Award of the referee in the Van Bokkelen case

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Award of the referee in the Van Bokkelen case
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Claims vs -- United States -- Haiti   ( lcsh )
Réclamations contre Haïti -- États-Unis   ( ram )
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"Alex. Porter Morse, referee"--P. 38.

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AWARD OF THE REFEREE



IN THE





VAN BOKKELEN CASE.


WASHINGTON:
GOVERNMENT PRINTING OFFICE.
1889.





HAYTI: VAN BOKKELEN CLAIM.


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 ADRIEN VAN BOKKELEN.


Sized Mlay 24, i888.


The United States of America and
the Republic of Hayti, being mutu-
ally 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, Sec-
retary of State of the United States,
and Stephen Preston, Envoy Extra-
ordinary and Minister Plenipotentiary
of the Republic of Hayti, have agreed
upon and signed the following pro-
tocol:
i. It having been claimed on the
part of the United States that the
imprisonment of Charles Adrien Van
Bokkelen, a citizen of the United
States, in Hayti, was in derogation
of the rights to which he was entitled
as a citizen of the United States under
the treaties between the United States
and Hayti, which the Government of
the latter country denies, it is agreed
that the questions raised in the corres-
pondence between the two Govern-
ments in regard to the imprisonment
of the said Van Bokkelen shall be re-
ferred to the decision of a person to be
agreed upon by the Secretary of State
of the United States and the Envoy
Extraordinary and Minister Plenipo-
tentiary of the Republic of Hayti.


Les Etats-Unis d'Amdrique et la
R6publique d'Haiti 6tant 6galement
d6sireux de maintenir les bonnes re-
lations qui ont si longtemps exist
entire eux, et pour cette raison, d'6car-
ter toutes les causes de diff6rend, leurs
repr6sentants respectifs, A savoir,
Thomas F. Bayard, Secr6taire d'Etat
des Etats-Unis, et Stephen Preston,
Envoy6 Extraordinaire et Ministre
Plenipotentiaire de la Rdpublique
d'Haiti, se sont mis d'accord et ont
sign le protocol suivant:
i. Comme il a 6t6 soutenu de la
part des Etats-Unis que 1'emprisonne-
ment de Charles Adrien Van Bokke-
len, citoyen des Etats-Unis, en Haiti,
a eu lieu en derogation des droits qui
lui appartenaient comme citoyen des
Etats-Unis, d'apres les traits entire
les Etats-Unis et Haiti, cequi nie le
Gouvernement du dernier Etat, il est
convenu que les questions soulevtes
dans la correspondence entire les deux
Gouvernements au sujet de l'empri-
sonnement du dit Van Bokkelen,
seront r6f6rdes a la decision d'une
personnele qui, sera d6signde par le
Secr6taire d'Etat des Etats-Unis et
l'Envoyd Extraordinaire et Ministre
Plenipotentiaire d'Haiti.









2. The referee so chosen shall
decide the case upon such papers as
may be presented to him by the Sec-
retary of State of the United States
and the Minister of Hayti respect-
ively, within two months after the
date of his appointment; but he shall
not take into consideration any ques-
tion 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 fur-
ther argument, oral or written, to be
made within five months from the
date of his appointment. He shall
render his decision within six months
from said date.
4. A reasonable fee to the Referee
shall be paid by the Government of
Hayti.
5. Any award made shall be final
and conclusive and, if in favor of the
claimant, shall be paid by the Govern-
ment of Hayti 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.


2. L'Arbitre ainsi choisi, d&cidera
sur telles pieces qui peuvent etre pro-
duites devant lui par le Secr6taire
d'Etat des Etats-Unis et le Ministre
d'Haiti, respectivement, dansles deux
mois qui suivront la date de sa nomi-
nation; mais il ne prendra en con-
sid6ration aucune question qui n'a
pas 6te soulev6e dans. la correspond-
ance entire les deux Gouvernements,
ant6rieure A la date de la signature de
ce protocole.
3. Chaque Gouvernement soumel-
tra avec les documents presents par
lui, un memoire A 1'appui, et si l'ar-
bitre le desire il pourra demander
d'autres plaidoifries, orales ou Acrites,
qui devront etre faites dans les cinq
mois qui suivront la date de sa nomi-
nation. 11 rendra sa decision dans
les six mois suivant la dite date.
4. Des honoraires raisonnables,
seront pays par le Gouvernement
d'Haiti A l'Arbitre.
5. Toute sentence arbitrale rendue,
sera finale et concluante; et, si elle
est en faveur du r6clamant, le mon-
tant sera paye par le Gouvernement
d'Haiti, dans les douze'(i 2) mois qui
suivront la date de cette sentence.
Fait, en double expedition, A Wash-
ington ce 24 jour de Mai mil huit
cent quatre-vingt-huit.


T. F. BAYARD.
STEPHEN PRESTON.


[SEAL.]
[SEAL.]
















AWARD OF THE REFEREE


In the matter of the Claim of Charles Adrian Van Bok-
kelen, a citizen of the United States, against
the Republic of Hayti.


In pursuance of the Protocol, dated May 24, i888, between Hon.
Thos. F. Bayard, Secretary of State of the United States, and the Hon.
Stephen Preston, Envoy Extraordinary and Minister Plenipotentiary of the
Republic of Hayti, representing their respective Governments, after having
made a declaration that I would impartially and carefully examine and
decide the case submitted to me, in good faith, to the best of my judgment,
and conformably to the principles of law applicable thereto, I have inves-
tigated the claim of Charles Adrian Van Bokkelen, a citizen of the United
States, against the Republic of Hayti, and I now make the following state-
ment and award :

CLAIM OF CHARLES ADRIAN VAN BOCKKELEN.

This claim grows out of the imprisonment, during the years 1884 and
1885, at Port-au-Prince, of Charles Adrian Van Bokkelen, a citizen of the
United States, by the authorities of the Republic of Hayti. The imprison-
ment continued for a period of nearly fifteen (15) months; and the claim
made on behalf of Van Bokkelen is in the form of a demand upon Hayti
for pecuniary indemnity in the sum of one hundred and thirteen thousand
six hundred dollars ($113,600oo).
Although the essential facts are within a small compass, and the question
submitted for decision to the referee is single and explicit, 1 the case has
been the subject of a multiplicity of proceedings and pleadings, judicial,
executive, and diplomatic; and has given rise to voluminous correspondence
and elaborate argumentation on the part of the two Governments.
In the disposition of this case I shall confine myself as closely as may be
practicable to a presentation of the essential matters, and to the determina-
tion of the single and explicit issue suggested by the terms of the Protocol.
It is proper, however, to state here, that at an early stage of the submis-
sicn of this case to me as referee, a demurrer was interposed by the defendant
Government, and an elaborate brief was presented in support of said de-
murrer. After consideration of this brief, I notified counsel for the defend-
SProtocol, May 24, 1888, articles x and 2.








ant Government that there was no provision under the submission for special
pleading, and that the Protocol specified and indicated in express terms
the subject matter and the question submitted for determination. As a
matter of fact, the argument which was entitled, Brief on behalf of de-
fendant Government in support of demurrer," is a full and exhaustive expo-
sition of the material points relied on by the defense, and covers fifty-five
(55) type-written folios.
In addition, the limitation of time within which the referee was required
to render his decision precludes the idea of the interposition of special
pleading.
And further as to the propriety of a demurrer, general or special, under
this arbitration, it is to be said that a State, like an individual, accused ot
having inflicted wrong upon another, may shape its defense against the
charge with reference to the facts, or to the law,. 1 Under the terms of the
Protocol, as well as from the correspondence heretofore passed between the
contracting parties, it seems clear that there is not now and never was any
denial by the defendant Government of the substantive facts which give rise
to this claim.
Subsequently complainant Government and the counsel for the respective
Governments were notified that I desired briefs on the subject of the measure
of damages. These additional briefs were duly filed and have been con-
sidered.
The defense set up by the defendant Government is rested upon a col-
lision between the treaty and certain articles in the municipal codes of Hayti.
And this issue may only be determined by reference to the treaty stipula-
tions and to the provisions contained in the municipal statutes.

STATENIENT OF FACTS.

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 at Port-au-Prince.
In 188o he married a Haytian lady, the widow of General P. Lorquet. an
owner of 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 i5th 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 in the
Civil Court of Port-au-Prince, preparatory to applying 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 indebtedness. At
that time, in Hayti, imprisonment for mere debt had not been abolished.
1 Phillimore, International I aw, Volume III, third edition, page 64.








Three other judgments were subsequently recovered against Van Bok-
kelen, 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 im-
prisonment. These judgments are enumerated in Mr. Langston's dispatch,
of January 14, 1885, to Mr. Frelinghuysen, 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 Haytian.
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 i5th of February,
1883, the proceedings seem to have been postponed by notices or writs until
the following year.
On or about the 5th of March, 1884, Van Bokkelen was arrested on the
judgment of Toeplitz & Co., and confined in the common jail of Port-au-
Prince. 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 Haytian authorities, published in the official journal,
"it was made obligatory that before a foreigner could be placed in jail the
complaint 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." On the 18th of the same month it was judicially de-
termined that Van Bokkelen's arrest was illegal. But before he was dis-
charged other creditors, availing themselves of a provision of Haytian 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.
It is to be noted that these creditors took advantage of Van Bokkelen's
illegal imprisonment to keel) him from getting out of jail by a method which
would not have enabled them to put him in.
Van Bokkelen thereupon, through his counsel, applied to the Civil Court
of Port-au-Prince for the benefit of judicial assignment.
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.
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.
These opposing creditors 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 Htrangers) from the
benefit of this provision of Haytian law.
All the objections of the opposing creditors were traversed by the peti-
tioner. His counsel argued that the schedule of his assets and liabilities was
sufficient; that his misfortunes and good faith were manifest; that the
Treaty of 1864 between Hayti and the United States repealed article 794
of the Code of Civil Procedure and article 569 of the Code of Commerce
so far as the disability attaching to the petitioner in his character of Ameri-
can 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 Haytian wife, who owned real property 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 Government, a
just construction of the term /es Htrangers required that he should not be
treated as a foreigner or a stranger, but as a domiciled merchant 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 inde-
pendent 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 ii of the Civil Code of Hayti.
The opposing creditors (Toeplitz & Co.) rejoined that they had no
knowledge of the treaty and had not been served with a copy; and there-
fore moved for information in that regard at the cost of the petitioner.
Petitioner's counsel replied that the treaty was not a document, but a law of
which no one was supposed to be ignorant.
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.
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."
That question the court decided in favor of Van Bokkelen, as follows:
Whereas a treaty, concluded between Hayti and the United States of America, Novem-
ber 3, 1864, sanctioned by the Senate, and promulgated by the executive branch of the Gov-
ernment, is a law of the State ;
Whereas article 75 of the Code of Civil Procedure renders it obligatory upon the peti-
tioner 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 cannot 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.
On the main question, involving the rights of Van Bokkelen under the
treaty, and deciding upon the objection of his alienage based upon article
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,
after having deliberated, denied Van Bokkelen's application.







His application to make the judicial assignment having been denied by
the Civil Court of Port-au-Prince, Van Bokkelen was kept in jail. He ap-
pealed 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 appli-
cation he had been illegally arrested the previous March, made any opposi-
tion. 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.
The Secretary of State of the United States was informed of this decis-
ion 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 de-
nial of justice in Van Bokkelen's case, and that he should be released from
jail forthwith, in the following terms:

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,
s contrary to what are now generally recognized principles, of international law. It is
maintained, 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 Haytian 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 Haytian 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 Hayti by leaving a copy thereof
with the minister of foreign affairs.
The response of the Government of IHayti should be promptly communicated to this De-
partment.

On the 17th of April, 1885, Mr. Langston sent a copy of this dispatch
to the Haytian Government and urged the prisoner's immediate release, in-
viting attention also to his feeble and failing health." The reply of the
Haytian Government, twelve days later, was an elaborate defense of Van
Bokkelen's imprisonment -solely, however, upon the ground that he was
an alien.
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. On the 15th of May the United States
Minister sent another note to the Haytian Government, insisting on Van
Bokkelen's immediate release, and on the afternoon of the 27th of that








month Van Bokkelen was conducted to the United States legation by an at-
torney of the Haytian Government, on its order, as stated, and thus given
his release and liberty." On the 5th of the following June, Mr. Langston
received a note from the Haytian Secretary of State for Foreign Affairs,
maintaining the position which had been held throughout by the Haytian
Government, and closing as follows:
I understand that Mr. Van Bokkelen 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 instance,
and the prisoner's unquestionable right under the treaty to make the judicial
cession and obtain his release, had instructed the Minister to use every proper
effort with the Haytian Government to that end.
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 Haytian Gov-
ernment. In response, Mr. Bayard addressed a note to the United States
Minister at Port-au-Prince, dated October 2, 1885, instructing him as follows:

Air. B'ayard to Afr. Thonijson.
DEPARTMENT OF STATE,
WASHINGTON, October 2, i88.
SIR: I herewith inclose a copy of a letter from Mr. C. A. Van Bokkelen, of the Y9th
ultimo, in reference to his illegal imprisonment at Port-au-Prince and his claim for damages in
consequence 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 impris-
oned by the IIaytian 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, etc.,
T. F. BAYARD.
To this Mr. Thompson, who had succeeded Mr. Langston, made the fol-
lowing reply:
Afr. BTlioipsoln to Afi. Bayar/.

LEGATION OF TIHE UNITED STATES,
PORT-AU-PRINCE, IAYVTI, AXoenmberg 1888.
SIR : 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. IHe was buried on the 2d in-








stant, 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 Ilaytian Government to the sum of $113,000 some
time before his death, and will continue to press the same, as advised by the Department.
I am, etc.,
JOHN E. W. THOMPSON.

Subsequent negotiations between the two Governments have resulted in
an agreement to submit the claim to arbitration.

THE QUESTIONS TO BIE ARBITRATED.

Two questions arise on the facts:
1. Was Van Bokkelen entitled, by the terms of the Treaty between the
Republic of Hayti and the United States, concluded November 3, 1864, to
be discharged from prison on the same terms as a citizen of Hayti impris-
oned for the same cause?
2. If there has been a violation by Hayti of the treaty rights -of Van
Bokkelen, what should Hayti pay to the United States, by way of damages,
for the benefit of the representatives of the deceased?
The first question submitted by the two Governments for the decision of
the referee is contained in the first article of the Protocol of May 24, 1888,
and is in the following words:


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 Ilayti, was in derogation of the
rights to which he was entitled as a citizen of
the United States under the treaties between
the United States and Ilayti, which the Gov-
ernment of the latter country denies, it is
agreed that the questions raised in the corre-
spondence between the two Governments in
regard to the imprisonment of the said Van
Bokkelen shall be referred to the decision of
a person to be agreed upon, etc. (English
text, article I.)


Comme il a W6t soutenu de la part des Ptats-
Unis que lemprisonnement de Charles Adrian
Van BJokkelen, citoyen des Etats-Unis, en
Haiti, a eu lieu en derogation des droits qui
lui appartenaient comme citoyen des Etats-
Unis, d'apris les traits entire les Etats-Unis
et Haiti, ce qui nie le Gouvernement du der-
nier Etat, il est convenu que les questions
soulev6es dans la correspondence entire les
deux Gouvernements au sujet de lemprisonne-
ment du dit Van lBokkelen, seront r6fdrees a
la decision d'une personnel qui sera designee,
etc. (French text, article I.)


It appears clearly from the language of article i, that the subject matter
of this arbitration is the imprisonment in Hayti of Charles Adrian Van Bok-
kelen, a citizen of the United States, by the authorities of Hayti.
The contention of the complainant Government is that said imprisonment
was in derogation of Van Bokkelen's rights as a citizen of the United States
under the treaties, and the answer of the defendant Government, while ad-
mitting the American citizenship and the fact of imprisonment of Van Bok-
kelen by the authorities of Hayti, denies that his imprisonment was in dero-
gation of treaty rights. The contention of the complainant Government is
based upon the language of articles 6 and 9 of the Treaty between the United
States and Hayti, concluded November 3, 1864.







The defendant Government does not deny the existence of the treaty or
the guaranty of the rights and privileges which it solemnly announces. But
the substance of the contention on the part of the defendant Government
is that this right or privilege of free access to the tribunals of justice in
Hayti is defeated and nullified by the language and force of article
794, Civil Code of Procedure, and article 569, section 2, Code of Com-
merce. This contention has been sustained by the courts of first and last
resort of Hayti, and has been proclaimed by the Executive of Hayti.1
Under this decision of the courts and executive of Hayti, Van Bokkelen
was imprisoned in the common jail for nearly fifteen months.
Counsel on behalf of defendant Government submit various propositions -
of fact and law, from which they proceed to argue, which are founded upon
or connected with the preliminary proceedings and pleadings in the courts
of Hayti anterior to the judgment and decrees of the Haytian courts. These
propositions refer to a multitude of defenses, nearly all of which were regu-
larly interposed in defense in the court of first instance and the court of last
resort. But all these several defenses have been withdrawn from the referee
as a result of the action of the courts of Hayti, resting their decisions upon a
single specific ground (which has been accepted by the contracting parties
as the sole question now at issue), and which has been submitted to the de-
cision of the referee. (Protocol, May 24, 1888.)
In this view of the case the referee is not at liberty to go behind the situ-
ation and enter upon an original inquiry as to whether the schedule (bilan)
was regularly prepared and submitted; whether the circumstances of the
case indicated fraud on Van Bokkelen's part; whether a Haytian citizen,
under similar circumstances, would have been discharged from imprisonment
upon making a judicial assignment, etc. And if, at any time, I shall inci-
dentally advert to such matters, it will be because it seemed unavoidable in
the particular connection in which it occurs.

I proceed now to consider various contentions of counsel for the defend-
ant Government.
The first brief, which is entitled a "brief on behalf of the defendant
Government in support of demurrer," insists:
i. That the language employed by Van Bokkelen in the proceedings
before the tribunals at Port-au-Prince in April, 1884, in which he describes
himself as an American citizen by birth, "residing at Port-au-Prince and
domiciled at New York, United States of America," "defines exactly the
international status of claimant." 2 In answer to this suggestion it may be
admitted that the general proposition is substantially correct. It is taken to
mean that Van Bokkelen was a citizen of the United States at the time of
the occurrence out of which his claim against Hayti arose; but it is not un-
derstood that Van Bokkelen's description of himself as residing at Port-au-

1 Exhibit No. 4, pp. 32-34; Foreign Relations, 1885, pp. 449, 535-536.
2 First brief of counsel for defendant Government, page 3.







Prince and domiciled at New York," has any other or further significance
than to place him within the guaranties of protection of articles 6 and 9
of the Treaty of November 3, 1864. It is to be observed, however, that
" the international status of claimant" must be determined not by descrip-
tion, but by the facts of his case. As a matter of fact, the American citi-
zenship of Van Bokkelen has never been questioned.
2. The contention of counsel for defendant Government that Van Bok-
kelen, during the years 1882 and 1883, was a merchant doing brokerage
business at Port-au-Prince may be conceded. And the recital of the details
of the litigation in preliminary suits between Van Bokkelen and his various
creditors may be accepted as correct without having any controlling influence
upon the determination of the claim now submitted to the referee.
3. Counsel for the defendant Government argue "that only one ground
of error was assigned and pressed by Van Bokkelen on his appeal upon the
judgment of the Civil Court to the Court of Cassation, while the judgment of
the lower court disclosed the fact that "at least twelve questions of law or fact
were raised by the various pleadings of the parties." 2 And counsel say that
Van Bokkelen "sought to reverse the said judgment upon one sole ground,
namely, that article 794 of the Code of Civil Procedure and Article 569 of
the Code of Commerce excluded aliens from the operation of the laws regu-
lating the cessio bonorum ; and that said articles were contrary to articles 6
and 9 of the treaty between the United States and Hayti." 3
In answer to this suggestion, it seems only necessary to say that the court
of first instance and the court of last resort based their final decision on the
single ground stated by them.
It may be added that by the very language of the Protocol, the single
ground upon which Van Bokkelen "assigned and pressed his appeal to the
Court of Cassation has been adopted as the very question constituting the
subject matter of this arbitration. In this view the anterior and interme-
diary proceedings, whether by way of diplomatic intervention, or as the
result of the various procedures of the local courts of Hayti, can not be held
to have any controlling influence so far as the result of the present arbitra-
tion is concerned.
In a word, the Protocol-which must be the guide and grant of jurisdic-
tion for the referee-crystallizes and formulates the substantial grounds of
past discussion and controversy in a single, definite issue, and furnishes the
rule of decision. The issue presented by the Protocol is whether the acts of
the authorities of Hayti in respect to Van Bokkelen, a citizen of the United
States, were in derogation of his rights as such citizen; and the rule fur-
nished for the decision of the question raised by the issue are the treaties
between Hayti and the United States.4

I First brief of counsel for defendant Government, pages 4, 5, and 6.
2 First brief of counsel for defendant Government, pages 6 and 7.
a First brief of counsel for defendant Government, page 7.
4 Protocol, May 24, 1888, article r.







4. The contention of counsel for defendant Government is that full faith
and credit must be given to the tribunals of Port-au-Prince." 1
In answer to this point, reference is made to what has just been said in
reply to the first point. It may be added that the ground of complaint
made by the complainant Government is that the judgment of the Haytian
courts is in contravention of treaty stipulation, which the defendant Govern-
ment denies. And to decide this very issue, the question has been, by con-
sent of the contracting parties, referred to international arbitration.
The position of the defendant Government as to this point would, if
admitted, preclude any examination or decision by the referee; and would
result in making the referee simply the register or recorder of the acts and
decrees of the local courts of Hayti. This may not be, for the reason that
the Protocol imposes upon the referee the decision of the question raised in
the correspondence 2 and found in the record. For a rule and guide for his
decision, he is referred to the treaties between Hayti and the United States.
And for the interpretation of treaty language and intention, whenever con-
troversy arises, reference must be had to the law of nations and to interna-
tional jurisprudence. It is a general maxim, when it is a question of inter-
national controversy, that neither of the contracting parties has a right to
interpret a treaty according to its own fancy. 3
5. Another argument of counsel fordefendant Governmentis, that citizen
of Hayti, who intends to avail himself of the benefit of judicial assignment
cessionn de biens), must establish affirmatively that he has been unfortunate
and that he has acted in good faith. This point is elaborated with much
detail, both in the brief accompanying the note of the Haytian Minister,4
addressed to the Secretary of State of the United States, August 15, 1887,
as well as in the brief now under consideration. The answer to this propo-
sition and argument is that all this may be conceded without its having any
influence upon the present controversy, and for this reason: The acts of the
judicial tribunals and of the executive of Hayti, of which the complainant
Government complains, are rested upon different and independent grounds.
And these grounds are that Van Bokkelen was not permitted free access to
the tribunals of Hayti on the same terms as citizens of Hayti. And as has
been before stated, the referee is confined to the decision of the single spe-
cific question presented by the terms of the Protocol.
6. The further contention of counsel for the defendant Government5 is that
the jurisprudence of France, Belgium, and Hayti has constantly "maintained
a distinction as between aliens and citizens, and have held that aliens have
enjoyed natural rights, but that they were excluded from civil rights." The
answer to this proposition is, that if any such distinction between what are
here styled "natural" rights and civil" rights existed in Hayti, they were

1 First brief of counsel for defendant Government, page 8.
2 Protocol, May 24, 1888, article r.
3 Vattel, book 2, chapter xvii, page 265.
*4 Ion. Stephen Preston.
Firt brief, page 16.








abolished in respect to citizens of the United States commorant in Hayti at
the time of the occurrences herein complained of, by virtue of articles 6
and 9 of the Treaty of November 3, 1864. It is not, therefore, necessary to
enter into any consideration as to the nice distinction between natural, civil,
and political rights. These terms, however, have a well-understood meaning
in the law of nations and in modern international jurisprudence. In addi-
tion to protection to life, liberty, and property, the class which exercises
political rights in a community participates in the governing power either by
themselves or representatives. The class which enjoys civil rights is equally
entitled to protection to life, liberty, and property; but the individuals com-
posing it can not exercise political rights under any claim founded simply
upon possession of civil rights. But the record and correspondence clearly
show that the extent of Van 13okkelen's claim was a demand, formally and
regularly submitted to the tribunals and to the executive power of Hayti,
that he might be admitted to the enjoyment of those strictly civil rights
guaranteed to him by the Treaty of November 3, 1864. And it would appear
that even in Hayti the exercise of "civil" rights is independent of the exer-
cise of "political" rights; and that the capacity of a citizen resides in the
combination of civil and political rights.1
7. The counsel for defendant Government submit that, "under the civil
law nothing short of a clear, positive treaty stipulation can enable an alien
to claim the exercise of civil rights." All this may be admitted and yet
the concession would not avail the defendant Government upon the case
under consideration, and for the following reasons :
(a) It is here a question of international and not civil law.
(b) And a "clear, positive treaty stipulation" does by express language
enable an alien, if he be a citizen of the United States and within the juris-
diction of Hayti, to claim the exercise of civil rights. 2
8. Counsel for defendant Government make a point that at one time Van
Bokkelen described himself as domiciledd in New York.''" It can not be
perceived how that fact, although it should be conceded-which it is not-
could be held to except him from the guaranties contained in the treaty.
The American citizenship of Van Bokkelen being conceded by the terms of
the Protocol, the question of domicile cuts no figure in the case.
9. Counsel for defendant Government insist that the true meaning of the
second section of article 6 of the Treaty of November 3, 1864, is disclosed
by "careful examination of articles 794 of the Civil Code of Procedure and
article 569, section 2, of the Code of Commerce."
Counsel say that the second section of article 6 of the treaty is simply
intended to secure to Americans, against any' possible repeal, the rights
guarantied them by said articles of the codes, and the construction given
them by the Haytian courts.4 The answer to this suggestion is obvious.
1 Civil Code ol IIayti, article 2.
2 Articles 6 and 9, Treaty of November 3, 1864.
SF first brief of defendant Government, page 18i
First brief of counsel for defendant Government, page 19.








It is negatived by the very language of article i of the Protocol of May 24,
1888. And the guaranty of enjoyment of civil rights (i. e., the admission
to the tribunals of justice) by citizens of the United States resident or
domiciled in Hayti on the same terms with native citizens was not limited
to time, but was to avail them during the existence and operation of the
treaty.
By provisions of article 42, Treaty of November 3, 1864, the treaty was
to remain in force for the term of eight years, dating from the exchange of
ratifications; and if one year before the expiration of that period neither
of the contracting parties shall have given notice to the other of its in-
tention to terminate the same, it shall continue in force, from year to year,
until one year after an official notification to terminate the same, as aforesaid."
It is not denied that this treaty is still in force.
Counsel for defendant Government seek to restrain and confine the
treaty guaranty of free access to the tribunals of justice" to very nar-
row limits; and it is insisted that this clause could work no change in the
laws of Hayti, either general or special; and it is said that "the meaning of
the words free access, used in the treaty," constituted a guaranty of free
access to courts 'upon the same terms as the civil law and a constant practice
provided for them. I But the answer and denial to that proposition is con-
tained in the language of the treaty itself, which provides the conditions,
namely, '' on the same terms which are granted by the laws and usage of the
country to native citizens." And the connection in which this language occurs
makes the inference irresistible that it included all the steps and processes of
the judicial tribunals of either of the contracting parties.
10. Counsel for defendant Government lay great stress upon the declara-
tion that "American citizens sojourning, residing, or trading in Hayti," must
be held to conform to the municipal laws of Hayti. 2 There can be no question
but that such an obligation was imposed upon all citizens of the United
States in Hayti. But, in this case, there is no complaint that Van Bokkelen,
in respect to this matter, did not yield obedience to the municipal laws in
operation in Hayti, except as they were modified or repealed by treaty stipu-
lations. And the converse of the proposition is equally true, namely, that
American citizens sojourning, residing, or trading in Hayti are under the
protection of public law, and the treaty stipulations to which Hayti and the
United States are the contracting parties.
ii. Counsel for defendant Government devote much space to the con-
sideration of the nature and character of the proceeding known as judicial
cessio bonorum. And it is submitted "that the application made to the
court, to be admitted to the benefit of cession de biens can not be regarded
in the light of a suit to enforce a right." To this it may be replied that no
such contention is presented in this controversy. In the view of the referee,

1 First brief of counsel for defendant Government, page 21.
2 First brief of counsel for defendant Government, page 23.
a First brief of counsel for defendant Government, page 25.








the judicial cessio bonorum does not appear to be in the nature of an inde-
pendent suit. On the contrary, it is, as I shall further on indicate, a de-
pendent process or step in the ordinary procedure.
12. It is further submitted on behalf of defendant Government, that at
the utmost, "argument that the second section of article 6 of the treaty has
repealed the provisions of civil law discriminating against aliens in the matter
of judicial cession de biens, rests upon a repeal by implication of the afore-
stated articles of the Code of Civil Procedure and of the Code of Com-
merce." 1
It may be conceded that the cases agree in saying that repeals by impli-
cation are not favored. But the very authorities cited by counsel hold that
in case of positive repugnancy between the provisions of new laws and those
of the old, the former operate to repeal the latter. 2
In the case under consideration, the provisions of the municipal codes ot
Hayti, or rather the interpretation sought to be put upon them by counsel
for defendant Government, are absolutely repugnant to the stipulations in
the treaty of a later date.
13. It is further contended that if the subdivision of paragraph 2 of article
6 implies the repeal of articles 794 and 569 of the Code of Civil Procedure and
the Code of Commerce, it would just as well mean that the fundamental
distinction underlying the whole system of civil law, as it exists in France
or Hayti, has been repealed by implication, and that at best a few obscure
words, which referred exclusively to remedies and not to rights, inserted in
the treaty stipulation, operate as a repeal of important parts of the whole
municipal legislation of Hayti.".2
It is not perceived that such a result would follow, and it is not under-
stood that the contention of complainant Government extends to make any
such claim or demand that would result in revolutionizing the judicial system
of Hayti. On the contrary, as has been indicated, the whole scope and
effect of the guaranty clauses in articles 6 and 9 of the Treaty of November
3, 1864, stipulating for free access to the tribunals of justice of the re-
spective States, is to place the citizens of Hayti and the citizens of the United
States, as to the administration of justice, upon the same footing. It is not
clear what force there is in the suggestion that the guaranties in the treaty
stipulations must be confined to remedies and not to rights." For,
whether free access to the tribunals of a country for the purpose of prosecut-
ing or defending a suit be described as a remedy or as a right, is unimpor-
tant. It is in this relation a matter of description rather than of substance.
It is the proceeding with which we are concerned, and not the name of it.
The right or privilege to make a judicial assignment, under appropriate cir-
cumstances, involves the application of a remedy recognized by the law of
Hayti.
First brief of counsel for defendant Government, page 27.
'State vs. Hall, 17 Wall., U. S., 425-430; Crow Dog, 1o9 U. S., 555-570; Arthur vs. Homer, 96 U. S.,
137, 140; Harford vs. U. S., 3 Cranch., U. S., rog.
SFirst brief of counsel for defendant Government, page 29.








Remedies," says Mr. Justice Story, are part of the consequences of
contracts."1 It is laid down by the same author as a general rule, that all
foreigners, sui juris, and not otherwise specially disabled by the law of the
place where the suit is brought, may there maintain suits to vindicate their
rights and redress their wrongs."''2 It is true, that until the Treaty of No-
vember 3, 1864, went into operation, citizens of the United States, in com-
mon with other aliens, were excluded, by the letter of the municipal law
from the benefits of the judicial assignment. But from the date of the ex-
change of ratifications of that treaty, the benefit of the right or the remedy
of judicial assignment was accorded to citizens of the United States. Free
access to the tribunals of justice, etc.," means a right to stand in court,
either voluntarily as plaintiff, or involuntarily as defendant; and after ap-
pearance, the suitors or parties litigant must have a right to invoke all the
usual, ordinary, and necessary processes of the tribunal, whether it be for
purposes of prosecution or by way of defense. In the case under consider-
ation Van Bokkelen was arraigned before the local courts of Hayti, in some
of the suits at least, in invitum; and as an incident of compulsory process,
he was imprisoned. Being within the jurisdiction and power of the Hay-
tian court, the treaty stipulations were intended to secure to him, a citizen
of the United States, the right to avail himself of all the instrumentalities
and processes of the tribunals of justice.
14. It is further contended on behalf of defendant Government that
article 9, Treaty November 3, 1864, must be construed in the light of the
civil law, and certain provisions of the Haytian Civil Code in regard to the
transmission of property. 3
But the Protocol makes the treaties between the United States and Hayti
the sources of reference for the guidance of the referee. And consequently
the obligations and covenants of a reciprocal character, which are contained
in these treaties, constitute the supreme law as between the complainant and
defendant Governments. 4 In the view which the referee has taken of the
question submitted to him, the stipulations and guaranties contained in ar-
ticle 6 of the treaty are in themselves sufficient to justify the claim of Van
Bokkelen to stand in justice in the courts of Hayti on the same terms with
native citizens. However, it does not seem to the referee that the cumula-
tive force of the stipulations in article 9 in respect to the transmission of
property can be lessened by the argument of the defendant Government in-
sisting upon a restrictive interpretation of the latter article. The construc-
tion sought to be put upon article 9 is cramped, narrow, and forced.
15. It is insisted on behalf of defendant Government that "the whole scope
and purpose of the treaty was plainly not to abrogate any law, but to recog-
nize all existing laws in either country and subject the temporary resident to
the operation and protection of these laws."
1 Conflict of Laws, section 337.
2 Conflict of Laws, section 565.
a lrief of counsel for defendant Government, pages 31-33.
4 Protocol, article i.
5 First brief of counsel for defendant Government, page 39.








The answers to this proposition are obvious. The temporary resident was
already subject to the operation and the protection of the laws of the respec-
tive countries; but this protection was unequal. In the United States the
Haytian citizen could not, in the absence of contumacious fraud, be denied
the privilege of making a judicial assignment, or what was equivalent to it,
for the benefit of his creditors ; nor could he be imprisoned, under the cir-
cumstances in which Van Bokkelen was held in bodily confinement. In
Hayti, on the contrary, prior to the Treaty of November 3, 1864, a citizen of
the United States was liable, by the letter of the Haytian statutes, to be sum-
marily arrested and imprisoned for an indefinite period of time, and was
excluded from the benefit of judicial assignment. It was to remedy this and
other inequalities that articles 6 and 9 were incorporated into the treaty.
And their immediate effect and purpose was to relieve the citizens of either of
the contracting parties from odious and harsh discrimination of the local laws
and to place them on the same footing. If the contention of the defendant
Government should be admitted, it would render null and void the stipula-
tions of articles 6 and 9. The object of the treaty, as expressed in its open-
ing paragraph, is to make lasting and firm the friendship and good under-
standing 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 will be hereafter noticed.
16. In regard to the suggestion on behalf of defendant Government, charg-
ing Van Bokkelen with falsehood and fraud, because his representations in re-
gard to his financial condition were different at different times, it may be said
that there is no proof in the record that Van Bokkelen was endeavoring, or
ever attempted, to keel) back or conceal anything or reserve any benefit for
had himself. And the different estimateswhich he is charged with having made
at different times may be easily reconciled with his changed status and the
condition in which he found himself. But whatever presumptions may have
availed against Van Bokkelen during the preliminary proceedings in the court
of first instance, they may not, in the absence of positive proof, have any
force or weight in the consideration of the question now under arbitration.
The courts of Hayti and the executive have nowhere rested their action de-
nying to Van Bokkelen the right to make a judicial assignment upon any
charge or suggestion of fraud or informality in these proceedings. And the
starting point for the decision under this arbitration must be the action of
the courts and the executive of Hayti.
17. Counsel for the defendant Government say the "second section, article
6, opens the courts of the country to the alien upon the same terms as they
are opened to native citizens; but it does not clainge or propose to change any
i 'ifgs / -to Ameri'can citizens." And it is insisted that the repeated
references to the laws and usages of the country must be taken to mean that
American citizens possess no rights in Hayti except those which are specified
in the municipal statutes. And the contention then is, that the rule of inter-
V B-2






18

pretation which is to be applied in this case is that laid down by M. Pradier
Fod6r6:1 "Lastly, treaties and conventions must be construed in the light
which agrees with public order established among the contracting nations, and
more particularly with their principles of public law and with the organiza-
tion of their jurisdiction; in case of doubt, and unless there are irrecusable
proofs, the construction whiich is in harmony with the civil and public laws of
France must prevail over that which woukd create a privileged and exceptional
right."
It is not perceived how the contention can be sustained which insists that
the treaty does not change or propose to change any rights pertaining.to
American citizens, when, in view of the language of the treaty, its stipula-
tions provide for the guaranty and protection and vindication of the rights
of the citizens of the contracting parties on the same terms. The position
of defendant Government does not receive any support from the citation
from M. Pradier Fod6re, for the reason that the author is referring to the
publicc order'" and the civil and public laws," and not to special or private
rights and remedies.
M. Pradier Fodere further on says :
II est done manifeste qu' aucune des nations n'a le droit d' interpreter a son gre les con-
ditions obscures du contract, ou d'en deleguer 1'examen a ses tribunaux, pas plus qu'il a est
loisible a la parties qui a consent une convention synallagmatique d' interpreter elle-meme, ou
de faire interpreter par un mandataire a son choix, les clauses obscures ou ambigues que con-
tiendrait cette convention. 2
18. It is further insisted that it is "upon the claimant to establish as an af-
firmative proposition that the treaty of 1864, between the United States and
Hayti has repealed the provisions of articles 794 of the Code of Civil Pro-
cedure and 569 of the Code of Commerce." This contention has been con-
sidered elsewhere in this opinion at some length.

Three cases decided by the Court of Cassation in France, at long intervals
of time, are principally relied upon by counsel for defendant Government
in support of the contention that articles 6 and 9 of the treaty may not be
interpreted to abrogate or repeal the municipal statutes in repugnance or con-
flict therewith. The first and most important is the case of Napier and others
vs. the Duke of Richmond, which is cited in support of the contention that
" diplomatic treaties must be construed in the light where they are in har-
mony with public and civil law in use among the contracting nations." This
decision, which was rendered on the 24th of June, 1839, holds that treaties
between nations are not of the character of simple administrative and execu-
tive acts, but that they possess the character of laws; that the courts are
competent to interpret treaties between nations on the occasion of private
(individual) contests which refer to the particular treaties; that when a treaty
has stipulated for the giving tp to an alien of immovable property located
x Cours de droit diplomatique, Vol. II, p. 457.
2Cour de Droit Diplomatique, Vol. II, p. 457.
3Journal du Palais, year i839, Vol. II, p. 2 et seq.








in France and subject to its authority, the courts are competent to decide
whether this giving up, after (agreeably to) the treaty, should operate to the
benefit of a single alien heir who is mentioned in it, or of all the heirs, in
the proportion of their hereditary rights and interests; that in the interpre-
tation of diplomatic treaties the judges should prefer an interpretation which
agrees with the common law and the public law of France to that interpre-
tation which conflicts with these principles; that, in particular, the Treaty of
3oth of May, 1814, which, in one of its additional articles, decides first, that
the withdrawal of the sequestration or embargo levied by the decree of Ber-
lin of the 21st of November, i8o6, upon the d'Aubigny tract of land belong-
ing to the Third Duke of Richmond; second, that the restitution to the
nephew of the latter should not be considered as a grant of said land in favor
of this one alone conformably to the law of primogeniture recognized in Eng-
land, and to the exclusion of all others having equal right, title, or interest,
but this grant must be executed with reference to the succession of the Third
Duke of Richmond, so that this tract of land should be divided among all
those entitled in succession in accordance with the rule established by the
Civil Code under the title Successions."
It is to be observed in the first place of this decision, that the subject
matter was real (immovable) property within the territory and jurisdiction
of France, and the court rendering the decision was a court of France. The
rule is familiar, that the law which governs as to real (immovable) property
is lex rei sitac;,. 1 and under application of this rule the French court, in a
controversy between conflicting individual interests, used the language which
occurs in this decision, and which has been copied by the Civil Court of Port-
au-Prince as applicable to the question in controversy in Van Bokkelen's case.
As the Civil Court of Port-au-Prince, and the Court of Cassation of Hayti,
in stating the rule which must govern in the interpretation of treaty language,
have quoted and relied upon isolated expressions of the Court of Cassation
of France in pronouncing judgment in Napier vs. Duke of Richmond, it will
be necessary to consider the latter case with some particularity.
The subject matter in Napier vs. Richmond was a tract of land described
as the d'Aubigny tract, situated in the jurisdiction of France. Like many
other estates belonging to the Crown of France it had been granted to a for-
eign family. This grant reached back to the year 1422, having been made
by Charles VII in favor of one of the Stuarts of Scotland, who had rendered
signal service to France in her wars with England. In the year 1673 this
grant was renewed by Louis XIV in favor of the Duchess of Portsmouth, a
French lady, in the language of the grant, to be enjoyed by said duchess,
and after her decease, by such one of the natural sons of the king of Great
Britain whom he might designate, and the male descendants in direct line of
this natural son. This grant, which evidently, says the Court of Cassation
of France, had for its object to win over Charles II to the interests of Louis
XIV, does not, however, present in appearance any political character.
Story: Conflict of Laws, 0 364-367, 424, 428, 463.








Charles II designated as the successor of the Duchess of Portsmouth a nat-
ural son whom he had by her, named Charles Lennox, who took the title of
First Duke of Richmond.
He enjoyed until his death possession of the d'Aubigny tract, and trans-
mitted it successively to his eldest son and to the eldest of his grandsons,
Second and Third Dukes of Richmond. This property underwent all of the
vicissitudes of the. French wars and revolutions. Confiscated during one of
the said wars of succession, it was restored by the Treaty of Utrecht ; con-
fiscated again in 1792, during the wars of the revolutions, it was restored at
the Peace of Amiens. Finally, having been confiscated for the third time.
in i806, it was again restored by the Treaties of 1814 and 1815. When, by
the Decree of Berlin of 21st of November, 8o06, the French Government,
availing itself of reprisals against England, declared as good prize all the
properties belonging to Englishmen in France, the d'Aubigny tract was oc-
cupied by Charles Lennox, Third Duke of Richmond, who had taken posses-
sion in 1750. This duke died on the i9th of December, i8o6, without issue,
leaving four sisters and the children of a full brother, who died before him,
one of whom took the title of the Fourth Duke of Richmond, who was the
father of the defendant in this case. This condition of things continued
until the Treaty of Peace of the 3oth of May, 1814, the fourth article of
which stipulated in general terms for the withdrawal of confiscations of the
war. However, a secret clause of this treaty added: The confiscation of
the Duchy of d'Aubigny and the property which belongs to it will be raised,
and the Duke of Richmond placed in possession of the property such as it
is now."
A royal ordinance of the 8th of July, 1814, the terms of which repro-
duced textually those of the secret clause, and an order of the Prefect of
Cher, of the 3d of August following, were forwarded to the Fourth Duke of
Richmond, who was then in France at the head of a division of the English
army, putting him in possession of the d'Aubigny tract. His possession was
confirmed by a proces-verbal of the 3oth of November, 1814. The natural
heirs of the Third Duke of Richmond, who did not live in France, being ad-
vised later of their rights, addressed themselves, in 1830, to the French courts
to demand from the Fifth Duke of Richmond, who had succeeded his father
in 1819, a division of the d'Aubigny tract, as belonging to the succession of
the third duke. To this demand was opposed notably the provision of the
secret clause of the Treaty of 1814, insisting that it contained a special de-
rogation from article 4 of this treaty, which prescribed in a general way the
raising of the confiscations of the war. The heirs replied that this article 4
and the secret clause should be interpreted one by the other; that it was proper
to reconcile their provisions; that the second was only a confirmation of the
first, and that it was not reasonable to regard this secret clause as a private
and exclusive grant for the benefit of the feudal heir of the third duke. In
this condition of the respective claims of the several parties, the Tribunal of
Sancerre, having had the controversy submitted to it, rendered judgment on
the 9th of July, 1834, which decreed the partition of the d'Aubigny tract.








Among other reasons assigned for this judgment were the following:
"As to the second question raised in the argument, that by the literal text
the previously dated treaty raised the confiscation affixed to the d'Aubigny
tract, and stipulated for the restoration of the property to the Duke of Rich-
mond; that although by this denominative expression could not be understood
the third duke, against whom the confiscation had been affixed, since the
plenipotentiaries must have known that this duke, their colleague in the cab-
inet and in the House of Lords of England had been dead nearly eight years,
it must be understood that the grant was in fact to his heirs, according to
this maxim, Hreres substinet personal defunct; that, moreover, if the treaty
did not say that in default of the third duke, his representatives should be
called to receive the benefit, it was because in a previous article it was stated
in a general and absolute manner that the principle of the restoration was in
favor of the former proprietors or their heirs, and that this general provision
applied to the Duchy of d'Aubigny neither more nor less than to the other
cases of restoration ; that the confiscation of the d'Aubigny tract, by virtue
of the Decree of Berlin of 21st of November, i8o6, must be considered as
a spoliation, and that the Treaty of Paris of 1814 stipulated for the restora-
tion of this tract to the proprietor or to those having a right, but that it was
not possible to regard the terms of this treaty, as expressed, as a personal
statute and as a reward to the Fourth Duke of Richmond ; that the restora-
tion of the property would not have been complete if it did not result to
the benefit of those having a right or claim to it; that the Treaty of 1814,
understood in such a restricted sense, would not have been a restoration-a
reparation-but the maintenance and continuation of an unjust spoliation,
which, however, the high contracting parties declared that they wished to
put an end to after the military events which had provoked them; that
whereas the succession of the Third Duke of Richmond was opened i9th of
December, 18o6, but at that time the law of the 25th of October, 1792, had
abolished all kinds of substitution, and that this succession, so far as prop-
erty situated in France was concerned, was governed by French laws, agree-
ably to article 3 of the Civil Code; and that it devolved or descended in
five parts to the brothers and sisters of the deceased or to their representa-
tives, in accordance with the terms of article 750, Civil Code; that in the
Treaty of the 3oth of May, I814, there is no expression that leads to the
belief that there was any abrogation of a legislation which had become fixed
in our customs or any failure or omission of national dignity which would
have resulted in subjecting property situated on the soil of France to the
rules of English legislation."
The above decree or judgment of the Tribunal of Sancerre was brought
by the Duke of Richmond on appeal to the Royal Court of Bourges, which
rendered its decision on the i th of March, 1835, reversing the judgment
of the Tribunal of Sancerre. From this decision an appeal was taken by the
heirs of the Fourth Duke of Richmond to the Court of Cassation of France.
When the case came before the Court of Cassation, the eminent lawyer, M.








Dupin, then attorney-general for the Government, made an elaborate argu-
ment in support of the position of the heirs of the Fourth Duke of Rich-
mond and in defense of the decree of the Tribunal of Sancerre.
The Court of Cassation of France reversed the decision of the court of
Bourges, sustaining in substance the decree of the Tribunal of Sancerre, as
well as the main argument of the attorney-general. In announcing its judg-
ment the Court of Cassation, among other propositions, held:
"On the first branch of the argument: Whereas the defendant, having
been summoned to make partition of the d'Aubigny tract and to restore the
fruits and allowances received by him, as well as by the Fourth Duke of Rich-
mond, has opposed, as the principal exception or objection, a secret clause
in the Treaty of the 3oth of May, 1814, to, this .effect: 'The confiscation
affixed to the Duchy of d'Aubigny and on the property which belongs to it
shall be raised, and the Duke of Richmond shall be placed in possession of
the property such as it is presently'; that the defendant has drawn from this
clause the consequence that he had been invested with the exclusive property
of this immovable by the Diplomatic Convention of 1814, and the com-
plainants having disputed this interpretation, the first question to decide in
the case is that relative to the true sense and effect of the stipulation above
cited; whereas the tribunals having jurisdiction of the action were necessa-
rily competent judges of the exception or objection, since they were not pro-
hibited by any provision of law; that the defendant without avail invokes
the principle which forbids the judicial authority to interpret administrative
acts; that the treaties between nations are not simple administrative and
executive acts; that they possess the character of law and can not be applied
and interpreted but in the forms and by the authorities intrusted with apply-
ing all the laws within their jurisdiction whenever disputes which give rise to
this interpretation have private interests for their object; that the action of
complainants, founded upon their character as heirs, raised the questions ot
private succession and of property, which is allotted by the law to the judi-
cial power; whereas the decrees attacked instead of pronouncing judgment
on the questions determining the true sense of this clause, which was never
published nor inserted in the Bulletin des Lois, declared that the Royal Court
had not the right to seek out the sense of the treaty, and that the complain-
ants should go before the competent authority who executed this act before
availing themselves of their character, pretended or real, as heirs in equal
proportions of the Third Duke of Richmond; that it resulted from these
reasons that the Royal Court refused to pronounce judgment as well on the
principal action and as to the title of the heirs, which was the main ques-
tion, as also on the exception and the meaning of the clause ; that it referred
all the points of which it was regularly seized to another authority, which it
did not indicate; that the complainants would be deprived by this dismissal
of all means of obtaining a legal decision upon their demand; whereas the
royal ordinance of the 8th of July, 1814, and the prefect's decree of the
3d of August following are only acts in execution of the treaty and of the








obligations which article 4 of the additional clauses imposed upon each of
the contracting powers to raise several confiscations which had been affixed;
that moreover these acts, which did not add anything to the treaty, and with
which they are identified, can not be considered as acts belonging to the
exercise of the administrative power, cognizance of which was forbidden to
the tribunals.
"As to the second branch of the argument: Whereas the decrees de-
nounced, after having in their reasons declared the incompetency of the
tribunals, and referred to another authority, had meanwhile decided that the
complainants could not sustain their action, for the reason that the treaty
invested the defendant with the property of the immovable claimed by them;
that the reasons for these decrees and their provisions imply a contradic-
tion; that they have, in addition, ignored : First, the text of the laws which
govern immovables situated in France, and their transmission to the heirs;
second, the true meaning of the treaty and of the secret clause; third, the
rules established by the Civil Code for' the interpretation of conventions;
finally, the d'Aubigny tract, being situated in France, was governed, as to
the succession of the Third Duke of Richmond, by the law of France; that
substitutions were abolished, and the privilege of the oldest male was sup-
pressed, and that the heirs of this duke were entitled to receive this property
in equal portions, and that they were invested with it by the mere operation
of law; that the defendant can not invoke the law of nations to claim the
grant of an exclusive right; that the transmission of property by way of suc-
cession is governed by the civil law of each State; whereas, if the text of
this stipulation left any doubt of its true meaning, it would be disposed of by
the rules of law in reference to the interpretation of conventions; that the
first is to seek out the common or ordinary intention of the contracting par-
ties rather than to stop at the literal meaning of the terms; that it is impossi-
ble to suppose that the intention of the plenipotentiaries was to regulate the
law of succession between co-heirs; to grant to one the whole property in
the estate or land to the exclusion of the others, without any indemnity
whatever to these latter; that this grant to the Fourth Duke of Richmond
alone would have been in derogation of French legislation, and would have
created in France a property or estate governed by privileged and exceptional
law; that such an intention, which would be in opposition to all the pro-
visions of the treaty, can not be admitted without unexceptionable proofs; .
that it would have been expressed in positive terms if it had existed; that
all the clauses should be interpreted one by the other so as to give to each
the meaning which results from the whole text, and the secret clause should
be understood in the sense of a restoration to the one who was entitled, or
to his heirs, in accordance with the spirit of the treaty; that diplomatic
treaties should be understood in the sense which places them in accord with
the civil and public law recognized by the contracting parties; that the in-
terpretation given to the clause by the decrees which are attacked put them
in opposition to all the laws, the civil as well as the public law of France.








That in not designating by name which Duke of Richmond should be placed
in possession, the clause could only have had in view the one who was dis-
possessed, or his representatives; that in admitting the fourth duke to
restoration it was for the benefit of his co-heirs as well as for himself. It
results from the considerations which precede, that the decrees which are
attacked for refusing to take into consideration the rights of the parties in
accordance with the interpretation of diplomatic conventions, and in decid-
ing that the apparent text of these conventions had dispossessed the heirs of
the Third Duke of Richmond of their rights to the d'Aubigny tract, have
violated and misapplied the laws above cited."
It seems to the Referee that the above exposition of facts and of law which
were involved in the case of Napier vs. the Duke of Richmond, and the de-
cision of the Court of Cassation of France thereon, make it clear that that
case does not justify the use or application which the Haytian courts have
attempted to make of it by incorporating in their judgments isolated expres-
sions which are withdrawn from the context in the decision of the former
case. The Court of Cassation of France simply decided that they would
not put such a construction upon treaty language as would result in the abro-
gation of the law of descent of France in respect to real (immovable) prop-
erty; that as to such property the lex rei sitae governed; and that it was
impossible to suppose that the intention of the plenipotentiaries was to abro-
gate the laws of descent of France in this respect, and that such an intention
would be in conflict with all the provisions of the treaty.
In the view taken of that case there does not seem to be room for com-
plaint or criticism. And there is no evidence that the action of the Govern-
ment of France, as expressed in the decree of its supreme court, has been
ever. excepted or objected to by Great Britain. If, however, Great Britain
had considered that as a consequence of this decree, injustice had been done
to one of her citizens, or a treaty stipulation had been violated by France,
she would, no doubt, have made it the subject of international settlement.
The second case cited by counsel for defendant Government in this con-
nection is Challier vs. Ovel, which was decided by the Court of Cassation
of France on the i7th of March, 1830. 1 The extent to which the court
went was to hold that, although article 22 of the Treaty of the 24th of March,
1760, between France and Sardinia2 had abrogated a principle sanctioned by
article 121, ordinance 1629, as also by articles 21-23 and 21-28 Civil Code,
and 646 Code of Procedure, it did not follow that the execution of these
judgments rendered by the Sardinian tribunals should be decreed in France
when they were contrary to the maxims of the public law of France or to the
public order ofjurisdiction; and that in refusing to decree in France the exe-
cution of the judgment and decrees rendered in the cause by the Piedmontese
tribunal, the decree attacked only conformed to the principles of the public
law, and did not violate either the Treaty of 176o, or any law.


1 Journal du Palais, year 1830, page 272.
2 Wencke, Codex Juris Gentium, Vol. Ill, p. 226.








Challier vs. Ovel was a case where a citizen of France, having been ar-
raigned before one of the courts of Sardinia, demurred to the jurisdiction of
that court, and claimed exemption from suit in the foreign jurisdiction, in-
sisting that he could only be sued in the jurisdiction of his domicile, which
was France. The Sardinian court, notwithstanding his plea, proceeded with
the cause and rendered judgment against him. It was such a judgment
against a citizen of France, so obtained, that the Court of Cassation of France
declined to put into execution. This case has nothing in common with Van
Bokkelen vs. Hayti.
The third case cited by counsel for defendant Government in this con-
nection is Alberto Balestrini vs. Aubert and others. 1 The conclusion reached
was, that international treaties are not simple administrative acts; that they
may be applied and even interpreted by judicial authority, when it is a ques-
tion of convention having for their object individual interests.
The case of Balestrini vs. Aubert presented a controversy between con-
testing associates, one of whom had a concession under the provisions of a
treaty which gave him a right to establish and operate a telegraph line under
a new system of electric cable between France and the United States. The
contest was as to the respective interests of these several associates, and the
provisions of the grant or concession in the treaty came thus for considera-
tion incidentally before the court. It was in such a case that the Court of
Cassation of France held that the stipulations of a treaty could be applied
and interpreted by judicial authority, whenever it was a question of agree-
ments or conventions having private or individual interests for their object.
It must be perceived that there is no similarity between that case and the one
under consideration.
The ratio decidendi in all these cases is very plain. It is this, that the
judicial tribunals of a country, when called upon to decide controversies be-
tween individuals which grow out of or are dependent upon treaty stipula-
tions, will not hesitate to construe the language of those treaties according to
the rules of law which apply to all instruments. They will construe the pro-
visions so as to give effect to rather than to defeat the intention of the con-
tracting parties; and they will reconcile apparent conflicts of particular parts
by reference to the context in which they occur and to the whole instrument.
They will not impute to the plenipotentiaries in the negotiation of a treaty
an intention which is in conflict with the fundamental law of the State. They
will not lend their sanction to execute a treaty stipulation when it is in vio-
lation of the fundamental law of the jurisdiction ; and they do this upon the
ground that it is beyond the competency of the treaty-making power to enter
into stipulations which are in conflict with the public law or the public policy
of the jurisdiction.
The treaty-making power is necessarily and obviously subordinate to the fundamental laws
and constitution of the State, and it can not change the form of the government or annihilate
its constitutional powers. 2
Journal du Palais,year 1873, pp. 37 and 33.
2 Story: Commentaries on the Constitution of the United States, Vol. III, section 50o8 ; Kent's Commen-
taries, Vol. I, pp. 167 and 287, notes.








This language has been used by distinguished American jurists in reference
to the Government of the United States. It applies equally to the public
policy and limitations of all constitutional states.

In every civilized state two principal divisions of law are recognized:
First, the law which regulates the public order and right of nations, which
is called jus publicum; second, the law which determines the private rights
of men, which is called jus cizile. The law of procedure (the adjective
law) is distinguished from the fundamental law of a state, and includes
remedial law, which is a law whereby a method is pointed out to recover a
man's private rights or redress his private wrongs. 2 And the instrument by
which the individual vindicates his rights and remedies his wrongs is an
action or suit at law. In this sense an action is not a right; but it is the
means which the law affords for pursuing the right. "Actio non est jus, sed
medium jus persequendi.'"
"I consider,"'' says Lord Bacon, "that it is a true and received division of
law into jus publicum and jusprivatum, the one being the sinews of property,
and the other of government."4 Law defines the rights which it will aid,
and specifies the way in which it will aid them. So far as it defines, thereby
creating, it is "substantive law." So far as it provides a method of aiding
and protecting, it is "adjective law" or procedure. 5
It would seem to be clear from the cases decided by the Court of Cassa-
tion of France, heretofore cited, that the decisions do not sustain the posi-
tion taken by the Haytian courts and by the counsel for defendant Govern-
ment. In the case under consideration Van Bokkelen petitioned the court
for the purpose of availing himself of the law of procedure guarantied to
him by the treaty. The pretension that articles 6 and 9 of the Treaty of
November 3, 1864, contained any stipulation that was violative of the funda-
mental law of Hayti is without any foundation.
The article (1054, Civil Code of Hayti) which Van Bokkelen invoked
for his protection belongs to the law of procedure or the adjective law of
Hayti. And the article 794 (Haytian Code of Civil Procedure) and article
569 (Haytian Code of Commerce), which the Haytian authorities opposed in
denying Van Bokkelen's petition, are also a part of the law of procedure or
adjective law of Hayti. They do not form a part of the constitutional,
fundamental, or national law of Hayti. And the attempt by the judicial
and executive authorities of Hayti to characterize a simple judicial assign-
ment as an institution of civil law, or an institution of civil right, in the
sense intended, is a misuse of language and a misapplication of terms.

1 Tomlin's Law Dictionary, word "Law."
'Blackstone's Commentaries, Vol. 1, p. 53.
a Austin, Jurisprudence, Vol. II, Sec. 1034, p. 183, citing Heineccius.
4 Preparation towards the Union of Laws, Works, VII, p. 731.
5 Holland, Jurisprudence, 73.









The counsel for defendant Government invite attention to "the leading
English case on this subject," upon which they place some reliance. This
was an action between private litigants upon several policies of insurance on
a certain ship and cargo, upon which the defendant in error had effected
insurance. While on a trading voyage ship and cargo were captured by
a British squadron, and thus became a total loss to the owners and insurers.
Demand was then made by the insured upon the insurer to make good his
proportion of the loss so incurred. He refused to do so, and when sued, set
up the defense that the voyage on which ship and cargo were lost was illegal.
On the trial before King's Bench and Exchequer Chamber it was admitted
that the voyage was illegal unless it was within the protection of certain
articles of the treaty between Great Britain and the United States, concluded
the 19th of November, 1794. Defendant insisted that the voyage was not
within the letter of the treaty, and therefore it was illegal. But the Ex-
chequer Chamber held that the voyage was within the spirit, though not the
letter of the treaty; and, in deciding the case, used the language quoted in
the argument for defendant Government.2
Chief Justice Eyre, in deciding the case, said:
There may be reason to apprehend that this treaty will open a door to many o01 our own
people whom the policy of our laws has shut out from a direct trade to the East Indies. In
truth, it can hardly be expected that the spirit of commerce too often found eluding laws
made to keep it within bounds, that the lucri bonus odor should not embark British capital in
this trade. This ought to have been foreseen, and therefore I conclude it was foreseen, and
that it was found that the balance of advantage and disadvantage preponderated in favor of
the treaty. If not, those who advised it will have to answer for it; responsibility is not with
us. We are not even expounders of treaties. This treaty is brought under our consideration
incidentally as an ingredient in a cause in judgment before us; we only say how it is to be
understood between the parties to this record.
This we are bound to do; we have but one rule by which we are to govern ourselves.
We are to construe this treaty as we would construe any other instrument, public or private.
We are to collect from the nature of the subject, from the words and from the context, the
true intent and meaning of the contracting parties, whether they are A and B, or happen to
be two independent states. The judges who administer the municipal laws of one of those
states would commit themselves upon very disadvantageous ground-ground which they could
have no opportunity of examining-if they were to suffer collateral considerations to mix in
their judgment on a case circumstanced as the present case is. Whether
the trade should have been conceded under any qualifications or restrictions is one thing ; it
having been conceded, now to attempt to cramp it by narrow, rigorous, forced construction
of the words of the treaty is another and a very different consideration. We can not sup-
pose that an indirect advantage was intended to be reserved to the East India Company by so
framing the treaty that the American trade might by construction be put under disadvantage,
because this would be chicanery unworthy of the British Government, and contrary to the
character of its negotiations, which have been at all times distinguished by their good faith to
. a degree of candor which has been supposed sometimes to have exposed it to the hazard of
being made the dupe of more refined politicians. The nature of the trade granted, in my
opinion, fixes the construction of the grant. If it were necessary to go further, strong argu-

ItIarryat vs. Wilson, i Bosan. and Puller, p. 430 et seq.
2 First brief of counsel for defendant Government, p. 37.








ments may be drawn from the context of this article and the contrast, which the comparing
it with the preceding article will produce.1
Far from advancing the argument of counsel for defendant Government,
the conclusions and the reasoning of the Chief Justice in Marryat vs. Wilson
are strongly opposed to the contention of the defendant Government, and
sustain the position of the complainant Government in this case. Marryat
vs. Wilson is strong authority for the proposition that the municipal tribunals
of a country may not nullify the purpose and effect of treaty language by
imposing upon it a cramped, narrow, and forced construction. And it is to
be observed that in the case before the Exchequer Chamber, the judgment .of
the court sustaining interpretation of treaty stipulations which would give
effect to the spirit, if not to the letter of the treaty, was rendered in a case
where the beneficiaries were aliens, that is, citizens of the United States; and
in denial of defenses set up by British subjects before one of the superior
courts of Great Britain.
It is to be noted that these several decisions of the highest courts of
France and Great Britain, which are cited and relied upon by the defendant
Government on this branch of the argument, are cases in which the conclu-
sions of the courts were in support of the protective and private property
rights of individuals. The result of all these decisions was to work out sub-
stantial justice between the parties. In the case under consideration, the
result of the judgments of the Haytian courts and the action of the Execu-
tive of Hayti was to defeat the efforts of Van Bokkelen to protect himself
from wrong and injustice, and to secure to himself rights plainly guarantied
to him, in common with all other citizens of the United States, by the
treaty.
Counsel for defendant Government cites a decision of the Supreme Court
of the United States,2 referred to as the Head Money Cases, to the effect
that so far as a treaty made by the United States with any foreign nation
can become the subject of judicial cognizance in the United States, it is
subject to such acts as Congress may pass for its enforcement, modification,
or repeal.
On this point there is not room for much controversy. But an act of the
Congress of the United States in derogation of treaty rights has always been
held to be a ground for diplomatic intervention. In the case under consid-
eration, the converse of the proposition announced by the Supreme Court in
the Head Money Cases is presented. Here the collision or conflict is be-
tween provisions contained in prior municipal statutes of Hayti, and stipu-
lations of a treaty between the United States and Hayti of a subsequent
date. The rule is universal that a prior statute is repealed by a subsequent
statute which is absolutely repugnant; leges posteriores priores contrarias
abrogant. The same principle applies when a municipal statute and a treaty
stipulation is in competition. A treaty stipulation of a later date repeals a

x Marryat vs. Wilson, I Bosan. & Puller. 435 and 436.
Edye vs. Robertson, 112 U. S., p. 580.









prior statute with whose provisions it is repugnant. And the reverse of the
proposition is maintained by the Supreme Court of the United States.1
In the Head Money Cases the Supreme Court of the United States laid
down the following propositions:
A treaty is primarily a compact between independent nations. It depends for the enforce-
ment of its provisions on the interest and the honor of the governments which are parties to it.
If these fail, its infraction becomes the subject of international negotiations and reclama-
tions, so far as the injured party chooses to seek redress, which may in the end be enforced by
actual war. It is obvious that with all this the judicial courts have nothing to do and can give
no redress. But a treaty may also contain provisions which confer certain rights upon the
citizens or subjects of one of the nations residing in the territorial limits of the other, which
partake of the nature of municipal law, and which are capable of enforcement as between
private parties in the courts of the country. An illustration of this character is found in trea-
ties which regulate the mutual rights of citizens and subjects of the contracting nations in re-
gard to rights of property by descent or inheritance, when the individuals concerned are aliens.
The Constitution of the United States places such provisions as these in the same category as
other laws of Congress by its declaration that This Constitution and the laws made in pur-
suance thereof, and all treaties made or which shall be made under authority of the United
States, shall be the supreme law of the land." A treaty, then, is a law of the land as an act
of Congress is, whenever its provisions prescribe a rule by which the rights of the private citi-
zen or subject may be determined. And when such rights are of a nature to be enforced in
a court of justice, that court resorts to the treaty for a rule of decision for the case before it,
as it would to a statute. 2

It will be seen from the above review of the several arguments on behalf
of defendant Government, that many of the propositions which are still stren-
uously urged in defense, are addressed to the consideration and support of
subsidiary and collateral issues which are, by the terms of the Protocol, ex-
cluded from the consideration of the referee.

THE TREATY OF NOVEMBER 3, 1864.

It becomes, therefore, necessary to examine the provisions of the treaty
upon which complainant Government relies in its intervention on behalf of
Van Bokkelen, and to the application of which defendant Government ob-
jects.
Section 2, article 6, stipulates:
The citizens of the contracting parties shall Les citoyens des parties contractantes au-
have free access to the tribunals of justice, in rent libre aces prls les tribunaux de justice
all cases to which they may be a party, on the dans toutes les causes oft ils seront interess6s,
same terms which are granted by the laws and aux mImes conditions que les lois et les usages
usage of the country to native citizens, etc. du pays font aux nationaux, etc.

In view of the explicit language in both texts, it would seem clear that the
guaranty to the citizens of contracting States of free access to the tribu-
nals 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,"

1 Foster vs. Neilson, 2 Peters, U. S., p. 314. Taylor vs. Morton, 2 Curt., U. S., p. 454. Hauenstein
vs. Lynham, too U. S., p. 483.
2 Edye vs. Robertson, 112 U. S., page 433.









means that they shall be entitled to the exercise of all the processes of the
courts of the respective countries, whether they concern rights or remedies.
And the extent to which these processes of the courts may be invoked is ex-
pressed in language equally free from doubt : On the same terms which are
granted by the laws and usage of the country to native citizens." It is not
denied that a citizen of Hayti in the situation which Van Bokkelen was, would
have been entitled to release from imprisonment upon making a judicial as-
signment. Indeed the language and reasoning of the Haytian courts and of
the Executive of Hayti admit as much.
Article 9 stipulates:


The citizens of each of the high contract-
ing 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, be-
ing citizens of the other contracting party,
shall succeed to their personal property,
whether by testament or ab intestate. They
may take possession thereof, either by them-
selves or by others acting for them, at their
pleasure, and dispose of the same, paying
such duty only as the citizens of the country
wherein the said personal property is situated
shall be subject to pay in like cases, etc.


Les citoyens de chacune des hautes parties
contractantes auront, dans la jurisdiction de
Pautre, la faculty de disposer de leurs biens
mobiliers par vente, donation, testament, ou
autrement; et leurs successeurs, citoyens de
Pautre parties contractante, pourront heriter de
leurs biens mobiliers soit par testament, soit
ab-inleslta. Ils pourront en prendre posses-
sion soit par euxm/mes, soit par des tiers
agissant pour eux, comme ils le voudront, et
en disposer sans payer d'auntres droits que
ceux auxquels sont assujettis,dans les mimes
circonstances, les citoyens du pays, out sont
situds les dits biens mobiliers, etc.


There would seem to be no ambiguity in the language of these articles;
and the best way to construe them is to follow the words thereof.
But the Civil Court of Port-au-Prince, and the Court of Cassation affirming
the decision of the Civil Court, denying Van Bokkelen's petition to execute
a judicial assignment, decide that there is nothing in articles 6 or 9 of the
Treaty of November 3, 1864, which guaranties to Van Bokkelen, or any
citizen of the United States, the right to release from imprisonment upon
the execution of a judicial assignment conformably to the terms of the civil
procedure of Hayti. The Civil Court decided, among other things, 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; and it is impossible to suppose that it was
tne intention of the contracting plenipotentiaries 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 Com-
merce, which exclude a foreigner from the benefit of making an assign-
ment;" and further, that "whereas, although the text of this stipulation
(article 9), 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 usage 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 con-









cerning the interpretation of conventions which are applicable to treaties;"
and this court then proceeds as follows:
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.1l-Translation.
From this decision of the Civil Court of Port-au-Prince, rendered May
27, 1884, Van Bokkelen appealed to the Court of Cassation, which rendered
its decision, affirming the decision of the Civil Court, on February 26, 1885,
almost a year from the time Van Bokkelen was first imprisoned.
The Court of Cassation, affirming the judgment of the Civil Court, held:
Whereas the judicial assignment of property is an institution of civil riht, 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 Hayti all rights,
,they can only enjoy privileges derived from natural rights or of mankind, and not those which
are derived from purely civil law.2-Translation.
If, as I shall hereafter endeavor to show, the judicial assignment cessionn
de biens) is simply a step in the procedure of the courts in bankruptcy pro-
ceedings, it is not perceived how the description of it "as an institution of
the civil law" can have the effect of withdrawing it from the guaranty ex-
pressed in the treaty grant of "free access to the tribunals of justice," unless
it was excepted in terms from the treaty stipulations.
Of the decree of the Court of Cassation, affirming the decision of the
Civil Court of Port-au-Prince, it is to be observed that the latter court fol-
lows substantially, though not literally, the reasoning of the former.3
A careful reading of the decree of the Court of Cassation indicates that
the Court has, in its attempt to justify the authorities of Hayti, indulged in
the same peculiar reasoning as the Civil Court of Port-au-Prince; and it is
consequently open to the same criticism.

1Exhibit No. 4, pp. 32 and 33.
Whereas nowhere in the treaty of friendship, of commerce, of navigation, and of the extradition or
fugitive criminals, concluded November 3, 1864, between the United States of America and the Republic of
IHayti 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 be 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 Haytian, or in
Hayti by an American. In consequence thereof, Americans can not enjoy in Ilayti such civil right, the en-
joyment of which is attached exclusively to the quality of a Haytian. 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.-Translation.
a The Court of Cassation holds, that-
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 Hayti 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 extradition or
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 be 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 Haytian, or in
Hayti by an American. In consequence thereof, Americans can not enjoy in Hayti such civil rights, the en-
joyment of which is attached exclusively to the quality of a IHaytian. 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








The extreme to which the court has gone in search of reasons to justify
its judgment indicates the absence of that good faith which should charac-
terize the interpretation of treaty stipulations. And in view of the language
of articles 6 and 9 of the Treaty of November 3, 1864, it is difficult to under-
stand by what process of reasoning the court reached the conclusion that a
citizen of the United States, within the jurisdiction of Hayti, Can only
enjoy privileges derived from natural rights or of mankind, and not those that
are derived from purely civil law."
Equally illogical and untenable is the reasoning of the Court of Cassa-
tion in holding that nowhere in the Treaty of November 3, 1864, is there to
be found a provision which may be held to confer upon the citizens of the
contracting States other and additional rights, i. e., full right to exercise the
"judicial assignment" of property. Under the public law or law of nations
aliens enjoy purely natural rights in whatever state they may be. And in
the absence of any treaty, a citizen of the United States would have enjoyed
natural rights in Hayti ; but the terms of the Treaty of November 3, 1864,
stipulate, in effect, that such citizen shall further enjoy civil rights.
The Court of Cassation, although admitting that the treaty stipulates
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 law and usages of the country give to their citizens,
furnishing security required in the case," maintains "that this provision of
article 6 is not intended to grant to the citizens of these two nations the en-
joyment of civil rights."
The Court of Cassation is in error in assuming that the privilege of
release of an imprisoned debtor would be denied to the Haytian citizen by
the United States courts, circumstanced as Van Bokkelen was when he in-
voked the protection of the treaty. In such a case, assuming that other and
ordinary applications for release had failed, the writ of habeas corpus would
lie to the courts of the United States, and would avail to secure his release
from imprisonment.
In view of the treaty language and terms of the Protocol, it is impossible
for the Referee to sustain the reasoning or the conclusions reached by the
Civil Court of Port-au-Prince or by the Court of Cassation. It is not per-
ceived how the nature or character of the remedy or right expressly guaran-
tied to citizens of the United States within the jurisdiction of Hayti can be
withheld from them by describing it, as the judgment of the Civil Court of

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 ,uch 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 iBokkelen against the
judgment rendered May 27, 1884, by the Civil Court of Port-au-Prince, orders, in consequence, the confisca-
tion 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." -Translation.








Port-au-Prince does, "as an institution of civil law," or as the decree of
the Court of Cassation does, an institution of civil right." The "judi-
cial assignment cessionn de bieus), as I have elsewhere pointed out, is simply
an incident or step in the judicial procedure in the courts of Hayti in bank-
ruptcy proceedings. And if it be not included within the guaranty of "free
access to the tribunals of justice," the language is without meaning and
inoperative. "Free access to the tribunals of justice that was limited to
admission to the courts, without the privilege to plaintiff or defendant of
employing the usual, ordinary processes of the court, would be a delusion and
a snare. Such an intention or purpose may not, in the absence of plain lan-
guage, be imputed to the high contracting parties.
The attempt of the courts of Hayti and of the Executive to exclude a
citizen of the United States from the benefit of a judicial assignment, on the
ground that the Treaty of November 3, 1864, makes no mention of it in ex-
press terms, does not seem to' call for serious consideration. Such a strained
objection would only be satisfied by incorporating the body of the Haytian
codes in the treaty articles. With equal force and soundness the courts of
Hayti and the Executive power might have denied this right, remedy, or
privilege to Van lBokkelen on the ground that he was not mentioned or
particularly named in the .treaty. When the treaty said "free access to the
tribunals of justice on the same terms which are granted by the
laws and usages of the country to native citizens," it included the whole
class of citizens, and fixed the terms upon which the laws and usage of the
country was to be applied to them.
Among the international rules proposed by the Institute of International
Law of Geneva, 1877, with the view to negotiation of international treaties,
the following rules, among others, were adopted:
I. I ctranLcr- se'ra admis a ester en justice aux igenies conditions qul /'e rcicol'.
2. I.es forces ordinatoires de instruction et de la procedure seront regies par la loi du
lieu of0 le process est instruit. Seront considers cominme tells, les prescriptions relatives aux
former de l'assignation (sauf ce qui est propose ci-dessous, 21'' al.), aux dilais de comparution,
a la nature et a la forme de la procuration ad litem, au mode de recueiller les preuves, at la
redaction et a prononc& du jugement, a la passation en force de chose jugee, aux delays et aux
formalites de 1'appel et autres voices de recourse, a la peremption de l'instance. I
Reference is here made to the language of the above rules to show that
when an alien is admitted to stand in justice on the same terms as a citizen,
he must necessarily be entitled to invoke in his behalf all the customary and
civil processes of the courts which are open to citizens.

JUDICIAL ASSIGNMENT CESSIONN DE 1IENS).
In view of the fact that the Executive and judicial authorities of Hayti
have placed their refusal to admit Van Bokkelen to the benefits of the judicial
assignment, upon the ground that by the letter of the municipal codes of
Hayti, all aliens are excluded from its privileges, and that it is confined to
native citizens, and that it is a civil institution of the State, it becomes neces-


1 Lorimer, Institutes of the Law of Nations, Vol. 2, p. 530.


v n-3









sary to inquire into the real nature and character of the proceeding known
as judicial assignment cessionn de biens). This is of the first importance be-
cause the fallacy in the reasoning of the courts and of the Executive of
Hayti and of counsel for the defendant Government, consists in attributing
exceptional characteristics and functions to the act of judicial assignment.
The provisions of the Haytian code which have been cited are here below
inserted.1
There is nothing exceptional, unusual, or extraordinary in this proceed-
ing. It is not, as the language of the courts, of the Executive of Hayti, and
the argument of counsel for defendant Government implies, a law unto- it-
self of such supreme authority as to negative the purpose and effect of a treaty
stipulation.
The judicial assignment cessionn dc biens) of the Haytian codes is de-
scribed under title 5 of the Civil Code of Hayti, and of 12 of the Code of
Civil Procedure, and title 2 of the Code of Commerce.
There is nothing hidden or mysterious about it; it possesses no cabalistic
power. And the execution of a judicial assignment is simply a step in the
ordinary procedure and practice of the courts of Hayti. It is a familiar and
well-known incident in the jurisprudence of the civil law. The provisions
in the Haytian Code were transferred bodily from the Civil Code of France;
and France incorporated them in her code from the corresponding title (ces-
sio bonorumi) of the Justinian Code, whence they are traced back to the
Lex Julia. 2
"The Lex Julia, probably passed in the reign of Augustus, at length ex-
empted insolvent debtors from the penalty of imprisonment and infamy, and
secured to them the beneficiun comn etentiae or right to maintenance; pro-
vided they made an immediate and complete cessio bonorumn to their cred-
itors. 3 "
The surrender was made by solemn declaration, either judicial or extra-
judicial. The property thus given up was sold, and the price distributed
among the creditors. The debtor was not released from his debts unless the
creditors were fully paid, but he was protected from imprisonment at their
instance. If the debtor subsequently acquired property his creditors were
entitled to attach it, except in so far as it was necessary for his own sub-
sistence. This latter privilege was called exception or beneficiim conipe-
tenliae.' '"

1 Le cession judiciare est un b6nefice que la loi accord an debiteur malheureux et de bonne foi, a quel il
est permis, pour avoir la liberty de sa personnel, de fire en justice l'abandon de tons ses hiens a ses cr6anciers,
nonobstant toute stipulation contraire. (Article 1054, Civii Code of Hayti.)
Ne pourront etre admis an benefice de cession les cralngers, les stellionataires, les banqueroutiers
frauduleux, les personnel condamndes pour cause devol on d'escroquerie, ni les personnel comptables, tuteurs,
administrateurs et depositaires. (Article 794, Haytian Code of Civil Procedure.)
Ne pourront etre admis du benefice de cession : i. Les stellionataires, les banqueroutiers fraiduleux, les
personnel condamnnes pour fait de vol on d'escroquerie, ni les personnel comptables. 2. Les strangers, les
tuteurs, administrateurs au depositaires. (Article 569, Haytian Code of Commerce.)
2 Merlin, Repertoire de Jurisprudence, Vol. iv, pp. 46, ete.
a Mackenzie: Studies in Roman Law, 1880, pp. 376, 380; Mackeldy: Roman Law, section 523; Col-
qiuhouin; Roman Civil Law, Vol. II, p. 351.










The Lex fulia de cessia bonoruin introduced a neo procedure in relation
to a bankrupt's estate (vendiio bonorum), which theretofore was governed by
the micsi/o in bona.' 1
The rule for the interpretation of treaty stipulations suggested in the judg-
ment of the Civil Courts of Port-au-Prince, as has been pointed out, was
taken from its appropriate context in the decision of the Court of Cassation,
in Napier vs. Duke of Richmond, which case has been considered. As it is
sought to be used in relation to the case under consideration, it is without
relevance or authority. The language of all the authorities repudiates such
a strained and singular construction, whether it be in application to private
contracts or to international covenants.
It may be said of the Treaty of November 3, 1864, as was said of
the Constitution of the United States by Mr. Justice Story, with the approval
of Chancellor Kent, that-
The instrument furnishes essentially the means of its own interpretation.2
The first and fundamental rule in the interpretation of all instruments is to construe them
according to the sense of the terms and the intention of the parties. The intention of a law
is to be gathered from the words, the context, the subject matter, the effects and consequence,
or the reason and spirit of the law.3
And the only case in which a literal meaning is not to be adopted is limited to the excep-
tion when such construction would involve a manifest absurdity.4
When the words are plain and clear, and the sense distinct and perfect arising on them,
there is generally no necessity to have recourse to other means of interpretation. In literal
interpretation the rule observed is to follow the sense in respect both of the words and con-
struction of them which is agreeable to common use without attending to etymological fancies
or grammatical refinements.5
All international treaties are covenants bona fide, and are, therefore, to be equitably and
not technically construed.6
The principal rule has already been adverted to, namely, to follow the ordinary and usual
acceptation, the plain and obvious meaning of the language employed. This rule is, in fact,
inculcated as a cardinal maxim of interpretation equally by civilians and by writers on inter-
national law.
Vattel says that it is not allowable to interpret what has no need of interpretation. If the
meaning be evident and the conclusion not absurd, you have no right to look beyond or
beneath it, to alter or to add to it by conjecture. Wolf observes that to do so is to remove all
certainty from human transactions.7
Treaties are to be interpreted according to their plain sense.,
Publicists are generally agreed in laying down certain rules of construction as being ap-
plicable when disagreement takes place between the parties to a treaty as to the meaning or
intention of stipulations. Some of these rules are either unsafe in their application or of

1 Alack-eldy: Roman Law, section 523; White: Recopilacion of the Laws of Spain and the Indies, pp.
170, et seq.
2Kent's Commentaries, Vol. 1, p. 243; note, citing Story, Commentaries on the Constitution of the
United States, Vol. I, pp. 382-442.
a Story on the Constitution of the United States, Vol. I, Sec. 400; Blackstone's Commentaries, Vol. I,
PP. 59 and 60.
4 Story on the Constitution of United States, Vol. I, Sec. 402, citing authorities.
SStory on the Constitulion of United States, Vol. I, Sec. 402.
G Phillimore, International Law, Vol. II, 3 Ed., pp. 94-99, citing authorities.
7 Phillimore International Law, Vol. II, 3 Ed p. 99.
a Hall International .aw, p. 281.








doubtful applicability; and rules tainted by any shade of doubt, from whatever source it may
be derived, are unfit for use in international controversy.
Those against which no objection can be urged, and which are probably sufficient for all
purposes, may be stated as follows :
When the language of a treaty, taken in the ordinary meaning of the words, yields a
plain and reasonable sense, subject to the qualifications, that any words which may have a
customary meaning in treaties differing from their common signification must be understood to
have that meaning, and that a sense can not be adopted which leads to an absurdity or to in-
compatibility of the contract with an accepted fundamental principle of law.1
Treaties of every kind, when made by the competent authority, are as obligatory upon
nations as private contracts are binding upon individuals, and these are to receive a fair and
liberal interpretation, according to the intention of the contracting parties, and to be kept with
the most scrupulous good faith. Their meaning is to be ascertained by the same rules of con-
struction and course of reasoning which we apply to the interpretation of private contracts.2
Applying these rules to the words, the context, and the subject matter
found in articles 6 and 9 of the Treaty of November 3, 1864, there would
seem to be no difficulty in ascertaining their precise intention and meaning.
The infirmity or fallacy disclosed in the reasoning of the decrees of the
Haytian courts and in the message of the Executive of Hayti, referring to
this case and adopting the views of the courts, is, that the judges and Presi-
dent Salomon reason about the competition which exists between the treaty
and the municipal law of Hayti, as if the question of relative authority and
comparative precedence was between a municipal statute of the United States
and a municipal statute of Hayti. In doing this they lose sight of the im-
portant fact that the competition is between provisions contained in muni-
cipal statutes of Hayti and stipulations in a treaty of subsequent date, to
which Hayti is one of the contracting parties. It would seem, from the
character of the arguments submitted on behalf of Hayti, that counsel did
not fail to recognize this infirmity in the reasoning of the judicial and ex-
ecutive authorities. And this seems to have embarrassed counsel for defend-
ant Government and accounts for the shifting positions upon which the
defense in this case has, at different times, rested. It seems to be forgotten
that the operation of treaty stipulations within the jurisdiction of a contract-
ing party is not a foreign interference, nor is it the application of extra-
territorial or foreign law. By the constitution and law of Hayti a treaty is
a law of the State.
The Treaty of November 3, 1864, is within Lorimer's category of the
third class of treaties "as sources of international law;" treaties which,
among other things, recognize the equal rights of foreigners and natives
before the municipal law.3 "The value of treaties, as a source of the posi-
tive law of nations, is supposed to have been greatly enhanced by the annex
to Protocol No. i of the conferences held in London in 1871 respecting

1 Hall, International Law, p. 281.
Kent's Commentaries, tik. i, i3th Ed., p. 175 ; citing Grotius, b. 2, c. 16, Sec. i ; Puff.,b. 5, c. 12, Sec.
i; Rutherforth's Institutes, b. 2, c. 7; Vattel, b. 2, c. 17; Eyre, Ch. J., in i Bos. & Pull., 438 and 439;
opinion of Sir James Marryat, cited in Chitty Comm. Law, 44.
a Lorimer's Institutes of the Law of Nations, Vol. I, pp. 44, 45.
I









the clauses of the Treaty of Paris of 1856, which have reference to the
neutralization of the Black Sea. The protocol is in the following words:"
The plenipotentiaries recognize that it is an essential principle of the law of nations that
no power can liberate itself from the engagements of a treaty, nor modify the stipulations
thereof, unless with the consent of the contracting powers by means of an amicable arrange-
ment.
Some of the inconsistencies in the positions assumed, at different times,
by the defendant Government, have been pointed out in the brief on behalf
of complainant. 1
It was first maintained that the case of Van Bokkelen in the Haytian
courts was decided only on an exception; that is to say, that the Court of
Cassation, affirming the judgment of the court below, held that Van Bok-
kelen, being an alien, the said court had no jurisdiction over the subject
matter.2
At a later date, referring to the decision of the courts, it was argued that
"at the utmost the Haytian judges erred in resting their decision upon
grounds erroneous, or open to discussion; and the only error, if any, which
may possibly be charged to them, was to set forth as a ground for their
judgment that Van Bokkelen'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 rights guaranteed lhim by said treaty stipulations." .
As has been said, "such a decision would, indeed, have created an en-
tirely different situation."4
In the second argument or note the Haytian Minister maintained that
under article 148 of the Haytian Code of Civil Procedure judgment in the
Van Bokkelen case was null and void. His first proposition in regard to
the action of the court is, 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 decision 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 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 quite clear, from an examination of article 148 of the Haytian Code
of Civil Procedure, referred to by Mr. Preston, that the judges are not re-
quired 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 Haytian procedure

Brief of complainant, pp. 19, 20.
2 Note of Hon. Stephen Preston, Minister from Hayti, to Hlon. Thomas F. Bayard, Secretary of State
of the United States, August 15, 1887.
3 "Statement of Facts and Points of Law," by Hon. Stephen Preston, Minister of Hayti, p. 27, el seg.
4 Brief of complainant, pp. 20, 3'
SBrief of complainant, page 31.









constitutes 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. It further 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. 1
Reference is again made to the conflicting and contradictory positions
assumed, at different stages of the proceedings, by the defendant Govern-
ment, for the purpose of showing how important and necessary it has been
for the Referee to confine himself to the narrow ground furnished in the
single issue suggested by the terms of the arbitration. The language of the
Protocol necessarily fixed the decision of the Haytian courts and the action
of the Executive of Hayti as the starting point for the Referee's examination
and decision.2 And the treaties between the high contracting parties were
made the supreme law for his consideration and guidance.

IN CONCLUSION..
Whether the literal, natural meaning of the language, or the spirit of
the Treaty of November 3, 1864, or the common intention of the contract-
ing parties be regarded, I am of opinion, first, that the imprisonment of
Charles Adrian Van Bokkelen, a citizen of the United States in Hayti, was
in derogation of the rights to which he was entitled as a citizen of the
United States under stipulations contained in the Treaty between the United
States and Hayti. Second, that the record of the case and the correspond-
ence between the two Governments fails to disclose any extenuating circum-
stances or sufficient justification for the harsh treatment and protracted im-
prisonment of Van Bokkelen by the constituted authorities of the Republic
of Hayti, notwithstanding the earnest and repeated protests of the represen-
tatives of the United States; and I award that the Republic of Hayti pay to
the United States, on behalf of the representatives of Charles Adrian Van
Bokkelen, the sum of sixty thousand dollars ($60,000).
Witness my hand this 4th day of December, A. D. 1888, at the City of
Washington.
ALEX. PORTER MORSE,
Referee.

1 Note of Third Assistant Secretary of State, page 8.
2 Decree of the Court of Port-au-Prince, May 24, 1884; decree of the Court of Cassation, February 26,
1885; annual message of President Salomon; Foreign Relations, U. S., 1885, pp. 499, 535, 536.