No. 370.
Mr. Bayard to Mr.
Thompson.
Department
of State,
Washington, June 15,
1885.
No. 4.]
Sir: The Department has received Mr. Langston’s No.
740, giving the awards of the recent mixed commission in the following
claims of American citizens, on account of property destroyed in connection
with the events transpiring on the 22d and 23d September, 1883, at
Port-au-Prince, viz:
| Claim of Mr. C. W. Mossell |
$5,551 50 |
| Claim of Mr. E. V. Garrido |
1,791 00 |
| Claim of Mrs. M. Hamilton |
720 00 |
| Claim of Bertram Brothers |
1,800 00 |
| Claim of Mrs. I. Fournier (in a matter of personal
property) |
1,000 00 |
“As regards the real property belonging to Mrs. Evan Williams and Mrs.
Isabella Fournier, amounting in the first case to $10,000 and in the other
to $1,500” says Mr. Langston, “the commissioners could not agree,” the two
commissioners of the Haytian Government “claiming that, since foreigners
cannot buy and hold real property in Hayti, according to the constitution
and laws thereof, these citizens of the United States cannot recover the
several amounts claimed for their property named.”
Mr. Langston continues his dispatch by observing that, in his opinion, the
said claimants (Mrs. Williams and Mrs. Fournier) have valid claims and
precedents in their favor, and adds:
Unless, then, instructions to the contrary shall he received from the
Department, the claims of Mrs. Williams and Mrs. Fournier shall be
duly pressed for settlement.
It is understood that these claimants held title deeds to the real property
in question, and that no legal proceedings had ever been taken dispossessing
them.
That being the case, their losses were actual and consequent on the same
causes which inflicted the losses of the other United States citizens, whose
claims have been partially allowed. The legal aspect of the case is clearly
set forth in the inclosed copy of a report on the subject of Mr. Langston’s
No. 740, by the law officer of the Department.
Without quoting this report bodily, you will proceed, on the principles of
law which it discloses, in your representations to the Government of Hayti
in the premises, and, pressing the considerations involved, will ask for
indemnity to these particular claimants.
I am, &c.,
[Inclosure in No. 4.]
Report of the Law Officer of the Department of
State.
Department of State, Law Bureau,
Washington, D. C., June 13, 1885.
The question submitted by the accompanying papers is whether the fact
that foreigners are prohibited by the local law from holding real estate
in Hayti precludes them from making claim on the Government of Hayti
under the recent commission for damages sustained by real estate owned
by them in Hayti. The question, as thus put, answers itself. If a
foreigner holds real estate under such a limitation, no matter how
defeasible his title may be he owns something, for the arbitrary
spoliation of which by the Government he has a claim for redress. A
foreigner’s title to real estate under such a limitation may be likened
to that of a foreigner’s title to real estate under the laws of many of
our States. It is true that under such laws the foreigner
[Page 526]
is prohibited from holding
real estate, yet it is equally true that he has an inchoate interest in
such real estate when purchased by him and entered on, which can only be
defeated by legal procedure in the nature of au inquisition duly
instituted. Nor is this position one of mere local legislation. Not only
by the English common law, but by the old Roman law, as accepted in the
Spanish settlements in America, a foreigner is entitled to hold real
estate, where there is such a prohibition, against even the Government,
until legal proceedings are taken for his eviction (Hammekin v. Clayton, 2 Woods, 336; Phillips v. Moore, 100 U. S. 208).
The rule is that an injury done to a prima facie
title exposes the party inflicting the injury to legal process as
unquestionably as if the title was perfect. Titles, no matter how
imperfect, are not to be determined by violence. Even supposing that the
sole title is that of possession, yet the possessor cannot be
dispossessed except by process of law. And this view is strengthened in
cases like the present, when the possessor, there being no adverse
private interest, and the Government being the only party entitled to
make complaint, is permitted by the Government to remain in possession.
This validates his possession so far, at least, as to prevent his
expulsion, except by legal process. In the present case, however, the
damage complained of was inflicted, not by legal process, but by
arbitrary and revolutionary violence, for whose consequences the
Government of Hayti holds itself in other relations responsible. If so,
it is responsible for damages done by it to a title, which, though
inchoate and imperfect, is nevertheless an interest whose spoliation is
a subject of legal redress. I therefore respectfully report that the
minister of the United States at Hayti be instructed to press these
considerations on the Government of Hayti, and to ask for indemnity to
these particular claimants for the damages thus sustained by them.
Respectfully submitted.
FRANCIS WHARTON,
Law
Officer.
