Mr. Bayard to Mr. Langston.
Washington, March 28, 1885.
Sir: I have to acknowledge the receipt of your No. 720, of the 4th instant, in which you inclose a copy of the decree of the supreme court of Hayti, affirming the decision of the “civil tribunal” in the matter of the application of Mr. C. A. Van Bokkelen to terminate his imprisonment on a fair and full assignment of all his property for the benefit of his creditors.
It appears that on a judgment being entered in the courts of Hayti against a party who is insolvent he is ordered by the court to imprisonment for a period fixed at the court’s discretion.
The severity of this process, however, is mitigated by the provision that by an assignment the insolvent, if there be no proof of fraud, is entitled to release.
[Page 508]In other words, what exists in Hayti is imprisonment for debt, such imprisonment to terminate on a fair and full assignment of all the insolvent’s property for the benefit of creditors. Hence, the right to inforce a debt by such imprisonment, and the right to have the imprisonment terminate by making a fair and full assignment, are rights reserved by law, the first to every creditor, the second to every debtor.
The right to ward off imprisonment in this way is as much an everyday right of residents of Hayti as is the right to sue and enforce the suit by imprisonment. The right to terminate such an imprisonment by assignment is as much a part of the decree of imprisonment as is the imprisonment itself.
In order to avail himself of this right, Mr. Van Bokkelen applied for leave to make the “cession de biens,” presenting what may be called in our law a petition in bankruptcy.
This appeal was made by him to the “civil tribunal,” by whom it was rejected, not on the plea of fraud, which could be readily understood by this Government, and which could be sustained on the principles of international law, but on a plea not sustainable in international law; that while liability to imprisonment for debt attaches to foreigners as well as to Haytians, to Haytians alone, and not to foreigners, belongs that privilege of release on assignment of assets, which the Haytian code makes an incident of the imprisonment.
This decision was made on May 27, 1884, and from it Mr. Van Bokkelen entered an appeal to the court of cassation, the supreme court of Hayti.
By this court a decree of affirmation was entered on the 26th ultimo. It is with no disrespect to the eminent judges by whom this opinion was given that I proceed to observe that not only is it irreconcilable with accepted principles of international law, but that it cannot be regarded as in any way defining the duties of Hayti as a sovereign state.
The duties of the Haytian Government to the United States are not determined by Haytian legislation nor by Haytian judicial decisions, but by the law of nations. The opinion of the court of appeals of Hayti in no respect settles the international liabilities of Hayti.
These liabilities, so far as concerns the United States, are determined by the principles of international law, as limited by the treaty stipulations, which form the supreme law of the land, both in Hayti and in the United States.
The treaty of 1865, appealed to by the court, is first lobe considered. The pertinent articles of that treaty are as follows:
Art. VI. The citizens of each of the contracting parties shall he permitted to enter, sojourn, settle, and reside in all parts of the territories of the other, 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. While they conform to the laws and regulations in force, they shall be at liberty to manage themselves their own business, subject to the jurisdiction of either party respectively, as well in respect to the consignment and sale of their goods as with respect to the loading, unloading, and sending off their vessels. They may also employ such agents or brokers as they may deem proper, it being distinctly understood that they are subject also to the same laws.
The citizens of the contracting parties shall have free access to the tribunals of justice, in all cases to which they may be a party, on the same terms which are granted by the laws and usage of the country to native citizens, furnishing security in the cases required, for which purpose they may employ in the defense of their interests and rights such advocates, solicitors, attorneys, and other agents as they may think proper, agreeably to the laws and usages of the country.
Art. IX. The citizens of each of the high contracting parties, within the jurisdiction of the other, shall have power to dispose of their personal property by sale, donation, testament, or otherwise, and their personal representatives, being citizens [Page 509] of the other contracting party, shall succeed to their personal property, whether by testament or ab intestato.
They may take possession thereof, either by themselves or by others acting for them, at their pleasure, and dispose of the same, paying such duty only as the citizens of the country wherein the said personal property is situated shall be subject to pay in like cases. In the absence of a personal representative, the same care shall be taken of the property as by law would be taken of the property of a native in a similar case, while the lawful owner may take measures for securing it.
If a question as to the rightful ownership of the property should arise among claimants, the same shall be determined by the judicial tribunals of the country in which it is situated.
This Government contends that, for the reasons already given, Mr. Van Bokkelen is entitled not merely to have the same rights before the Haytian tribunals of justice and in Haytian process which he would have if he were a Haytian citizen, but that the term “otherwise” in the ninth article enables him to dispose of his goods by means of a general assignment for the benefit of his creditors as freely as he could by “sale, donation,” or “testament.”
It is further contended that as, by the law of Hayti, the right to the release of an imprisoned debtor after an assignment for the benefit; of creditors is incident to imprisonment for debt when a Haytian is the defendant; so, under the treaty, it is an incident of imprisonment for debt when a citizen of the United States is the defendant.
It is true that the treaty, in respect to citizens of the United States appealing to Haytian courts, contains the clause, “furnishing security in the cases required.” This provision is familiar not only in international But in municipal law, and as to it I have to say (1), that it is, in both systems, understood to mean security for costs; and (2), that in Mr. Van Bokkelen’s case there is no pretense that he was obliged to “furnish security” in any case in which the term can be properly used.
If, however, the opinion of the court of cassation may be understood to exhibit the position of the Haytian Government, it may be that the action of that Government in sustaining Mr. Van Bokkelen’s detention is founded on a misapprehension which can be readily removed. The opinion says that “there can be concluded from the terms of articles 6 and 9 of the treaty nothing which would authorize the opinion that this right could be invoked in the United States by a Haytian.”
There is no jurisdiction in the United States in which the right of a Haytian to make an assignment of his entire estate for the benefit of his creditors does not rest on the same basis as that of a citizen of the United States; and there is no jurisdiction in the United States in which the right to discharge consequent upon such assignment would not belong to the Haytian on the same footing as to the citizens of the United States.
If comity is the ground on which the Haytian Government rests, then, on the ground of comity, Mr. Van Bokkelen should be at once released, with such indemnity as is due to him from his imprisonment under this mistake of fact.
The grievance to Mr. Van Bokkelen is serious; He has been confined, though in failing health, for quite a year, in a prison, and by this proceeding not only are his means of supporting himself and paying his creditors for the time destroyed, but his business, should he survive, has received a serious if not a fatal shock. But the injury to the commercial interests both of Hayti and of the United States is vastly more far reaching. No citizen of the United States will be hereafter willing to do business in Hayti, if, for indebtedness to which no taint of criminality is imputed, he is to be subjected to imprisonment so long and so oppressive as to involve the destruction of his means of livelihood as [Page 510] well as injury to his health and misery to his family. It is not to the interest of either Hayti or the United States that such a condition of things should exist.
I forbear in this place to show in detail that by all civilized nations imprisonment for debt is now abolished. I forbear, also, to show what could be readily shown, that the cessio bonorum, with its incident of release from imprisonment, is now, by a principle accepted in modern international law, incident, as a matter of course, to all processes in which any insolvent debtor is under arrest in a case not involving a criminal offense. I forbear, also, to press the fact already noticed, that on principles of comity, as appealed to by the Haytian Government in this very case, there is no ground for Mr. Van Bokkelen’s further detention, since in every jurisdiction in the United States the right to make an assignment for creditors, and the privilege of obtaining relief accruing thereby, belong to the foreigner as well as to the citizen.
The release of Mr. Van Bokkelen is now asked on independent grounds. It is maintained, first, that continuous imprisonment for debt, when there is no criminal offense imputed, is contrary to what are now generally recognized principles of international law. It is maintained, secondly, that the imprisonment of Mr. Van Bokkelen is a contravention of articles 6 and 9 of the treaty of 1865 between the United States and the Republic of Hayti.
The Haytian Government have a clear and ample opportunity to relieve this case from all difficulty by recognizing the error of their courts in supposing that the privilege of release of an imprisoned debtor would be denied to a Haytian citizen by the United States courts, upon making assignment of his property for the benefit of his creditors.
You are now instructed to earnestly press the views of this Government, as outlined in this instruction, on the early attention of the Government of Hayti, by leaving a copy thereof with the minister of foreign affairs.
The response of the Government of Hayti should be promptly communicated to this Department.
I am, &c.,