No. 363.
Mr. Langston to Mr.
Bayard.
Legation of
the United States,
Port-au-Prince,
Hayti, May 9, 1885.
(Received May 21.)
No. 736.]Sir: Referring to your dispatch No. 343, March 28,
1885, having reference to the case of Mr. C. A. Van Bokkelen, confined in
the jail of this city for debt, denied the benefit of the insolvent act,
because he is a foreigner, I have the honor to bring to your attention the
correspondence which has passed between this legation and the Government of
Hayti, latterly, on such subject.
[Page 514]
This correspondence is composed of three dispatches, of April 17 and 28 and
May 5, 1885, respectively, from me to the honorable secretary of state of
foreign relations, ad interim, Mr. Prophète, in the first and third of which
Mr. Van Bokkelen’s release is demanded upon the clear and unanswerable
argument which you present in your dispatch above referred to, a copy of
which constituted the Inclosure of my dispatch of April 17, and of the reply
made by the Government of Hayti by Mr. Prophète, dated April 29, 1885, in
which its refusal to release Mr. Van Bokkelen, with its reasons therefor, is
presented with great fullness.
Copies of such several dispatches and the translation of that of Mr. Prophète
are herewith transmitted, and to them the attention of the Department is
very respectfully invited.
Although this legation has pressed this case, so clear and reasonable in all
its features of justice and law, upon the attention and consideration of
this Government, finally, in view of the presentation, lucid and apparently
irresistible, as regards the right of an American citizen to make an
assignment of his personal effects, under the treaty subsisting between the
United States and Hayti, in this country, of your instruction No. 343, Mr.
Van Bokkelen is still confined in the common jail, denied his liberty.
After reading the argument of Mr. Prophète in explanation and support of the
decision of the court of cassation in reply to your dispatch, in this
matter, I deemed it only proper for me to renew my demand for Mr. Van
Bokkelen’s release, upon a due reconsideration of the case as presented;
hence my dispatch of the 5th instant to such effect.
Awaiting your further instructions in the matter,
I am, &c.,
[Inclosure 1 in No. 736.]
Mr. Langston to Mr.
Prophète.
Legation of the United States,
Port-au-Prince, Hayti, April 17, 1885.
Sir: I have the honor, upon the further
instruction of my Government, to bring to the attention and
consideration of your Government the case of Mr. C. A. Van Bokkelen, a
citizen of the United States, who, though in feeble and failing health,
has been too long and still is detained in your prison, denied by your
courts the right to make an assignment of his property for the benefit
of his creditors, and thus secure his release.
The views of the Government of the United States on this subject are
fully and plainly set forth in the dispatch of the honorable Secretary
of State, Mr. T. F. Bayard, a copy of which, in obedience to his
instructions, as you will see on reading the dispatch, I have the honor
to transmit to you as herewith inclosed.
The several considerations presented by the Government of the United
States in the dispatch, a copy of which is transmitted, in favor of Mr.
Van Bokkelen’s immediate release, are so thoroughly in accord with the
provisions of the treaty referred to, existing between the United States
and Hayti, the principles of international law universally accepted, as
well as every doctrine of comity, that I am fully persuaded that your
Government, animated, as always, by an intelligent, profound sense of
justice, as well as a desire, earnest and lively, to maintain the good
understanding which so happily exists at this time between the
Government of the United States and the Republic of Hayti, will, at
once, order the release of Mr. Van Bokkelen. In such belief and hope, I
await, Mr. Minister, your early response in this matter.
Renewing, &c.,
[Page 515]
[Inclosure 2 in No. 736.]
Mr. Langston to Mr.
Prophète.
Legation of the United States,
Port-au-Prince, Hayti, April 28, 1885.
Sir: I beg to remind you, most respectfully,
that on the 17th instant I had the honor to write you with regard to the
detention and release of Mr. Van Bokkelen. In my dispatch I transmitted
a copy of the communication of the honorable Secretary of State of the
United States Government, Mr. Bayard, touching the subject referred to.
I asked, also, your immediate attention to the subject, and your reply
with regard thereto, expressing the hope that your Government would
release Mr. Van Bokkelen without delay.
As yet I do not receive, after fully eleven days, even the acknowledgment
of the receipt of my dispatch.
May I ask you, Mr. Minister, to let me hear from you without further
delay?
I am, &c.,
[Inclosure 3 in No.
736.—Translation.]
Mr. Prophète to Mr.
Langston.
Department of State of Foreign Relations,
Port-au-Prince, April 29, 1885.
Mr. Minister: I have had the honor to receive
your letter of the 17th instant, containing a copy of the dispatch of
Hon. T. F. Bayard, Secretary of State of the United States, addressed to
you upon the subject of the detention of Mr. Van Bokkelen and the
judgment of the court of cassation of the Republic of the 26th
ultimo.
I transmitted to the secretary of state of justice this communication,
which concerns his department, and my colleague has been good enough to
enable me to respond.
The department of state in examining the judgment delivered on the 26th
ultimo by the court of cassation, appears to have omitted the real
reason of this decision and confined itself simply to a secondary
consequence, besides without remarkable importance, drawn by
supererogation from the principal fact for which the appeal of Van
Bokkelen had been rejected.
You will permit me to replace the matter upon its true ground, and to do
it I will follow the very text of the judgment.
It is not as the honorable Secretary of State of the United States, Mr.
T. F. Bayard, thinks, the impossibility resulting, for a Haytian, from
articles 6 and 9 of the treaty of 1865, between the United States and
Hayti, to invoke in the United States, the right of judicial assignment,
which has determined the confirmation by the supreme court of the
judgment rendered by the civil tribunal the 27th May, 1884.
A simple glance of the eye upon the judgment of the 26th ultimo, will
convince you that the decision of the court of cassation is founded
especially upon this incontestable fact that the benefit of the
insolvent act being an institution of the civil law, foreigners are
excluded therefrom. This opinion of the first court of the Republic
entirely conforms to the actual legislation of Hayti, is far from
constituting an attempt of innovation in the matter; it is supported by
the recognized authority of the most eminent jurisconsults. (Duraton, t.
12. No. 270; Foullier, t. 7, No. 263; Pardessus, Commercial Law, No.
1328; Delvan, Court, t. 3, p. 634, note 11, p. 187. Carré and Chauveau,
No. 3057; Berriat St. Prix, p. 685, note 1st; Favard de Langlade, t.
1st, p. 446.)
Nevertheless, to gain for himself the benefit of the insolvent act, Mr.
C. A. Van Bokkelen has invoked the treaty of 1865, and, in this regard,
the court of cassation, considering with reason that this treaty in its
articles 6 and 9, cited by the demandant, even in granting access to
American citizens to the Haytian courts of justice, contains nothing
which authorizes the opinion that the right of judicial cession exists
for the Haytian citizen in the United States of America and, in Hayti
for the American citizen.
It is incontestable that nations, as individuals, are never presumed to
intend in contracting to injure their rights and their interests, and in
this special case it is the
[Page 516]
rule that the judges ought, in spite of the expression “or otherwise,”
from which Mr. Van Bokkelen has deduced a forced conclusion, to prefer
the interpretation which accords with the common law and the public law
to that which would contradict the principles. Besides, an express
stipulation of the treaty would alone be able to abrogate the formal
text of the law. Whence it follows that the Haytian courts, in
interpreting in the sense of the common law in Hayti the treaty of 1865,
have remained within the limits of their authority. If it is true that
treaties are acts of Government with Government their interpretation not
the less appertains to the courts, always as contests which give place
to such interpretation have for their object private interests. (C.
Cass. ch. C, 24 June, 1839. Dalloz, jurisp. Gle. V, treaty int., No.
156. C. Cass. ch. req., January 6, 1873; ch. er. 27 January, 1879, id. 1878, &c.)
In the affair of Van Bokkelen, as regards the treaty in question, the
responsibility of the executive power as representative of a sovereign
state, finds itself, so to speak, divided by the necessary division of
this sovereignty, and, consequently, of this responsibility with the
other powers in that which concerns the treaties of this nature, it
being granted that treaties and conventions ought to be understood in a
sense which accords with the public order established among the people
contracting, and particularly with their maxims of public law and their
system of jurisprudence (C. Cass. ch. req., 17 March, 1830; Dalloz, t.
int., No. 149). Then the interpretation given by the supreme court of
Hayti is entirely harmonious with public order in Hayti and Haytian
public law, according to which the high contracting powers have not and
could not have intended to produce injury. Moreover, as I have shown,
the contest which has necessitated this interpretation has for object
private interests.
I will not insist further upon the irrefutable plausibility of motive
upon which rests the decision of the court of cassation of Hayti. I
shall be permitted to add that the Government of the Republic does not
depart for an instant and shall never depart, in its excellent relations
with the United States, from that sentiment of justice which it makes
the rule of its conduct, and of that courtesy so necessary between
friendly nations; although it is its duty to watch with attention and
scrupulous care that no injury may be brought to the principles
consecrated in the constitution of the Haytian people.
I have, then, to regret not to be able to order the setting at immediate
liberty of Mr. Van Bokkelen, incarcerated in consequence of a regular
judgment providing constraint of the body, and confirmed by the supreme
court of Hayti, because, on the one part he is a foreigner, and the
treaty of 1865, as I have shown, duly interpreted by the Haytian
tribunals, does not mention the judicial assignment of goods, which is
an institution of civil law, the benefit of which is only profitable to
the Haytian; on the other part, because, in acting as you desire, not
only would the executive power transcend its powers, but it would
voluntarily expose itself to legitimate demands of the American firm of
Toplitz & Co., who prosecute Mr. Van Bokkelen.
Accept, &c.
[Inclosure 3 in No. 736.]
Mr. Langston to Mr.
Prophète.
Legation of the United States,
Port-au-Prince, Hayti, May 5, 1885.
Sir: In acknowledging the receipt of your
dispatch of the 29th ultimo, in which you state that your Government
refuses to give Mr. Van Bokkelen his liberty, as demanded by the
Government of the United States, I have the honor, while protesting
against such action, whereof I have advised my Government, to inform you
that for the reasons already presented, which are in no wise met, as I
conceive, by you, I must insist upon the immediate release of our
citizen.
Trusting that upon due, careful reconsideration of the facts and the law
of this case, having considerate regard to the kindly spirit which has
hitherto inspired and animated the conduct of this legation and the
Government of the United States of America toward the Government and
people of Hayti, that your Government will find it wise to comply at
once with the demand which I now make again, and upon which I do and
shall insist.
Offering, &c.,
