Mr. Bayard to Mr. Thompson.
Washington, May 21, 1885.
Sir: In the examination of the correspondence on file in this Department in relation to the Haytian mission which you have made prior to setting out for your post, you have had an opportunity to acquaint yourself with the facts in the case of Mr. C. A. Van Bokkelen, a citizen of the United States now in prison for debt in Hayti under certain civil judgments rendered by the courts of that country. All the papers in the case will also be found of record in the legation at Port-au-Prince.
It is unnecessary, therefore, to recite the facts of Mr. Van Bokkelen’s case, or to refer to its merits, further than to say that, in the opinion of this Government, it presents a clear infraction of the rights of an American citizen under existing treaties between the two countries, by depriving him of his liberty and forbidding him certain legal resorts which a Haytian can employ in Hayti, and of which a Haytian, if the case were reversed, could not be deprived in the United States.
The question being of Mr. Van Bokkelen’s competency to make an assignment for the benefit of his creditors in order to take legal proceedings in bankruptcy, it is found that by one law of Hayti the security offered must be in real estate, and that by another law he, being an alien, cannot hold real estate. Hence he is compelled to possess what he cannot be permitted to possess, and in this dead-lock of conflicting laws he is subjected to treatment to which no Haytian could be subjected, and, in fine, a discrimination is enforced against him solely because he is a citizen of the United States.
It is no defense to this statement to say that, under the laws of Hayti, he cannot be otherwise treated. That such a conflict between different laws can and does exist, is of itself a violation of those stipulations of existing treaties which guarantee to an American citizen in Hayti (as to a Haytian in the United States) the same rights and resorts in proceedings at law as to native citizens of the respective countries. To close to an alien litigant some given channel of recourse open to a native without leaving open some equivalent recourse, is a denial of justice, and to base a persistent refusal to afford a remedy upon the letter of defective or conflicting laws is at once an admission of failure of justice, to the injury of the alien, and an attempt to justify by the mere fact of such evident failure a discriminatory course toward an alien prohibited by treaty and repugnant to public law.
This Government is, from every point of view, in a position to insist on the substantial, if not identical, equivalence of treatment of Americans and Haytians before the Haytian courts.
This case will demand your careful attention and action from the moment of your arrival at your post, and you will lose no opportunity to endeavors to impress the Haytian administration with the necessity of getting this matter out of the way of the desirable good relations of the two countries.
You will not, without further instructions, present the matter in writing by way of remonstrance or appeal.
This Government has twice of late made solemn and, as it believes, just representations invoking the sense of justice, of equity, and of [Page 518] treaty faith of the Haytian Government, and has been met by positive denial. In that direction it is not easy to see what more can be said.
You will, however, in conversation with the minister for foreign affairs, take the ground that the Government of the United States regards the refusal to Mr. Van Bokkelen by the Haytian authorities of the right to make an assignment as a discrimination against citizens of the United States, which is in conflict with treaty.
That it will greatly conduce to the maintenance of friendly relations with the United States for the Haytian Government to see to it that Mr. Van Bokkelen is granted in substance all the privileges that would be granted to citizens of Hayti.
You will say that it may become the duty of the President to lay before Congress any continued discrimination of this kind in defiance or repudiation of treaty duty.
You will, however, forbear from making the release of Mr. Van Bokkelen a condition of diplomatic intercourse, or from declaring that a refusal to release will be followed by any other action by the Government of the United States than as above specified.
You will, of course, bear in mind that this Government has no desire and can have no purpose to obtain for Mr. Van Bokkelen immunity from any just responsibility which may attach to him and which would under like circumstances attach to a Haytian citizen.
You will keep the Department advised of all that may transpire in this relation, being careful to make full and prompt report of your conversations on this subject.
I am, &c.,