In his reply the Haitian secretary of state, after setting forth his
views of the question in a lengthy argument, concludes by saying that
American citizens shall continue, as since 1898, to be assimilated to
Haitian citizens and that, conformable to the reserve indicated in the
correspondence exchanged between this legation and his department at the
time, the Haitian Government will soon present to our Government a
proposal to modify the treaty of 1864.
[Inclosure.—Translation.]
Mr. Férère to
Mr. Powell.
Department of State for Foreign Relations,
Republic
of Haiti,
Port au
Prince, February 3,
1904.
Mr. Minister: I have the honor to
acknowledge the receipt of the dispatch that you addressed to me on
the 20th of November last to draw my attention to the interpretation
given by the Haitian Government to the new license law and to
observe at the same time that it is in conflict with the terms of
the treaty that exists between the two Governments.
I must first beg you, Mr. Minister, to have the high courtesy to
excuse my delay in replying to you. On account of the importance of
the communication that is the object of your dispatch, you will
admit that some time was necessary for me to acquaint myself with
what had been done and to search the archives of the department, the
elements with which to enlighten my judgment. To-day, that I am
enabled to make known to you the opinion of my Government on the
subject in question, I beg you to kindly lend me all your
attention.
It appears from my investigations that the Government of Haiti,
through one of my predecessors, Mr. Brutus St. Victor, was brought
in 1898, and after a rather long discussion, to admit the
interpretation given by the Government of the United States to
Article V of the treaty of 1864, but my intimate conviction, shared
by the whole Government, remains just as it is stated in my dispatch
of October 20 last, written to Mr. Alexander Battiste, in charge of
the American legation at Port au Prince; that is to say, that it is
a judicial error to base on Article V, instead of Article II, the
reciprocal condition of American citizens in Haiti and of Haitian
citizens in the United States, since the most-favored-nation clause
that establishes that condition, and, furthermore, only specially
applies to the commercial system, is only to be found in Article II.
When I thus express myself, Mr. Minister, I base myself not only on
the literal sense of the words and on the principle of public law
that governs the matter, but also on the written text of the treaty
of 1864 as it is to be found in the compilation of treaties and
conventions concluded between the United States of America and other
powers, published under the eye and seal of the Department of State
itself. In fact, in that compilation, which I have at this moment in
hand, I see alongside of each article a rubric indicating the
subject dealt with in the article. Thus Article I, to begin with,
bears the rubric peace and friendship;
Article II, most-favored-nation privilege;
Article III, case of war; Article IV, property not to be confiscated (in case of
war, of course, as confiscation can only take place in that case);
Article V, exemption from military service.
For more precision, I transcribe textually Article V:
Article V.
The citizens of the high contracting parties
residing or established in the territory of the other shall be
exempt from all compulsory military duty by sea or by land, and
from all forced loans or military exactions or requisitions; nor
shall they be compelled to pay any contributions whatever higher
or other than those that are or may be paid by native
citizens.
Who does not see that the contents of this Article V, the same as the
two preceding, provides for a state of war, and not commercial
conditions already provided for in Article II? Can it be reasonably
supposed that two nations, friendly and living in peace, would exact
military service of each other’s citizens; and how can it be alleged
that the special clause of a diplomatic act, which exempts these
citizens from all compulsory military duty, contemplates a
commercial system and not the particular condition resulting from a
state of war? No; it is only in case of war that such exactions
could be justified, and it is certainly in order to guard against
this possible exigency that the two States signatory to the act of
1864 have specified therein, beside the exemption from military
service, other guarantees, such as the prohibition of subjecting
their respective citizens to forced loans and exactions, and of
compelling them to furnish higher or other contributions than the
natives. This last word, contribution, is
doubtless capable of different meanings, and has afforded grounds
for the interpretation contrary to ours; but, coining in an article
and, moreover, in a sentence which only deals with acts of war, the
only meaning it can bear in this particular case is this: “That
which is given to the enemy for protection against military
executions.” (Littré.) Therefore, reason, logic, good sense, and
equity all unite here in support of the interpretation that I
[Page 383]
maintain, without taking
into account that in no convention of this character the favorable
treatment can be given and acquired only for a fixed time; while the
assimilation of the respective citizens of our two States, as
established by Article V, although applicable only to the case of
war (which God forbid), appears, according to your interpretation,
to be made perpetual, like the friendship and the peace of which it
is only the corollary. The difference between the condition which is
created by Article II and that which springs from Article V, one is
special, and relates to the commercial and industrial treatments;
the other applies to all the citizens without distinction in case of
war between the two countries.
Although I am not confident, Mr. Minister, of my ability to cause the
Federal Government to alter a decision—bad, it is true—already
reached and accepted by the two parties, I nevertheless cherish the
hope of convincing you personally of the justice of the cause I am
defending. I further venture to hope that acting under the high
sense of justice and equity of which you have so often given proof,
you will take a favorable view of the position of the small Haitian
nation—friend and admirer of the great American nation—which, on
account of its having at one time yielded to the impulse of a too
justly inspired confidence, is now threatened with a loss of the
privileges that all States ordinarily reserve for their citizens
only, and induce your Government to concur in the said views. For it
is certain that if the Americans are assimilated to the Haitians,
the French who have a treaty with us, signed in 1838, which contains
the most-favored-nation clause (which, however, is not to be
confused with assimilation) will not fail to claim the same
treatment, and God only knows what attacks from other parts will be
directed against us.
If, therefore, the Federal Government, notwithstanding our just and
legitimate observations, adheres to the interpretation of article 5
of the treaty of 1864, as it has done in the past, it becomes my
duty, Mr. Minister, to inform you that American citizens shall
continue, as they have since 1898, to be assimilated to the Haitian
citizens, and that conformably to the reservation indicated in the
correspondence exchanged at the time between your legation and my
department, the Government of the Republic of Haiti will soon take
occasion to present to yours a proposal to modify the important
diplomatic instrument that binds our two countries.
Please accept, etc.,
