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XXI. HAYTI.

$ 843.

As is elsewhere shown, the independence of Hayti was not formally recognized by the United States till 1862.

Supra, $ 39.
See, in this relation, Moore, Int. Arbitrations, V. 4476-4477; act of Feb.

28, 1806, 2 Stat. 351 ; act of Feb. 24, 1807, 2 Stat. 421.
With reference to the correspondence of Commodore Elliot with the

government of Hayti, and the desire of the United States to procure the abolition of the discriminating duties which operated against American commerce, see Mr. Livingston, Sec. of State, to Mr. Wood

bury, Sec. of Navy, Feb. 8, 1832, 25 MS. Dom. Let. 11. As to arbitrations between the United States and Hayti, see Moore, Int.

Arbitrations, II. 1749, 1807, 1859.

By Article III. of a treaty between Hayti and the Dominican Republic, concluded in 1874, the contracting parties agree not to alienate in favor of any third power the whole or any part of their territories bor to solicit or accept any foreign annexation or control. These stipulations are declared to be perpetual.

Mr. Léger, Haytian min., to Mr. Hay, Sec. of State, March 5, 1904, For.

Rel. 1904, 371.

In 1894 the United States made representations to the Haytian government concerning a discrimination in Haytian ports in favor of sailing vessels by levying duties on their registered tonnage, which was only half or less than half their carrying capacity, while duties were levied on every ton of cargo landed by a steamer. The Haytian government, in reply, gave reasons why the law should not be modified.

For. Rel. 1894, 355 ; For. Rel. 1895, II. 810.
For an explanation of the practice of detaining sailing vessels till duties

on their cargoes are paid, see For. Rel. 1894, 351-355.

The "rights of residence and business [of citizens of the United States in Hayti] are defined by the treaty of 1864, and they are expressly guaranteed by the sixth article thereof, 'to enter, sojourn, settle, and reside in all parts of 'Hayti; there to engage in business, hire and occupy warehouses, provided they submit to the laws, as well general as special, relative to the rights of traveling, residing, or trading. The fifth and seventh articles of the treaty are also pertinent, and these provisions taken together constitute a solemn guaranty of unmolested residence of our citizens in Hayti, so long as they shall obey the laws."

Mr. Uhl, Acting Sec. of State, to Mr. Smythe, min. to Hayti, March 27,

1894, For. Rel. 1894, 317, replying to an inquiry whether, if an American citizen should be expelled without any statement of reasons, a demand would be justified for “ proof of such citizen's connection with treasonable practices, which would justify the virtuai confiscation of his property (through the ruin of his business)." The inquiry was prompted by a decree of the Haytian government expelling six citizens of France, and reciting as the ground therefor that “international law confers on each independent state the right to expel from its territory foreigners whose actions are dangerous to public tranquillity and order,” and that the presence of the persons named was considered · dangerous to public safety." The French government demanded that the evidence on which the act was based be submitted to it. The matter seems to have been amicably arranged. (For. Rel. 1894, 343, 344, 345–346.)

66

By Article V. of the treaty between the United States and Hayti of November 3, 1864, it is provided that the citizens of one of the contracting parties residing in the territory of the other shall not be compelled to pay “ any contributions whatever higher or other than those that are or may be paid by native citizens.” Held, that the Haytian Government was bound to make reparation for the seizure and sale of the goods of an American firm doing business in that country in order to enforce the payment by certain American employ ees of license taxes under article 9 of the Haytian law of October 24, 1876, which provided that foreigners who should be permitted to carry on any industry other than commerce should“ pay a tax double the amount exacted of Haytians exercising the same industry.”

Award of the Honorable William R. Day, arbitrator, in the matter of the

claims of John D. Metzger & Co. v. The Republic of Hayti, protocol of

Oct. 18, 1899, For. Rel. 1901, 262, 267–276.
The arbitrator in his award said : “ This law (Oct. 24, 1876), so far as it

affects American citizens, is in direct violation of the stipulations of
the treaty. In practice it is shown that these license taxes were
seldom enforced against workmen in Hayti. By direct enactment of
law the solemn obligations of the treaty are ignored and discrimi-
nating burdens imposed upon foreigners without exception. When
this condition of affairs was diplomatically called to the attention of
the authorities of the Republic of Ilayti, it is to the credit of that
government that it promptly conceded that American citizens had
rights under the treaty which deserve protection and which the
government of Hayti undertook to see were duly guarded, leaving
Metzger & Co. to pursue their remedy of the infraction of their
rights already sustained.” (For. Rel. 1901, 274–275.)

By a law enacted October 1, 1897, the Haytian government was authorized to levy taxes on foreign merchants and clerks many times greater than those imposed upon natives in similar occupations. The minister of the United States at Port au Prince was instructed that if any attempt should be made to enforce the law against citizens of the United States he should protest against it as a violation of article

5 of the treaty between the United States and Hayti of November 3, 1864, which expressly declares that citizens of the United States in Hayti shall not be compelled “to pay any contributions whatever higher or other than those that are or may be paid by native citizens.”

Mr. Sherman, Sec. of State, to Mr. Powell, min. to Hayti, Oct. 11, 1897,

For. Rel. 1898, 389, 390, citing Mr. Fish, Sec. of State, to Mr. Bassett,
min. to Hayti, No. 261, March 13, 1876, and Mr. Gresham, Sec. of

State, to Mr. Smythe, min. to Hayti, No. 7, Nov. 27, 1893.
See, also, Mr. Adee, Acting Sec. of State, to Mr. Powell, min. to Hayti,

Nov. 2, 1897, For. Rel. 1898, 392, and Mr. Day, Acting Sec. of State,

to Mr. Powell, min. to Hayti, Dec. 2, 1897, For. Rel. 1898, 395. In a dispatch to Mr. Sherman, Sec. of State, of May 5, 1898, Mr. Powell,

min. to Hayti, reported that the question had been definitely and satisfactorily adjusted” in favor of the contention of the United States. (For. Rel. 1898, 399–402. See, also, id. 387 et seq.)

The Haytian government having adopted a new license law, which provided that foreigners should apply to the President of Hayti for licenses on stamped paper costing four gourdes, and that the licenses should be delivered on stamped paper costing fifteen gourdes, the American minister at Port au Prince protested against the law as contravening Article V. of the treaty of 1864. His action was approved, and he was instructed to renew his protest. The law clearly involved, said the Department of State, "a discrimination in matters of trade against American citizens in favor of Haytian citizens, and is therefore in violation of the stipulations of Article V."

Mr. Hay, Sec. of State, to Mr. Powell, No. 276, Dec. 5, 1898, MS. Inst.

Hayti, IV. 94.
The purpose and extent of Art. V. were explained by Mr. Fish, Secretary

of State, in an instruction to the American minister at Port au
Prince, No. 261, March 13, 1876. See, also, Mr. Gresham, Sec. of
State, to Mr. Smythe, min. to Hayti, Nov. 27, 1893, For. Rel. 1894, 349.

XXII. ITALY.

§ 844. The question of immigration, including the padroni system and the protection of Italian immigrants against it, and the consular inspection of emigrants at Naples, is discussed in For. Rel. 1894, 367– 369; For. Rel. 1898, 406–409, 411-418.

“ You say, “My government supposes you would like to continue a common reciprocity in Italian ports not mentioned in the convention [of Feb. 8, 1868], which is, that your consuls be notified by the Italian authorities of certain visits they are sometimes compelled to make on board American merchant vessels. Hoping you will give the Federal authorities instructions to grant these reciprocal favors to Italian consuls, my government will not fail to issue similar instructions to the proper authorities in Italy. In health visits to an arriving ship and in many other customary visits, where the consul's presence could be of no use such notice is not necessary.'

“ In regard to this point, the visits which I understand you to mean are such visits as are made where the search of a merchant vessel, for fiscal purposes, is instituted by the local authorities in the ports of either party.

" It is in regard to these visits that you suggest that the consul of the nation whose flag the vessel bears shall be notified of the intended visit.

“I have the honor to say that the suggestion seems a very suitable one, and that the proper instructions will be given to the collectors of customs in the ports of the United States to comply with the request of the Italian government, with the understanding that reciprocal proceedings will be adopted by that government.

With what may seem to you extreme caution I am to inform you that the assurances given in this letter are only assurances which this Department makes for itself, and cannot be taken as constituting a part of a consular treaty for modifying its provisions."

Mr. Seward, Sec. of State, to Mr. Cerruti, Sept. 15, 1868, MS. Notes to

Italy, VII. 27.
The consular convention of Feb. 8, 1868, above referred to, was termi-

nated Sept. 17, 1878. (Treaty Vol. (1776-1878), 1234.)

The word " officers” in Art. XIII., line 2, of the convention of Feb. 8, 1868, relating to the recovery of deserters, includes the captain of a ship. This view is concurred in by both governments.

Mr. Seward, Sec. of State, to Mr. Cerruti, Sept. 15, 1868, MS. Notes to

Ital. Leg. VII. 27.
This treaty was terminated Sept. 17, 1878. (Treaty Volume (1776-1887).

1234.)

The words “infamous punishment” (peines infamantes), in par. 8. Art. II. of the extradition convention of March 23, 1868, "are to be understood as applying to the reciprocal description of punishment for crimes prevailing in Italy just as it is expressed in the text of the Italian code. This opinion of the Department, however, must not be understood as legally modifying the language of the convention."

Mr. Seward, Sec. of State, to Mr. ('erruti, Sept. 15, 1868, MS. Notes to

Italy. VII. 29. Jan. 21, 1869, a convention was concluded, amending the paragraph in

question by adding to the words “subject to infamous punishment " the words “according to the laws of the United States, and criminal punishment according to the laws of Italy."

The treaty between the United States and Italy of Feb. 26, 1871, secures (Art. I.) to American vessels the same rights and exemptions as are enjoyed by Italian vessels, as well as (Art. XXIV.) mostfavored-nation treatment.

Mr. Bayard, Sec. of State, to Sec. of Treasury, Dec. 6, 1887, 166 MS.

Dom. Let. 281, transmitting copy of a dispatch from the American minister at Rome, No. 167, Oct. 15, 1887, with enclosures.

Art. III. of the treaty between the United States and Italy of February 26, 1871, requires merely equality of treatment, and that the same rights and privileges be accorded to a citizen of Italy that are given to the United States under like circumstances. This requirement applies to criminal procedure.

Storti v. Mass. (1901), 183 U. S. 138.

The question of the Holy See is elsewhere discussed.

Supra, $$ 18, 45.
As to the question of the withdrawal of the exequatur of the pontifical

consul at New York, see Mr. Fish, Sec. of State, to Baron Blanc,
Italian min., June 24, 1876, MS. Notes to Italy, VII. 301 ; same to
same, July 18, 1876, id. 306; Mr. Evarts, Sec. of State, to Mr. Osborn,

circular, April 3, 1877, MS. Inst. Argentine Republic, XVI. 117.
As to the Propaganda and the American College at Rome, see H. Ex.

Doc. 143, 48 Cong. 1 sess. ; Mr. Frelinghuysen, Sec. of State, to Baron
Fava, Ital. min., June 28, 1884, MS. Notes to Italy, VIII. 85.

xxiv. JAPAN.

1. EARLY ATTEMPTS TO NEGOTIATE.

$ 845.

Edmund Roberts, a sea captain of Portsmouth, N. H., was named by President Jackson his “agent for the purpose of examining in the Indian Ocean the means of extending the commerce of the United States by commercial arrangements with the powers whose dominions border on those seas.' He was ordered on the 27th of January, 1832, to 'embark on board of the United States sloop-ofwar the Peacock,' in which he was to be rated as captain's clerk.' On the 23d of the following July he was told to be very careful in obtaining information respecting Japan, the means of opening a communication with it, and the

value of its trade with the Dutch and Chinese,' and that when he should arrive at Canton he would probably receive further instructions. He had with him blank letters of credence, and on the 28th of October, 1832, Edward Livingston, Secretary of State, instructed him that the United States had it in contemplation to institute a separate mission to Japan,' but that if he should find the prospect favorable he might fill up one

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