existed." But why expressed elsewhere
in positive terms if the avowed purpose of the treaty and the language of the
section in question make the meaning plain? And why should that mean- a
ing be "revealed" by any "other provision" of the treaty? Is it not
enough that it is not contradicted by any other provision-that it is in har-
mony with them all? It happens, however, that there is another provision
in article 9, which, although it is not needed to make the meaning of article
6 perfectly clear, does yet clearly aim at the same reciprocal equality in the
judicial administration of commercial and business affairs.
But an ingenious attempt has been made to break the cumulative force of
this "other" provision. The words of article 9 are: "The citizens of each
of the High Contracting Parties within the jurisdiction of the other shall have
power to dispose of their personal property by sale, donation, testament, or
otherwisee" It has been argued on the part of the Haytien Government (Mr.
Preston's second brief, pp. 12-14), that one can not "dispose of property in
the sense of the civil law "without transmitting it," and inasmuch as in the
judicial assignment no title passes to the creditors, and it is discretionary
with the court whether to accept the proffered abandonment on the part of
the debtor and discharge him from prison, or not, his offer to surrender his
property or his abandonment of it to abide the decision of the court -can
not be called a disposition of it, and can not be regarded as within the scope
of the treaty. We do not understand Mr. Preston to claim that any property
remains in the debtor after he has filed his "bilan," whether it is imperfect
or not, and after he has petitioned the court to admit him to the benefit of the
cession." When, however, such admission is granted, the relinquishment
is complete ; and while article 1055 of the Civil Code provides expressly that
alien who is domiciliated is in a position to receive, to dispose of property, etc ; as a Frenchman he can take
out proceedings I justice without being subject to the surety judicatuni solvi.
Ile is admitted to the privilege of transferring his frof ierty to his creditors, thereby liberating, him-
sel/froin all his debts. Before the abolition of writ of arrest, the domiciled alien was subject only in the
same cases as Frenchmten, and he could exercise the writ of arrest against aliens.
To be brief, the domiciliated alien, except in political rights, enjoys the same civil rights as a denizen;
nevertheless, as he is always an alien, he can not be a witness in certain authenticated acts, or be arbiter,
since arbitrage is a jurisdiction.
The domicile acquired in France does not absolve the alien from the obligations which personal status in
his own country imposes on him, or of his obligations to his native country. *
To sum up : The privileges of an alien are regulated by the laws of his own country; his personal status
follows him always.
But in France this alien enjoys as a denizen the advantages of all contracts, real or personal, recognized
by the French law.
From any point of view, the condition or status of an alien, whether resident or domiciliated, differs
very little at this time from the condition of the Frenchman.
Jurisprudence tends continually to ameliorate the condition of aliens ; they are only refused rights which
are expressly denied by laws not yet modified, and they enjoy, absolutely, all the rights and privileges by
which they are invested by the law of nations.
It is to be noted also that Congress, shortly after the adoption of the Constitution, in providing for the dis-
charge of poor persons indebted to the United States, included resident aliens, and that all such persons were
also entitled to the benefit of the National Bankrupt Act of 1867 on the same terms as citizens.





THE CASE UNDER THE TREATY. 15

the title of the property does not pass to the creditors by the cessionn," it also
provides that it gives them the right to have the property sold for their
benefit, and to receive the rents and profits pending sale. Such a relinquish-
ment as this seems to us to be a most complete "' disposition of the prop-
erty. The debtor divests himself of it and the law takes it-the debtor de-
livers it absolutely into the power of the court for the benefit of his creditors.
It seems to us immaterial whether there is any particular assignee in bank-
ruptcy or not. The property is sold and the proceeds distributed by process
of law. Mr. Preston states that to lease property or pledge it is to dispose
,of it and transmit it in the sense of the civil law. But in both those cases
the property remains in the lessor and the pledgor, subject only to the use
in the one case and the lien in the other. The judicial cession of the
Haytien code is clearly a much more thorough "disposition and trans-
mission than lease or pledge. It was this "disposition and transmis-
sion of his property that Van Bokkelen sought to make, but the Haytien
courts decided he could not be allowed to do it, and must therefore stay in
jail, because he was an alien.
IV. In denying the motion of Toeplitz & Co. (supra, p. -) for a copy
of the treaty, or of those provisions in it which Van Bokkelen claimed had
removed his disability as an alien, the Civil Code of Port au Prince declared
that the "Treaty concluded between Hayti and the United States of America
November 3, 1864, sanctioned by the Senate, and promulgated by the execu-
tive branch of the Government, is a LAW OF THE STATE." Thus in Hayti,
as in the United States, treaties, duly ratified and published, are part and
parcel of the supreme law of the land. The fourth article of the Haytien
Civil Code provides that when there is a conflict between several transitory
laws, the later law abrogates whatever is contrary to it in the earlier law,
even although the legislature should omit to make mention of that abroga-
tion. It thus appears by the Haytien Code that the treaty (being a law of
the state) does not need to contain (as claimed on the part of the Haytien
Government) any clause expressly repealing any earlier conflicting law. It
is enough if the intention is clear and if that intention cannot be effected
without the abrogation of some contrary provision. In that case the obsta-
cle is removed by force of the treaty. In Van Bokkelen's case the exclusion
of foreigners from the benefit of judicial assignment should have yielded to
the force of the treaty. And that force is not a foreign interference-it is
the force of Haytien law operating in Hayti with the additional sanction of
a solemn compact in which the faith of Hayti and of the United States is
reciprocally pledged.
But even if treaties were not part and parcel of the supreme law in Hayti,
the treaty in question would still be the measure of her responsibility to the
United States, and it would be Hayti's duty, if her municipal law was in
conflict with her treaty obligations, and was not repealed by force of the
treaty, to make the legislative changes required. This ground was taken by
the United States in its controversy with France when the French Chamber




I0 VAN BOKKELEN VS. HAYTI.

of Deputies refused to make the necessary appropriations to carry out the
treaty for the payment of French spoliations to the United States. We have
quoted Mr. Wheaton on this point elsewhere (infra, p. 29); and the prin-
ciple is so familiar that it is not thought necessary to cite further authorities.
As we have already observed, Articles 6 and 9 of' the treaty deal with
a specific class of persons, and define their reciprocal rights in judicial pro-
ceedings and in the disposition of personal property in the two countries. It
is such treaties especially that have the force of municipal law.
So Heffter, whom Lawrence quotes in his notes to Wheaton (p. 459):
Public treaties, which concern the subjects and their individual relations, have the same
authority as the laws of the State if they have been regularly contracted and published.
And Lawrence continues:
It thus appears that, in this respect, the Constitution of the United States is only declara-
tory of the rule of the law of nations. A treaty constitutionally concluded and ratified, abro-
gates whatever law of any one of the States may be inconsistent therewith.
When the convention between the United States and Great Britain on the
subject of international copyright in works of science, literature, and art,
which was signed on the i7th of February, 1853, was pending in the Senate,
the British Minister invited the attention of the Secretary of State to a statute
of the United States of February 3, 1831, limiting the rights of property in
works of this nature to "persons being citizens of the United States or resident
therein," and raised the question whether as the American law then stood a real
reciprocity would be insured by the convention to British subjects, or whether
it would be necessary that a law of the United States Congress should be
passed to that effect. This question was referred to the Attorney-General of
the United States, who in a long and elaborate opinion, laid down the two
following propositions as established by decisions of the Supreme Court of
the United States.
I. A treaty, constitutionally concluded and ratified, abrogates whatever law of any one of
the States may be inconsistent therewith.
2. A treaty, assuming it to be made conformably to the Constitution in substance and form,
has the effect of repealing, under the general conditions of the legal doctrine that legesposte-
riores priores contrarias arrogant, all pre-existing federal law in conflict with it, whether un-
written, as law of nations, of admiralty, and common law, or written, as acts of Congress (6
Opinions Attorneys General, 291).
Treaties may operate not only upon such personal rights and privileges
as copyright and patents, removing municipal disabilities of aliens and non-
residents, but also upon the inheritance and conveyance of land in foreign
countries.
When a decision was made in the State of Iowa, adverse to the power of
the Federal Government to provide by treaty for the devise or descent to
aliens of real property, contrary to the policy of the State laws, the opinion
of the Attorney-General was taken on the subject at the suggestion of the
minister of Prussia, Baron de Gerolt, and was to this effect (8 Opinions At-
torneys General, 415):





THE CASE UNDER THE TREATY.


Whatever there is of general question in the matter, has been duly considered by the courts
of the United States in construing the 9th article of the treaty between the United States and
Great Britain of November 19, 1794, which stipulated in substance that British subjects might
continue to hold land in the United States, and grant, sell, and devise the same in like manner
as if resident citizens; and that neither they nor their heirs or assigns should, as respecting
said lands, be regarded as aliens, with reciprocal engagements of the same tenor on the part
of Great Britain. Here all impediment of aliena(,e was absolutely levelled /o the ground, de-
t spite the laws of the S/ate. It is the direct constitutional question in its fullest conditions.
Yet the Supreme court held that the stipulation was within the constutional powers of the
Union (Fairfax's lessee ,s. Hunter's lessee, 2 Cranch, p. 627 ; see also Weir vs. Hylton, 3
Dall., p. 242).
So in Great Britain the master of the rolls, giving judgment in Sutton
vs. Sutton (i Russell & Mylne's Reports, p. 663), in construing the same
treaty said :
The privileges of natives being reciprocally given, not only to the actual possessor of
lands, but to their heirs and assigns, it is a reasonable construction that it was the intention
of the treaty that the operation of the treaty should be peinanent/,'and not depend upon the
continuance of a state of peace.
Thus, by a process of reasoning, a treaty overruling a fundamental law
of England was not only put into effect in a particular case, affecting the
title of English subjects, but was declared to be a perpetual obligation, in-
destructible by war.
V. Attention is invited to an admission of the Haytien Secretary of
State of the Department of Justice in regard to the treaty and to the argu-
ment by which he sought to avoid its effect.
It appears that on the i8th of November, 1884, the learned secretary,
while Van Bokkelen was in prison, sent a communication to Mr. Langston,
United States minister at Port au Prince, expressing the following opinion :
From my point of view, Mr. Minister, I think that article 6 of the treaty gives to Amer-
ican citizens resident in Hayti the free access to the courts of the Republic in all cases where
they are interested, under the same conditions as natives, but with this restriction, "faurnish-
incg securities required in the case."
Now, to enjoy the benefit of assignment to which a stranger is not admitted, conformable
to article 794 of the Code of Procedure, by reason that if he was admitted to this benefit, not
having any real estate guaranty to furnish, lie might, by disappearing, render illusory all pur-
suit that might be directed against him, it is necessary, as in this case, that the American
defendant furnish, according to the provision of article 6, the securities required by his cred-
itors (" Foreign Relations," 1885, p. 486).
But the treaty does not say "securities required by his creditors;" it
says "furnishing security in the cases required;" i. c. by law. The "secur-
ity" mentioned in the treaty is used in connection with "free access to the
tribunals of justice," and must be taken in its ordinary sense; that is, for
costs, or, in cases of injunction or attachment, for damages. The Hay-
tien law does not require that persons seeking the benefit of judicial assign-
ment must own real property. But the Haytien law does prohibit aliens
from acquiring land. And it seems to have occurred to the learned Secretary
of State for the Department of Justice that if tile word "security" in the
treaty could be construed to mean real estate, and if creditors could insist




IS VAN BOKKELEN VS. HAYTI.

in the case of an alien applying for the benefit of judicial assignment, that
he must be a land-owner in his own right, it would be impossible for Van
Bokkelen, being an alien, to meet this condition. Admiration for the
ingenuity of the learned secretary's method of making the treaty inoperative
should not prevent the conclusion that the meaning of the treaty must indeed
be apparent when it is necessary to use such means to escape its obligation.
The reasoning of the Court of Cassation is no less significant. Aliens
"can only enjoy privileges derived from natural rights," and "nowhere in
the treaty is to be found that it confers upon the citizens of these
two countries the right to exercise the judicial assignment of property." It
makes no difference that in other countries aliens settled in business can make
such assignments on the same terms as citizens, or that such liberty is as wise
as it is humane. The treaty does not expressly mention "judicial assign-
ment as a reciprocal right of Haytiens in the United States and of Ameri-
cans in Hayti, and inasmuch as its enjoyment "is attached exclusively to the
quality of a Haytien," "Americans can not enjoy it in Hayti," although
Haytiens do enjoy it in the United States, and although the treaty provides
that "the citizens of the contracting parties shall have free access to the
tribunals of justice, in all cases to which they may be a party, on the same
terms which are granted by the laws and the usage of the country to native
citizens, furnishing security in the cases required, and for this purpose they
may employ in defense of their interests and rights such advocates, solicitors,
attorneys, and other agents as they may think proper, agreeably to the law
and usage of the country."
This seems to be one of the cases to which Vattell's first general maxim
for interpretation of treaties applies, to wit:
It is not allowable to interpret w/zat has no need of interpretation. When a deed is
worded in clear and precise terms,-when its meaning is evident, and leads to no absurd
conclusion,-there can be no reason for refusing to admit the meaning which such deed
naturally presents. To go elsewhere in search of conjectures in order to restrict or extend it,
is but an attempt to elude it. If this dangerous method be once admitted, there will be no
deed which it will not render useless. However luminous each clause may be-however
clear and precise the terms in which the deed is couched-all this will be of no avail if it
be allowed to go in quest of extraneous arguments to prove that it is not to be understood in
the sense which it naturally presents (Law of Nations, book 2, sec. 263). .





REVIEW OF MR. PRESTON'S ARGUMENT.


REVIEW OF MR. PRESTON'S ARGUMENTS.

Mr. Preston in his note of August 15, 1887, inclosing his "statement of
facts and points of law in the Van Bokkelen case, observes:
This claim has been during the past years the subject of much correspondence, most of
which has been published by the Government of the Unifed States. There are also many
judicial records and other papers connected therewith, some of which appear to be material
to the determination of the case. For this reason they are brought to the judicial notice of
the Honorable Secretary of State of the United States.
In thus submitting his statement, with certain exhibits on behalf of the
Haytien Government, Mr. Preston sets forth several conclusions, which, in
his judgment, are clearly supported by the facts and law of the case. The
first of these is that-
the case was decided only on an exception; that is to say, the Tribunal of Cassation of Hayti,
confirming the judgment of the court below, held, that, Van Bokkelen being an alien, the said
court had no jurisdiction over the subject-matter.
In the opening of his first brief Mr. Preston cialms that Van Bokkelen
should have proceeded in bankruptcy under the Code of Commerce instead
of applying, as he did, to the Civil Court of Port au Prince for his discharge
from jail on making a surrender of his property for the benefit of his credit-
ors under articles 787-795 of the Code of Civil Procedure. It is sufficient
to say that whether this objection could have been successfully raised or not
against Van Bokkelen's proceedings, it was not raised while they were
pending, and can not be considered now.
After a long discussion, much of which is but a repetition of the objec-
tions of the opposing creditors, and of the arguments of their counsel thereon,
which were made to the Civil Court when Van Bokkelen's petition was pend-
ing, and which the court refused to consider, Mr. Preston gives a history of the
proceedings in that matter (pp. 13-17), and refers for further details to the
judgment of the Civil Court to Exhibit No. 4. But he quotes enough to
show the entire incorrectness of his conclusion (quoted above) that the court
decided that it was without jurisdiction. It clearly appears from the record
(Exhibit 4) that the court took jurisdiction of the case in all its aspects and
bearings, and assumed to decide and did expressly decide what effect the
Treaty of 1864 had upon the provisions of the Haytien law excluding for-
eigners (Mtrang(ers) from the benefit of the cessionn de biens." If the Civil
Court of Port au Prince had dismissed the case (as our Court of Claims
would have been obliged to do in similar circumstances) because the ques-
tion involved arose under a treaty, that would have been a dismissal for want
of jurisdiction. But the Civil Court of Port au Prince, out of all the ques-






VAN BOKKELEN VS. IIAYTI.


tions submitted to it, chose to consider and determine only the question of
Van Bokkelen's rights under the treaty; and, on appeal, the Court of Cassa-
tion affirmed the judgment that, notwithstanding the provisions of the treaty,
the petitioner, because he was a foreigner, i. e., a citizen of the United States,
was excluded from the benefit of the cessionn de biens." That the court
below did not dismiss the case for want of jurisdiction, but undertook to
judicially determine the effect of the treaty, is made clear beyond cavil, not
only by the terms of its own judgment as found in Exhibit 4, but also by the
decision of the Court of Cassation, on appeal, as printed in "Foreign Rela-
tions for 1885," p. 499.
But Mr. Preston, on the 21St page of his statement, not only contradicts
his "conclusion that the case was dismissed for want of jurisdiction, but
goes so far as to criticize the decision which the Civil Court rendered in re-
gard to the effect of the treaty. He says:
Therefore, at the utmost, the judges of the court below erred in resting their decisions
upon grounds erroneous or open to discussion, and the only error, if any, which may possibly
be charged, was to set forth as a ground for their judgment that Van lBokkelen's case did not
fall within the scope of the treaty, instead of stating simply that petitioner had not taken the
steps required to be entitled to the right guaranteed him by said treaty stliulations.
Such a decision would, indeed, have created an entirely different situa-
tion. There would have been no denial of a precious right which, in the
judgment of the United States, had been secured by the Treaty of 1864 to
its citizens residing and doing business in Hayti-no breach of a sacred con-
ventional obligation entailing fatal injuries on one and imperiling.the inter-
ests of all the citizens of the United States residing and doing business in
that country. Unless the court had been palpably prejudiced and unfair, a
decision that Van Bokkelen's petition must be denied on grounds that would
have necessitated the denial of a Haytien's petition, would have occasioned
no reclamation or remonstrance on the part of the United States, This ap-
pears from Mr. Bayard's letter of March 28, 1885, to Mr. Langston (" For-
eign Relations," 1885, PP- 507-510), which, with all the diplomatic corre-
spondence on the subject, will be considered by the Arbitrator.
Mr. Preston devotes the bulk of his statement on behalf of the Haytien
Government to a support of the proposition that the Arbitrator should now
make the decision which the Civil Court of Port au Prince, with the whole
case before it, refused to make, i. e., that Van Bokkelen's petition was inad-
missible because of fatal defects in his proceedings or in his conduct. We
shall refer more particularly to this extraordinary contention when we come
to the examination of the second statement or brief which has been put into
the case by the Haytien Government. We now desire to make it clear that
the Court of Cassation expressly decided that the Civil Court was right not
only in its construction of the treaty, but also in its refusal to examine and
decide the other questions which were raised in the original proceedings. This
appears from the following passage in the opinion of the Court of Cassation
(" Foreign Relations," 1885, p. 499).





REVIEW OF MR. PRESTON S ARGUMENT.


Therefore, it follows, from that which precedes, that the judgment denounced has made a
good and just application of articles 769 of the Code of Civil Procedure and 569 of the Code
of Commerce, and a sound interpretation of the articles 6 and 9 of the treaty above cited.
For such reasons, and without there being any necessity of passing on the result of non-
acceptance raised by the parties (i. e., the objections of opposing creditors below), the court
rejects the appeal made by Mr. Charles Adrian Van Bokkelen against the judgment rendered
May 27, 1884, by the Civil Court of Port au Prince.
The Government of Hayti, judging by Mr. Preston's representations on
its behalf, and by the opinion of the Haytien Secretary of State of the
Department of Justice, quoted elsewhere, seems to admit, if we do not
altogether misapprehend their meaning, that the treaty has been miscon-
strued by the H-aytien courts. We have already quoted Mr. Preston's criti-
cism of the judgment of the Civil Court under which Van Bokkelen was kept
imprisoned, closing with the suggestion that the decision should have been
"simply that the petitioner had not taken the steps required to be entitled
to the rights guaranteed hin by said treaty stiulatin." In an earlier part
of his statement Mr. Preston says :
A few remarks on these proceedings appear to be necessary before the discussion of the
points of law is reached. In the first place, these proceedings clearly show that the case of
petitioner was dismissed on an exception, and that exception was sustained by the Tribunal of
Cassation. That the judgment on said exception was maintainable is not a proposition which
we expect to urge in this statement ibidd, p. 18, near the top).
And he closes that statement as follows:
Such is the claim of Van Bokkelen, and unless new and further points are raised on behalf
of claimant the Government of Hayti expects to confine the presentation of its case to what is
stated in this present brief.
Of course this will not prevent the Haytien Government from submitting
to the Arbitrator the best argument it can in support of the proposition that
the treaty was not intended to secure for citizens of the United States resid-
ing and doing business in Hayti the benefits of the judicial cessionn de biens; "
but it dces seem to suggest that the Haytien Government would much prefer
to rest its case on some ground other than the action of its highest judicial
tribunal.
The assertion that the case was "dismissed," into which the Haytien
Minister has been misled, is wholly in error, and the error is like that in his
allegation that the court decided that it was without jurisdiction. The record
(Exhibit 4) shows beyond question that Van Bokkelen's petition was denied
on the ground that he was a foreigner and that the Treaty of 1864 did not
relieve him from the disability attaching to foreigners under article 569 of
the Code of Commerce and article 794 of the Code of Civil Procedure.
He appealed from this decision, and, as we have seen, the Court of Cassation
not only affirmed the judgment as a sound construction of the treaty, but
said expressly that the court below was right in refusing to examine and de-
termine the other questions which were raised in the original proceedings.
But it seems to the Haytien Government absolutely necessary to ignore,
if not to repudiate, the decisions of its Civil Court and Court of Cassation





VAN BOKKELEN VS. IIAYTI.


and to try Van Bokkelen's petition now, just as if these decisions had never
been rendered and enforced against the deceased petitioner ; or rather, as
will appear hereafter in the progress of our examination of the second
statement of the Haytien Government, to obtain without any proper trial a
decision against Van Bokkelen on the objections raised in the original pro-
ceedings, on the extraordinary ground that the questions which the Civil
Court refused to examine and decide must now be taken as having been de-
cided against him.
In the 7th division of his first statement the Haytien Minister renews his
efforts to get behind the situation, which has been fixed by the decision of
the Haytien courts in this case, and to put the Arbitrator in the place of the
judges before they construed the treaty, and when they might have decided
Van Bokkelen's application upon its merits. With this end in view, Mr.
Preston remarks:
At the utmost the petition of Van B3okkelen was dismissed by the tribunal of Port au
Prince for want of jurisdiction; this was done upon an exception raised by the defendants to
the suit; if so, the court or high contracting parties, as the case may be, who for some reason
may acquire thereafter jurisdiction over said case, arc bound to inmuire into the merits of the
subject-matter as they came before the judges who sustained the exception raised by the party
defendant. In John [V. Green et al. vs. the Lznited States (18 C. Cls. R., 93) the Court of
Claims said :
2d. The defendants claim that the judgment of dismissal, as set forth in the 5th finding
of facts, is, under section 1093 of the Revised Statutes, a bar to recovery here. "I It
will be remembered that this court is forbidden to take jurisdiction of a claim more than six
years old, and the court having found as a fact that the claim in that case was more than six
years old, dismissed it for want of jurisdiction. Was this a final judgment on the claim ? The
claimants come to the threshold of the court and pray a hearing. They are informed that the
court is forbidden by the statute of limitation to listen to their prayer. They are turned away.
This is not an adjudication of their claim, but a refusal to hear it. Certainly this should not
deprive them of a hearing before a tribunal otherwise authorized to entertain their petition
(lu(hes's Case, 4 Wall., 232 ; Spicer's Case, 5 C. CIs. R. 34)."
Under the rulbs thus laid down by the Court of Claims, the exception sustained by the
courts of IIayti in the Van Bokkelen case being now set aside by the hi'h contracting parties,
thie merits of the case are wholly before them. If so, the next question is whether they may
hold that a citizen of Ilayti under circumstances identical to those presented in the case of
Van Bokkelen could be authorized to make an assignment under article 10o55 of the Civil
Code of Hayti. This must be answered in the negative, and thus the case of Van Bokhelen
is finally disposed of
Mr. Preston's effort still is to show that there has been no trial of the
petition which Van Bokkelen presented to the Civil Court of Port an Prince
to be allowed to take the benefit of the judicial cessionn de biens"-that
his petition was dismissed for want of jurisdiction-and that the Arbitrator
is now to take the place of the Civil Court of Port au Prince and try the
questions which it refused to consider. No better illustration of Mr. Preston's
misapprehension of the situation could be found than in Green's case,
which he has cited from the Court of Claims (supra). Green's claim had
been presented to the Treasury Department within six years from the time it
accrued; and while it was still pending there, but long after the statutory





REVIEW OF MR. PRESTON'S ARGUMENT. 23

limitation had expired, a petition was filed by the administrator of the original
claimant in the Court of Claims, and the court dismissed it on the ground
that the "claim accrued on the 3d of April, 1872, and the petition not having
been filed until the 14th of March 1881, the action is barred by the statute
of limitation" (18 C. Cls. R., 100oo). Subsequently the Treasury Department
referred the case to the Court of Claims under section 1063 of the Revised
Statutes, and on this second presentation of the case, overruling the objection
of the Government that the claim was barred by the previous judgment of
dismissal, the court held, upon the authority ofLiZfitts' Case (Ioo U. S., 663),
that the proceeding in the Court of Claims was a continuation of the pro-
ceedings in the Department, and, tf begun there in' time, could be heard in
the court subsequently. In other words, the previous dismissal of the case
on the ground that it was barred by the statute of limitation was held not to
be a final judgment on the claim when it came again to the court, through
the Treasury Department, free from the bar of the statute.
But in Van Bokkelen's case, as appears from Exhibit 4, after the presen-
tation of his petition, the proceedings went on before the court from day to
day; twelve of his creditors appeared; two of them made objections; the
objections were placed upon the record, and were traversed at length and
with great particularity and earnestness by the petitioner. All these objections
and the petitioner's replies are summarized by the court in its judgment, ac-
cording to the requirements of the Haytien code. One of the objections was
that the petitioner was a citizen of the United States, and that the laws of
Hayti excluded foreigners from the benefit of the judicial assignment. The
petitioner in reply set up the Treaty of 1864, and also the rule of public law
that a nation allowing foreigners to establish themselves in business and make
homes within its territory is bound to give them access to the courts on the
same terms as merchants who are citizens, in respect of all civil or commercial
concerns as distinguished from political. Instead of dismissing the case for
want of jurisdiction, the court took judicial notice of the treaty (against an
objection of one of the opposing creditors that the treaty had not been
properly pleaded) and construed the treaty, and decided that, notwithstand-
ing its provisions, the petition must be denied because the petitioner was a
foreigner.
Thus one of the petitioner's pleas-and the only one in which his sponsor,
the Government of the United States, can be considered as an interested
party-was judicially tried and determined against him by the courts of Hayti.
And that determination denied him justice, because it denied him the right,
to which he was entitled under the treaty, to have his application for release
from imprisonment decided on the merits by those courts.
Mr. Preston alludes to another case reported in 20 La. Ann., 364, but it
has no more relevancy to the question now at issue than has the case he cited
from the Couit of Claims. The opinion which he quotes from the Louisiana
case lays down the.familiar principle that the discharge by the creditors
can have no legal effects against the creditor making opposition unless





VAN BOKKELEN VS. HAYTI.


predicated upon a strict compliance with the indispensable demands of the
insolvent law." The question of such compliance with indispensable de-
mands" in Van Bokkelen's case could have been tried in the Civil Court
and taken up on appeal to the Court of Cassation if the Civil Court had
given effect to the treaty and considered his petition on its merits, although
it is not probable that any further opposition would have been made in view
of the fact that by Haytien law the judicial assignment only discharges the
debtor from his debts to the extent that they are paid by the proceeds of the
sale of the property assigned (Code Civile, article 1055, last section). Mr.
Preston's contention that the other questions raised in the original pro-
ceedings but not decided should now be tried on the merits could be enter-
tained only in case the creditors on the one hand and the deceased upon
the other hand were the parties before the present Arbitrator.
The Haytien Minister contends in the 8th division of his first state-
ment that if Van Bokkelen had been admitted to make an assignment, one
of his judgment-creditors, St. Aude, who had not been summoned and did
not appear in the preliminary proceedings, would have opposed the dis-
charge from imprisonment, and must have succeeded because the decree
which he had obtained from the Court of Cassation was "partly founded
on an allegation of fraud, which, as between Van Bokkelen and St. Aude,
had become res adjudicata." If the Haytien Minister means to say that
the decree determined that Van Bokkelen had defrauded St. Aude, or rather
that the judgment below sounded in fraud, we reply that the record (Exhibit
3) does not warrant the statement. But even if there had been such a judg-
ment, and it made the question of fraud in that particular transaction res
adjiaticata between the parties, it would not have concluded the court
on the question whether Van Bokkelen should be discharged from im-
prisonment. One may have suffered judgment in a civil action sounding
in tort, and may yet not be within the prescription of article 794 of the
Haytien Civil Code of Procedure, or article 569 of the Code of Com-
merce. Perhaps Mr. Preston may think that debtor against whom a
judgment sounding in tort has at any time been recovered, must, when
the question of his discharge from prison arises under the cessionn
de biens," be found by the court to be a fraudulent bankrupt-one of
the prescribed banqueroutiers frauduhlcux. But this is by no means the
case, the real question being, not whether the petitioner may not at
some prior period in his life have been guilty of fraud, but whether the
proffered assignment was made in good faith, and whether, in permitting him
to make it, the court would be aiding him to do some injustice to his cred-
itors and reserve an improper benefit to himself.
It is true, as stated by Mr. Preston, that the General Term of the Superior
Court of the city of New York refused to vacate the order of arrest which
had been granted in the suit of Hozey and Dole vs. AlcDonabl. At that time,
however, McDonald was not held on execution, but under an order issued
at the commencement of the action, upon conclusive proof of the most de-





REVIEW OF MR. PRESTON'S ARGUMENT.


liberate and contumacious fraud (13 J. & S., 45 N. Y. Superior Ct. Rs.,
606). Although imprisonment for debt has been abolished in New York,
defendants may be arrested and held to bail in civil actions for certain
causes. In these actions there is a combination of criminal and civil pro-
cedure in which punishment for the wrong is employed as a means for ob-
taining redress for the person who has suffered the injury; or, to use the
words of Mr. Chief Justice Daly in Audriot's Case (2 Daly, 35), referring to
the Stilwell act-
while it was thus the intention of the Legislature to sweep away a feature so disagreeable
to the intelligence of the age (imprisonment for mere debt), it was equally their intention to
subject the fraudulent debtor to the rigor of imprisonment; and by the passage of the act to
furnish to the defrauded creditor additional and more summary means to coerce the payment
of his claim (citing Townsend vs. Mforrill, 10 Wend, 582; Spear vs. Wardell, I N. Y., 144).
But no distinction is made between citizens and foreigners, and McDon-
ald, who was a British subject, and never made restitution of the large sum
which he had wrongfully converted to his own use, was released under the
act of 1886, limiting the time for which the body of a fraudulent judgment-
debtor can be held on execution to six months at the longest.
In Van Bokkelen's case, however, it was not for fraud that his petition
was denied, but because he was a citizen of the United States; and it can
not now be presumed that his discharge would have been opposed by St.
Aude, or that such opposition would have been successful.
The Haytien Government wants to have all the possibilities lying behind
the if," which it invokes so frequently, determined against Van Bokkelen.
We say that there is no if in the question before the Arbitrator- that he
is to decide upon what was actually done-not upon the various and con-
flicting possibilities which suggest themselves to the imagination when we
suppose that some other course had been taken by the Haytien courts.
In the 9th division of his first statement, Mr. Preston makes the remark-
able assertion that if Van Bokkelen was arrested and deprived of his liberty
for a certain period of time, it was nolt done by the request or by any act of the
HIaylien Government." And this freedom of Hayti from liability for the acts
of her courts in denying to an American citizen a most important privilege
secured to him (as we claim) by treaty, is asserted on the ground that civil
suits were brought against him by a citizen of New York." We scarcely
need to say that it makes no difference who puts the laws in motion. In the
administration of its laws, a government acts through its courts. In the
judicial domain the courts are the government. If the laws (including
treaties) are rightly executed by the courts, no reclamations can properly be
made against the government. Under this novel theory of Mr. Preston's,
all that a government would need to do to escape responsibility for a denial
of justice by its courts would be to plead that justice was denied at the suit
of one of the fellow-citizens of the victim. This proposition is sufficiently
refuted by saying that it would reverse the relation of the courts to parties
before them, and render the judicial tribunals, whenever a foreigner is
plaintiff, helpless and irresponsible instruments of injustice.





VAN BOKKELEN VS. IIAYTI.


Mr. Preston, alluding to Mr. Langston's statement that the Haytien Gov-
ernment had provided for the payment of the judgments against Van Bokkelen
(p. 28, near the top), says:
In one respect at least this statement is inaccurate; private individuals satisfied the judg-
ments on record, and thereupon Van Bokkelen was released. Where the money applied to
satisfy said judgments came from is a mere matter of surmise.
The admitted facts of the case, the situation at the time of Van Bokke-
len's release, and the guarded language of the Haytien Minister just quoted,
seem to leave no doubt in regard to the source of the funds with which "pri-
vate individuals" satisfied those judgments. When the Haytien Government
persisted in keeping Van Bokkelen in jail for the reason that as a citizen of
the United States he was not entitled to take the benefit of the judicial as-
signment act, a new suit was instituted in which the United States was
plaintiff and Hayti herself was defendant. The cause of this international
controversy was Van Bokkelen's continued imprisonment, which, the United
States maintained, was in violation of the Treaty of 1864; and to bring this
controversy to a close, and perhaps with a view of limiting its pecuniary lia-
bility, the Haytien Government delivered Van Bokkelen's body to the Min-
ister of the United States at Port au Prince. But in making that delivery
the Haytien Government did not recognize its obligations under the treaty;
on the contrary, it delivered him as a person against whom there was no
longer any legal cause of detention-not as a citizen of the United States
for whom his Government had secured by treaty "free access to the tribunals
of justice in all cases to which he might be a party on the same terms which
are granted by the laws and usage of the country to native citizens."
Replying to an observation of Mr. Bayard, that "it was only when Van
Bokkelen was denied certain rights which a Haytien debtor would have under
the insolvency act, that this Government claimed his treaty rights," Mr.
Preston says in the ioth division of his first statement (p. 28) that "under
like circumstances a Haytien citizen would have been sent to jail and kept
there until he had satisfied his judgment creditors." If a Haytien citizen,
imprisoned for debt, had petitioned the Civil Court for his discharge under
the judicial assignment act, the presumption is that he would not have been
remanded to jail until the material questions raised in the proceedings had
been judicially determined against him. But, as we have seen, although
Van Bokkelen submitted himself to the jurisdiction of the court, and sought
its judgment on all the allegations made against his discharge by his oppos-
ing creditors, his petition was denied, and he was kept in prison on the sole
and exclusive ground that he was a citizen of the United States, and that the
treaty did not entitle him to the benefit of a judicial assignment on the
same terms as citizens of Hayti.
In drawing his first statement (p. 29) to a close, Mr. Preston charges Van
Bokkelen with falsehood and fraud, because his representations in regard to
his financial condition were different at different times. These charges are
formulated, as follows:





REVIEW OF MR. PRESTON'S ARGUMENT.


In his statement of assets and liabilities, of February 16, 1883, Van Bokkelen claims to
be solvent. In his pleadings, in 1884, when he petitioned the tribunal-for making an assign-
ment, he pleaded that he was insolvent. In the presence of such bold, open con-
tradictions, we submit that it hardly matters in the case under consideration which horn of the
dilemma Van Bokkelen takes. If he was solvent he was guilty of a gross fraud in attempt-
ing to cheat his creditors, who had either uncontested claims or who had obtained judgments
against him. If he was insolvent le was bound to prove his good faith, and in order to do so
he was in duty bound to comply with the law, which he did not do; and upon this ground
he could not avail himself of his American nationality. tHe was bound to stay in jail until
the judgments against him were wholly satisfied, either by himself or by some third person
who consented or volunteered to do it.

But he claimed, and the Government of the United States maintains,
that he was entitled under the treaty to prove his good faith and obtain his
discharge from prison by surrendering all his property for the benefit of his
creditors. Surely a debtor can not, with any show of justice or reason, be
charged with "attempting to cheat his creditors" when he seeks to assign
all his property for their benefit, whether his assets are greater or less than
his liabilities. There is not the slightest -...-ti-. in the record that he
was trying or had ever tried to keep back anything or reserve any benefit
for himself. And as to the different estimates which he made of his finan-
cial condition at different times, the record shows, as we have already re-
marked, that among his assets were claims against Haytien citizens for
large amounts, and a claim against the Haytien Government for breach of
contract; also, that he and his family were interested in Haytien bonds,
which, although greatly depreciated, might yet be honored by the Govern-
ment ("Foreign Relations," 1884, pp. 306, 307; ibid, 1885, p. 532, top).
His pecuniary situation, therefore, might look hopeful at one time and des-
perate at another; and in February, 1883, his claims might have seemed col-
lectible and his condition solvent, while in March, 1884, when he looked at
his affairs from the inside of "the common jail of Portau Prince," into which
he had been thrust illegally while sick in body and mind, they might have
seemed hopeless. After all the injuries inflicted upon him in Hayti, despite
his rights as an American citizen under the treaty, it is to be regretted that it
should be found necessary to make these charges of fraud, which can only
aggravate the original wrongs and injuries of which he was the victim. While
he was alive his imprisonment, after he sought leave of the court to make an
entire surrender of his property for the benefit of his creditors, was never de-
fended by the Haytien authorities on any other ground than his foreign citi-
zenship. It was expressly on this ground, and on this ground only, that the
Civil Court denied his petition; and it was expressly on this ground, and
this ground only, that the denial was affirmed by the Court of Cassation.
In all the diplomatic correspondence, including elaborate defenses of Hayti's
position in this matter by her highest officers of justice and state, no other
ground is mentioned. And it was on this ground, and this ground only,
that the President of Hayti vindicated the action of his Government in that
portion of his annual message which he devoted to this case (" Foreign Re-





VAN BOKKELEN VS. IIAVTI.


lations," I885, pp. 535, 536). Only now and here have these injurious
charges of fraud which were never considered by the courts or the Govern-
ment of Hayti been advanced on the part of that Government. And while
their evident object is to mitigate damages, or obscure the fact that it was
solely in his character of an American citizen that the Haytien.Government
denied him justice and did him such wrong, we are sure that no such effect
will follow.
In his second statement or brief, which he has submitted on behalf of the
Haytien Government, Mr. Preston abandons his proposition that Van Bok-
kelen's case was dismissed for want of jurisdiction, and claims that in all its
aspects it was before the court and was finally disposed of by its decision.
And, although, as we have seen, the court denied Van Bokkelen's petition for
no other reason than that he was a citizen of the United States, Mr. Preston
in different language renews his previous contention that the Arbitrator should
now examine all the other questions that were raised in the case, and if he is
of opinion that for any other reason the court might properly have made the
same decision, then he must decide in favor of the Haytien Government.
Mr. Preston inquires:
Could a citizen of Hayti under circumstances identical to those disclosed in Van Bokke-
len's case make an assignment and thus liberate himself from imprisonment ?
Then, answering his own question, he adds:
It is submitted that the record of said judgment discloses such a state of facts as to dis-
qualify a citizen of Hayti from exercising the very right that Van Bokkelen claims for himself.
Now, as has already been shown, the record of the judgment makes it
clear that the court rejected Van Bokkelen's petition solely and exclusively
because he was a foreigner, i. e., a citizen of the United States; and the same
record shows that every other objection urged by the opposing creditors was
traversed by the petitioner either as being false in fact or insufficient in law.
For example, it was objected that he had not shown his misfortunes as re-
quired by the code-pecuniary losses from no fault of his own. He replied
through his counsel, Mr. Thebaud, that his misfortunes were patent and mat-
ters of public notoriety. An examination of Exhibit 4, pp. 23-25, will show
with what particularity the petitioner explained his losses and defended his
good faith.
Not one of the issues so raised was ever decided by the Haytien courts.
On the contrary, it having been held that Van Bokkelen, being a foreigner,
could not claim the privilege of the cessionn de biens," it was declared by
the courts to be "useless to examine the other points and pleadings of the
parties relating to the form and merits of the demand." Hence Ao allega-
tion of irregularity or want of good faith made in the original proceedings
can now be treated as having been determined against the claimant.
The Haytien Minister next introduces a translation of the judgment, which,
according to Haytien procedure, is a summary of the proceedings, prepared
by the court, including, in this case, the petition, the objections of opposing






REVIEW OF MR. PRESTON'S ARGUMENT.


creditors, the petitioner's reply, and the motions and arguments of the re-
spective counsel. Whereupon the minister remarks (p. 9):
The aforesaid judgment shows clearly that the court had before them the whole question
as raised by the pleadings.

Then, quoting from a letter in which Mr. Hamilton Fish referred to the
familiar and indisputable rule that "in order to justify reclamation against
the final decision of a court of last resort, it must be shown that there has
been a manifest failure of justice," Mr. Preston makes the remarkable claim
to which we have alluded, and states the scope and effect of the judgment
rendered upon Bokkelen's petition in the following language (p. o10):

In the light of this rule of construction, the judgment of the tribunal of Port au Prince
must be regarded is a final disposition of all the questions raised by the pleadings; and, if
so, it must be held by this Government that Van liokkelen was not a bona fide debtor entitled
to the benefice de cession as contemplated in article 1054 of the Civil Code.

There are two fatal objections to the proposition that the Government of
the United States is concluded by the judgment of the Haytien courts :
i. If anything is well settled in public law it is that one of the parties to
a treaty can not properly claim that its interpretation of the treaty, whether
the interpretation is made by its legislature, judiciary, or executive, is con-
clusive upon the other party. On this point Vattel observes:
The third general maxim or principle, on the subject of interpretation, is that neither the
one nor the other of the parties interested in the contract has a rikht to interJret the deed or
treaty according to his own fancy. For if you are at liberty to affix whatever meaning you
please to my promise, you will have the power of obliging me to do whatever you choose
contrary to my intention, and beyond my real engagements; and, on the other hand, if I am
allowed to explain my promises as I please, I may render them vain and illusory by giving
them a meaning quite different from that which they presented to you, and in which you must
have understood them at the time of your accepting them. (Law of Nations, book 2, chap.
xvii., sec. 265.)
Referring to the controversy between the United States and France, when
the legislative power of the latter State refused to vote the moneys required
by the Convention of 1831, by which indemnities were provided for spolia-
tions on American commerce, Mr. Wheaton said:

Neither government has anything to do with the auxiliary legislative measures .necessary,
on the part of the other State, to give effect to the treaty. The nation is responsible to the
government of the other nation for its non-execution, whether the fziluire to f/fill it proceeds
from the omission of one or other of the departments of ils governmentt to perform its dut, in
respect to it. The omission here is on the part of the legislature; but it might have been on
the part of the judicial department. The Court of Cassation might have refused to render
some judtinment necessary) to give effect to the treat'. The King can not compel the cham-
bers, neither can he compAi the courts; but the nation is not the less responsible for the breach
of faith thus arising out of the discordant action of the internal machinery of its constitution
(Lawrence's 1Wheaton, p. 459, note).
The general rule is laid down by Wharton, in conformity with Vattel and
Wheaton, as follows (International Law Digest, vol. 2, sec. 238):





VAN BOKKELEN VS. HAYTI.


A construction of a treaty, also, by the courts of one of the contracting sovereigns can
only have municipal operationn ; nor can such construction be set up, even by the sovereign by
whose courts it is pronounced, as an authority when conducting negotiations with the other
sovereign as to the meaning of the treaty (supra, secs. 9, 133, 139). That meaning is a
matter of international settl/eenl. If the parties can not agree in reference to it, it must be
referred to arbitration or, as the last resort, to war.
II. We have already taken objection to the claim of the Haytien
Government, that the question of Van Bokkelen's good faith must be held
to have been finally determined against him by the Civil Court and the
Court of Cassation. That objection is that Van Bokkelen's good faith was
one of the very questions which, although it was submitted by the petitioner
and the opposing creditors and argued by their counsel to the court, the
court refused to decide, and said it was useless to examine, for the reason
that, whether an honest and unfortunate debtor or not, Van Bokkelen was
admittedly a citizen of the United States, and by that fact alone was excluded
from the benefit of the cession de biens." The court was of opinion that
it was of no use to consider whether the petitioner's proceedings had been
regular or whether his insolvency was the result of misfortune, so long as
the question remained undecided whether the treaty entitled him to claim
his discharge as if he were a citizen of Hayti. So the court took the ques-
tion of the petitioner's right under the treaty into consideration, and decided
that it did not entitle him to the benefits of this wise and merciful provision
of the Haytien law. The court undoubtedly could have decided, if of that
opinion, that his proceedings were irregular, but then they could doubtless have
been amended. The court could have ordered testimony to be taken on the
question of his good faith and financial misfortunes if his own statements
and his counsel's brief upon those points had left any serious doubt in the
minds of the judges; but that would have taken time, and the effect of the
treaty would have been left undetermined. If the court had not desired to
construe the treaty, and had felt sure that the petitioner's conduct had been
such as would have prevented him from obtaining his discharge even if he
had been a citizen of Hayti, the court could have dismissed the petition on
that ground. If probabilities may be considered, it does not seem unreason-
able to surmise that the court would have preferred to decide against Van
Bokkelen for some cause that would have prevented a citizen of Hayti from
taking the benefit of the cession de biens," had it seemed clear to the
judges that any such cause existed. But seeing that Van Bokkelen made
such an unreserved submission of his case, and all the questions involved,
to the court, and that the court kept him in prison simply and solely because
he was a foreigner, it is wholly inadmissible, now that he is dead, to try the
questions which the court refused to consider when a fair trial was possible.
We respectfully submit that for all the purposes of this arbitration it must
be held that every question is closed, except the one question whether the
decision of the Civil Court of Port au Prince that the treaty did not entitle
Van Bokkelen to claim his discharge under the judicial assignment act was
a denial of justice. For the purposes of this arbitration it should be held






REVIEW OF MR. PRESTON'S ARGUMENT.


that the petitioner would have been discharged from prison if the court had
decided that the treaty gave him the right to make the application on the
same terms as Haytien citizens. He submitted the question of his misfortunes
and good faith to the court. The court could have decided, if of that opinion,
as we have already suggested, that he had been guilty of such conduct as
would have excluded a Haytien citizen from the desired privilege, and, there-
fore, was not entitled to his discharge. But the court made no such decision.
The presumption is that he was honest. If his admitted insolvency raised a
presumption of dishonesty, that presumption was rebutted by his explanation,
which is summarized in the judicial record of the proceedings (Exhibit 4, PP.
23-25).
Mr. Preston advances in his second argument or brief the novel idea that
under article 148 of the Haytien Code of Civil Procedure the judgment in
the Van Bokkelen case was null and void. His first proposition in regard
to the action of the court is, as we have seen, that it dismissed Van Bokkelen's
case for want of jurisdiction ; his second proposition is that the judgment
of the tribunal of Port au Prince must be regarded as a final disposition
against Van Bokkelen of all the questions raised by the pleadings;" and his
third proposition is that Van Bokkelen did not exhaust the legal remedies
afforded by municipal law, because, on account of an omission on the part of
the judges to "pass upon all of the questions raised, the judgment was null
and void, and Van Bokkelen was therefore entitled to the extraordinary
remedy known as la requete civile" It is evident from an examination of
the article of the code referred to by Mr. Preston that the judges are not
required to pass upon all the points raised in the pleadings in the sense
of judicially determining them, but only of taking notice or mentioning them
in the judicial summary of the proceedings which in Haytien procedure con-
stitutes the judgment. And one of the objects of this requirement seems to
be to furnish evidence to the parties in the judgment itself that none of their
points have been overlooked. Furthermore, as observed by the Third As-
sistant Secretary in his memorandum (p. 8)-
it also appears that the re-opening of the judgment under that article can be had only
upon the request of those who have been parties or of those who have been duly brought
into court."
Mr. Preston's quotations from the decision of the French Court of Cas-
sation in Napier et al. vs. The/ Duke of Rich/nonda (pp. 14-16 of second
brief) do not sustain the views which he advances. If it could be said with
any show of reason in regard to the intention of the treaty of -864, for
which we contend, as these illustrious judges said in regard to the intention
which had been ascribed in the judgment below to the treaty which they
were considering, that "it is impossible to suppose that the intention of the
plenipotentiaries was to control the laws of descent between co-hcirs, to
grant to one the whole property in the land to the exclusion of the others
Without any indemnity to these latter;" or that "such an intention would be
in conflict with all ihe provisions of the treaty," then, indeed, the position of





VAN BOKKELEN VS. HAYTI.


the Haytien Government would be very different. But, in any case, as we
have seen from the authorities already cited, Great Britain could have made
reclamation against France for denying justice to the Duke, if Great Britain
had considered that France had denied him any right to which he was en-
titled by treaty, just as the United States can now call Hayti to account for
refusing to treat Van Bokkelen as a Haytien citizen in the matter of his ap-
plication for the benefit of judicial assignment according to articles 6 and 9
of the Treaty of 1864 between the two Republics.





THE QUESTION OF DAMAGES.


It has been shown that Van Bokkelen's original arrest and imprisonment
on the 5th of March, 1884, were adjudged by a Haytien court to have been
illegal, and that if he had not been thus wrongfully put in jail, his imprison-
ment could not have been continued as it was at the instigation of his creditors
by means of the process of recommendation "'' already described. His im-
prisonment from the 5th of March, 1884, until he applied for the benefit of
judicial assignment on the 24th of the next month, is admittedly without
justification in law. The refusal to admit him to the benefit of judicial as-
signment, and the consequent continuance of his imprisonment on the ground
that he was an alien, we have shown to be in violation of his rights as a citizen
of the United States under the Treaty of 1864.
But there are certain elements other than the denial of justice and the
unlawful invasion of that personal liberty so highly prized and jealously
guarded by the law, which, we submit, should be considered by the Arbi-
trator in determining the amount of damages to be awarded. Van Bokkelen's
brokerage business had been prosperous and valuable. It was the uncollect-
able debts due to him from Haytiens, and the depreciation of Haytien bonds
that had embarrassed him. If he had not been imprisoned he would have had
opportunity to retrieve his losses. This opportunity was not only taken from
him, but his credit and standing in the community were fatally injured.
The state of his health is also to be considered. It was precarious. He
was suffering from rheumatism and disposed to consumption ; his condition
was made known to the authorities by his written statements, and by certifi-
cates from three physicians. He was thus less able to endure the mental and
bodily sufferings entailed upon him by his imprisonment. This is an aggra-
vation rather than a mitigation of the injury.
The condition of the jail is also to be considered. It was not a debtors'
prison, but the common jail of Port au Prince. In his appeal to Mr. Fre-
linghuysen, March 19, 1884, Van Bokkelen speaks of being "confined with
felons and lunatics," and "surrounded by filth; and of the danger to his





THE QUESTION OF DAMAFES.


health in such "a Calcutta hole" ("Foreign Relations," 1884, p. 306).
I Mr. Langston secured Van Bokkelen's removal to the "military hospital,"
in the course of the summer, and, in advising Mr. Frelinghuysen of the
change, remarked "that the prison of this city is really not fit for the con-
finement of debtors, that the military hospital is very little better, and that
Mr. Van B1okkelen is quite unwell, suffering from rheumatism and predispo-
sition to consumption ibidd, p. 308)." In a letter to Mr. Frelinghuysen,
dated November 15, 1884, Van Bokkelen's father spoke of him as "confined
in a hospital amongst incurable, liable at any time to be returned to the vile
prison from which, through the kindness of Mr. Langston, he was removed "
(ibid, p. 336); and Van Bokkelen himself, in a letter written on the i9th of
the same month to Mr. Frelinghuysen, begs that if not immediately released
he "may be put in some place fit for a man more or less used to the comforts
of a home, for where I am now I am constantly in contact with persons hav-
ing the seven-year itch, yellow fever, with sores infecting the air-a well man
is liable to acquire sickness, much less a sick man to get well (" Foreign
Relations," 1885, pp. 479, 480). In January, 1885, Mr. Langston closes a
dispatch to Mr. Frelinghuysen as follows: "Meantime, our citizen, as I believe
and maintain, is illegally restrained of his liberty, and I have demanded his
freedom. It does not matter that by reason of the feeble condition of his
health, on my demands, he is permitted to occupy quarters, miserable enough,
at the military hospital of this city ibidd, p. 485). In a communication to
the Haytien Government demanding Van Bokkelen's "immediate release,"
Mr. Langston speaks of Van Bokkelen's "feeble and declining health"
ibidd, p. 492). His desperate condition-bodily and mental-is expressed
in the following letter:

Air. C. A. Van Bokkelen lo Air. FrZling/uysen.
PORT AU PRINCE PRISON,
December iS, 1884.
MIR. SECRETARY:
The persistent refusal of the Government of Hayti to grant my release on rights accorded
by the treaty and demanded by the IIon. J. M. Langston in the name of the United States,
and as against the rules of all civilized nations, will make me liable at any moment to be
thrown back into prison and probable death, unless Mr. Langston is sustained by the Depart-
ment in his demand that the articles 6 and 9 fully accord me the simple right of liberty of
my person, not a discharge from indebtedness.
\My only resource will be to fly the country and seek justice ou my native soil, being obliged
to abandon my interest here, all on account of my nationality, which can clearly be proved to
amount to thousands of dollars in landed property [in right of his, wife] and cash accounts.
Even now being on the ground and unable to have justice, what would my absence be ? I
, l have already suffered; my credit and business ruined (also my health), which cannot be paid
by $1oo,ooo and to which our minister here can testify.
I again ask that the Department inform me, by first occasion what its intentions are in re-
gard to having justice done me, that I may put my life in security before the present adminis-
tration leaves office; that I may be in a position to continue to try and have justice done me.
I am, &c.,
C. A. VAN BOKKELEN.





VAN BIOKKELEN VS. IIAYTI.


Soon afterwards, the Court of Cassation affirmed the judgment of the
court below, denying the prisoner's petition on the ground that he was an
alien, and shortly thereafter he was removed from the military hospital and
confined again in the common jail, from which he appealed once more to
his Government:
Mr. C. A. Van Bokkelen to Air. Bayard.
IN PRISON, PORT AU PRINCE,
HAYTI, April 9, izSS.
MR. SECRETARY:
On the 28th of June, 1884, at the request of the United States Minister Resident, and in
accordance with instructions from Washington, I was transferred from this loathsome jail to
the military hospital, where I was allowed to remain until the 21st March, when I was or-
dered by the director, in obedience to instructions received from the attorney of the Govern-
ment, on a certificate of the doctor that I was a well man, to be conducted to the prison, with
felons and thieves.
I protested in writing to the inspector-general, and furnished proof of the fact that my
condition was worse than when I entered the hospital, and that during iny stay there no doctor
(public) had prescribed for me, nor had I been supplied either with food or medicine, but was
compelled at times to buy water for use.
The director immediately ordered my installment at the hospital; the doctor informed the
Government commissary of the fact, who, in turn, informed the Minister of Justice, who ap-
proved the act of humanity
On Holy Thursday the inspector-general, accompanied by the director, called and gave
me the assurance that, knowing my condition, I should not be disturbed.
Judge of my surprise when, on the 4th April, at 12 m., I was made to walk in the hot
sun, with three plasters on me, to the jail, where I was confined without a word of explana-
tion, and where I now am.
I am, &c.,
C. A. VAN BOKKELEN.
For six weeks longer he was kept in jail, and then, after an imprisonment
which had lasted nearly fifteen months, he was conducted on the 27th of
May, 1885, by an officer of the Haytien Government from the common jail
to the United States legation and delivered to Mr. Langston, the United
States Minister.
It is difficult adequately to portray the misery and wretchedness of Van
Bokkelen's condition during his imprisonment. For to his physical suffering
must be added the mental horror and anguish arising from his environment;
the sense of injustice and humiliation; the alternations of hope and despond-
ency; his anxiety for the future-for himself, his wife, and his children--
deepened by his consciousness of approaching death. That he keenly felt
the degradation and shame of his imprisonment appears from the demands
which he made in his last statements of his case to the Secretary of State,
that the Haytien Government should not only pay damages, but make "some
proper and public announcement so that all might know that it was "not
for any criminal act" that he had been "thrown into a loathsome prison"
ibidd, p. 539).
In all free communities personal liberty is sacred. The men who sit on
juries are apt to visit its invasion with extravagant penalties. A famous case






THE QUESTION OF DAMAGES.


of false imprisonment was tried several years ago in this District. Congress
through its Speaker ordered a witness into custody. He was as well-housed
and entertained as he would have been at a first-rate hotel. But he was
wrongfully held-he was not his own man-and one jury after another gave
him verdicts for thirty-five days luxurious imprisonment which the courts felt
obliged to set aside as excessive. The first verdict was $ioo,ooo, the second
$6o,ooo, and the third $37,500. Finally the court said that if he would file
a remittitur of $17,500 of the last verdict, he might have judgment for $2o,ooo
(Thompson vs. Ailbourn, McArth. and Mackay, p. 401).
A learned and interesting review of the subject of damages for false im-
prisonment is to be found in Mr. Justice Cox's opinion in that case. Kil-
bourn recovered about $600 a day for his detention. But there could
scarcely be a more marked contrast between conditions of imprisonment
than Kilbourn's and Van Bokkelen's. For each day of his imprisonment
Van Bokkelen demanded, before he died, less than one-half of what Kilbourn
received for each day of his imprisonment. We think that Van Bokkelen's
demands in view of his sufferings and losses were reasonable. This, however,
is a matter entirely in the discretion of the Arbitrator.
But there is another aspect of this case which should not escape attention.
It is noticed by all writers who treat of reclamations made by one nation
against another for injuries done to individual citizens. In such cases the
injured citizen is not to be regarded simply as a private person, but as a
member of the body politic, and an injury to him is an injury to the nation
to which he belongs. And it is for the national as well as the private wrong
that the Government of the United States claims redress.
Nor should the wider relations of this case as affecting the two countries
be overlooked. This view of the subject is presented to the Arbitrator in
the words of the Secretary of State of the United States which we quote from
a dispatch addressed by him to Mr. Langston before Van Bokkelen's re-
lease ("Foreign Relations," 1885, pp. 509, 510o):
The grievance to Mr. Van Bokkelen is serious. lie has been confined, though in failing
health, for quite a year in a prison, and by this proceeding not only are his means of support-
ing himself and paying his creditors for the time destroyed, but his business, should he
survive, has received a serious if not fatal shock. But the injury to the commercial interests
both of IIayti and of the United States is vastly more far reaching. No citizen of the United
States will be hereafter willing to do business in IIayti if, for indebtedness to which no taint
of criminality is imputed, he is to be subjected to imprisonment so long and so oppressive as
to involve the destruction of his means of livelihood as well as injury to his health and misery
to his family. It is not to the interest of either HIayti or the United Statss that such a con-
dition of things should exist.
Reparation is impossible, but the award should be commensurate with the
injuries inflicted and large enough not to belittle the principles involved.
Respectfully submitted,
CRAMMOND KENNEDY,
MARSTON NILES,
Counsel.
WASHINGTON, D. C., August 8, 1888.