CHAPTER XX
LAW AND JUSTICE
Audiencia of Santo Domingo.—Legal system.—Judicial organization.—Observance of laws.—Prisons.—Character of offenses.
In the year 1510 the Spanish government established in Santo Domingo the first of the famous colonial audiencias, or royal high courts, the list of which appears like a roll call of Spain's former glories. Others were added later in Mexico, Guatemala, Guadalajara, Panama, Lima, Santa Fé de Bogotá, Quito, Manila, Santiago de Chile, Charcas (now Sucré), and Buenos Aires. The audiencia of Santo Domingo at first had jurisdiction over all the territory under Spanish dominion in the new world, but upon the establishment, of the audiencia of Mexico and others its jurisdiction was confined to the West India Islands, and the north coast of South America. Its functions were both judicial and administrative, including the power to hear appeals from the judges of the district and from certain administrative authorities, and to intervene in certain matters of government, in the finances of the territory and in behalf of the public peace. The governor and captain-general of Santo Domingo was president of the royal audiencia, though not acting when it sat as a law court, and at times the audiencia alone temporarily carried on the government of one or more of the territories under its jurisdiction. It applied the law as expressed in the codification of the "Laws of the Indies," and the Spanish "Partidas." It sat in the building still called the old palace of government. During the dark days which fell upon the island in the seventeenth century, the presence of the audiencia helped to save the colony from being completely forgotten. It continued in its functions until the country was ceded to France, whereupon in 1799, it was removed to the city of Puerto Principe, in Cuba. Could its records but have been preserved a great many gaps in the history of Santo Domingo, Cuba, Porto Rico and Venezuela would be filled. It seems that the first records were destroyed by Drake in 1583, and almost all the later ones succumbed to the negligence of man and the voracity of the tropical insects. When the government of Cuba in 1906 honored the request of the government of the Dominican Republic for the return of such of the records of the audiencia of Santo Domingo as were still extant, it could find in its national archives and turn over but a score of bundles of documents, mostly records of suits regarding land boundaries in the eighteenth century, of little historic value. These and several small mahogany bookcases still preserved in the present audiencia of Havana, are the only tangible remains of this noted court.
When Santo Domingo again came under Spanish rule in 1809, the colony was included in the territorial jurisdiction of the audiencia of Caracas. Upon the beginning of Haitian rule in 1822, when most of the distinguished citizens, including judges and lawyers, left the country, they took with them the ancient legal system. The Haitians imposed their laws, namely, the Code Napoleon and other French codes. These took such deep root that on the expulsion of the Haitians no attempt was made to return to the Spanish laws, which also at that time were still under the disadvantage of not having been revised and codified in accordance with modern needs. In 1845 the laws of France were expressly adopted by the Dominican Republic. During the troublous times following little attention was given to the legal system, and there was not even a Spanish translation of the codes. After annexation to Spain in 1861 the Spanish authorities attempted to clarify the situation by introducing the Spanish penal code and law of criminal procedure and by appointing a commission to translate the civil code, in which they made several changes, but upon the reestablishment of the Republic in 1865 everything done in this respect by the Spaniards was annulled. Several efforts were later made to secure a translation of the codes, though laws were not often invoked amid so much civil unrest. As late as 1871 the American commission which visited the island reported that the administration of justice had practically fallen into disuse. The local military chiefs and the parish priests decided the questions that arose.
As the country progressed in spite of itself, and there were periods of peace, the need of an official Spanish text of the laws became more pressing, and at length in 1882 a commission was appointed to translate and adapt the French codes. On the report of the commission a civil code, a code of civil procedure, a code of commerce, a penal code, a code of criminal procedure and a military code were approved in the year 1884. They are literal translations of the French codes with a few modifications to adapt them to local conditions. The penal codes are such close translations that several paragraphs relating to juries were retained, although the institution does not exist in Santo Domingo. It was tried in 1857, but discontinued in the following year. The Dominican Congress made but few changes in these important laws, which have therefore been more permanent than the constitution. The need for a further revision of the Dominican codes became urgent, however, and such revision has very recently been concluded by a commission which sat for that purpose; it is now being considered with a view to an early promulgation of the codes in amended form.
Santo Domingo, the first Spanish colony, thus has no Spanish laws. It is the only Spanish country which has adopted French legislation so completely, and which looks so largely to France for its jurisprudence.
The laws of Congress, and the decrees of the Executive relating to concessions, naturalization, pardons, and other matters, and, at present, the "executive orders" and decrees of the military government, are published in the Official Gazette, a government newspaper appearing almost daily. In addition to the calendar date, official papers are dated from the declaration of independence in 1844 and the restoration of the Republic in 1863, somewhat as follows: "Given in the National Palace of Santo Domingo, Capital of the Republic, on the 3rd day of March, 1916, the 73rd year of Independence and the 53rd of the Restoration." In Haiti it was formerly the custom, after a successful revolution, to count dates not only from the declaration of independence but also from the proclamation of the latest revolution, the latter period being denominated the "regeneration," thus: In the 40th year of independence and the 3rd of the regeneration. In the Dominican Republic Baez introduced this rule in his presidency of 1868-1873, during which period decrees were dated in the following manner: "On the 3rd day of March, 1871, the 28th year of Independence, the 8th of the Restoration, and the 3rd of the Regeneration." The revolution of December, 1873, ended this regeneration, and the official references thereto.
At the present time the judicial power is vested in a supreme court, sitting in the capital of the Republic, three courts of appeals, one in Santo Domingo, one in Santiago and one in La Vega; twelve courts of first instance, one in each province; and 70 alcaldias or justice of the peace courts, in the several communes and cantons. The supreme court is constituted by a presiding justice and six associate justices, who are elected by the Senate for terms of four years. It exercises original jurisdiction in cases against diplomatic functionaries and judges of courts of appeals, sits as a court of cassation in appeals from, the courts of appeals, finally decides admiralty cases and has certain other functions assigned to it by law.
The three courts of appeals each have a presiding justice and four associate justices, all elected by the Senate for four year terms. They exercise appellate jurisdiction over cases adjudged by courts of first instance and courts-martial, and original jurisdiction in admiralty cases and in the prosecution of certain judicial and administrative officials. Prior to 1908 there was one supreme court, with five members, and no court of appeals. When the income of the country grew, the new constitution provided that the supreme court have at least seven members, and that at least two courts of appeals be established, with their necessary judges and clerks. The system is now costly and topheavy.
The twelve district courts each have a judge of first instance and a judge of instruction, elected by the Senate for terms of four years. The judge of instruction is not, strictly speaking, a part of the court, his duty being to investigate the more serious criminal offenses, commit the offenders for the action of the court and report the result of his investigation to the prosecuting attorney. The courts of first instance have original jurisdiction in all criminal matters except the minor police offenses and in all civil matters except those expressly assigned to the justices of the peace. They hear appeals from the justices of the peace in civil and criminal cases.
The local justices of the peace are called "alcaldes." The alcalde, in Spanish times, was an officer exercising both administrative and judicial functions, the name being derived from the Arabic "al cadi," the judge, and whereas in Spain and most of the former Spanish colonies the alcalde has now only administrative duties and his office is equivalent to that of mayor, in Santo Domingo he now exercises solely judicial authority. (The office of "alcalde pedaneo," which may be roughly translated as deputy mayor, exists in Santo Domingo, however, this title being given to the municipal executive's agent in each section.) The alcalde's jurisdiction comprises the smaller police offenses and, in civil cases, matters involving less than $100, as well as certain cases, such as suits between innkeepers and guests, where the limit of his authority is raised to $300, and other cases, such as ejectment suits, where his jurisdiction attaches on account of the subject-matter. The alcaldes are appointed by the president of the Republic.
In general the system works smoothly. The alcaldes are often ignorant men, but even in the United States the country magistrates are not always founts of wisdom. The judges of first instance and district attorneys are almost without exception respected in the community, and the present judges of the supreme court and of the courts of appeals enjoy a good reputation. Not infrequently political considerations have given rise to poor appointments, such as occurred in Barahona some years ago when the judge-elect telegraphed an indignant protest to the capital to the effect that he was unacquainted even with the rudiments of the law. The administration had not taken the trouble to ascertain whether he was a lawyer, but knowing he sought a position, had given him the first one at hand. This was rather an oversight, as the law requires such appointees to be members of the bar. On another occasion the legal requisite was filled by first declaring the aspirant a lawyer and then designating him for the post. These cases are exceptions, however. The integrity of the judges is not often questioned, but the alcaldes do not enjoy so good a reputation.
At the present time there are also American provost courts which take cognizance of "offenses against the military government." This designation is broad enough to include anything the military authorities choose to include. Apart from a few cases of regrettable harshness these courts have done fairly well.
While the various constitutions have expressly declared the independence of the judicial power, the authority of the courts has heretofore been rather relative, and they have studiously avoided conflicts with the other branches of the government. There is no case on record where they have declared a law unconstitutional. The supreme court when driven into a corner in 1904 even declared that it had not the authority to make such a declaration. The constitution of 1908 modified the decision by expressly providing that the supreme court may decide as to the constitutionality of laws.
This decision of the supreme court made little impression in the country, due probably in part to the ease with which the various administrations have disregarded the constitution when it suited their convenience. The little value of the constitution between friends has constantly been demonstrated. Certain provisions have been systematically violated, even by the best of administrations. Principal among them is the provision that no one be arrested without a warrant setting forth the offense, unless caught in flagranti, and the provision that every person imprisoned be informed of the cause of his imprisonment and submitted to examination within forty-eight hours after arrest, and not be detained for a longer time than permitted by law. These provisions have been dead letters as far as political prisoners are concerned. When a person was suspected of being involved in a conspiracy against the government he was liable at any moment to be seized and conducted to prison, where he might be detained indefinitely, until the danger was over, or he was considered innocuous. The ancient fortress at the river mouth in Santo Domingo, known as La Torre del Homenaje, bears over its entrance the sign, "Political Prison," and rarely has it been without tenants, even when the country was at peace and the constitutional guarantees were supposed to be in force. On one occasion when I heard a Dominican lawyer lament that a friend of his had thus been incarcerated for several months without a hearing, I inquired why he did not apply to a court and invoke the constitutional provision. The reply was, "The judge who signed an order to set the prisoner free would probably join him in jail before many hours had passed."
Such ignoring of the written law was a relic of the days when the will of the military was the only law respected. Reminders of the old state of affairs continued to crop out, though the people and government were rapidly adopting other customs. An instance occurred in Sanchez during the presidency of Morales. A younger brother of the president was customs collector at that port and was accused by public rumor of irregularities in office. A customs employee having been discharged for spreading the rumor, called on the collector and invited him to a meeting outside; and the two adjourned to the bush, where shots were exchanged and young Morales was wounded in the leg. The aggressor was immediately seized by the general commanding the military forces in Sanchez and carried to the town cemetery, a grave was dug, and the general prepared to have him summarily shot. The town authorities interceded, but in vain, and the execution was about to take place when the ladies of the town succeeded in moving the commandant by their pleadings. The prisoner was remanded to the jail in Samana and was later tried by the court of first instance and acquitted. Much more recently the leader of the band that assassinated President Caceres was killed without trial.
Some of the surviving military leaders of the old school find difficulty in adjusting themselves to the new conditions. Among them was General Cirilo de los Santos, better known by his nickname "Guayubin" (the name of the town where he was born) who took an active part in the political disturbances of the Republic for many years. When I traveled through the country with Prof. Hollander on his financial investigation we were guests of this hero of a hundred revolutions, who was then Governor of La Vega. In the course of conversation Prof. Hollander expressed gratification at the cessation of the custom of shooting political prisoners. The governor was at that time engaged in the persecution of one Perico Lasala, a perpetual revolutionist who was infesting the nearby hills and who has since done his country a favor by being killed in an incursion on the coast. The idea of not shooting this notorious character as soon as he was apprehended seemed grotesque to Guayubin—and perhaps not without reason. He cried, "If you were in my place and caught Perico Lasala, wouldn't you shoot even him?" "Why, no," was the answer. Guayubin's face fell and he became thoughtful. For the rest of the day he was strangely silent and he continued so on the morrow, when he accompanied us for several miles out of town. When bidding goodbye, he broke out: "I wish to ask your advice. If I should catch Perico Lasala, what would you advise me to do with him?" Dr. Hollander asked: "What do you do with persons who steal or commit similar violations of the law?" "We put them in jail." "Why, then, put Perico Lasala in jail." A look of inexpressible relief came over the face of the old warrior. "Of course!" he said, "I never thought of that."
Not long after this incident General Guayubin met a political opponent against whom he harbored resentment. He immediately drew his revolver and began to shoot, and the object of his wrath escaped only by dexterous sprinting. At a session of Congress there was some criticism of his action and Guayubin resigned his office in disgust. The death of this fighter was as stern as his life. He attended a christening party at a house where there was a forgotten powder-cask; a spark fell into the powder and in the ensuing explosion Guayubin's eyesight was destroyed. Grimly refusing to take food or drink, he pined away.
Prior to the American occupation, the Dominican penal establishments were as a rule in very bad condition. There is no penitentiary and portions of the forts or government houses are used as jails. The prisoners were herded together with little thought of cleanliness. The stench in some of the jail yards was at times almost unbearable. In justice it should be stated that the Dominican authorities frequently called the attention of their Congress to this condition of affairs. The prisons at Santo Domingo City and Santiago were exceptions to the rule; they were improved even to the extent of being endowed with a prison school.
The political prisoners were generally given better accommodations, if there were any at hand, and had the privilege of securing their meals from the outside instead of being limited to the scant and repugnant prison food. During revolutions, however, when the prisons were overcrowded, the political prisoners were kept in irons and supervision was rigid. According to law the functionaries of each court of first instance were supposed to visit and examine the jails once a month, but as the date of their visit was known beforehand the inspection was little more than perfunctory. Not very long ago it was whispered in the Cibao that a judge in inspecting a jail accidentally passed through a door to a room he was evidently not expected to enter, and there to his own embarrassment and that of the warden found a score of prisoners whose names were not on the prison rolls.
The more serious offenders were kept in irons. The Dominican authorities, realizing that they had no reason to be proud of their prisons, were loath to permit foreigners to visit the jails. When I called at the government building at Sanchez on one occasion, however, the commandant was absent and an indiscreet sergeant offered to show me the two rooms used for prison purposes. The building was a wooden one and one of the rooms, though heavily barred, did not seem unfitted except in case of overcrowding, which I was told sometimes occurred. The other room was extremely repulsive. It was dark and a foul odor rising from a hole in the wooden floor demonstrated the truth of the guide's remark that there was no outhouse for the use of the prisoners. Along one side of this room lay two long square-cut beams, one on the other, scalloped out so as to form a number of round holes along their juncture. It was evident they were used as stocks and my guide stated that he had seen a whole row of men sitting along the log with their feet thus confined. One or two of the holes were a little larger and it was explained that they were for the purpose of confining not the feet but the neck of the delinquent, and that this punishment was much worse, producing especial pain in the case of short-necked persons. The severest pain was produced, so the guide stated, when the delinquent was seated on the beam and his feet placed crosswise through the holes: he could bear the agony of this position for only a short time.
The American authorities have made great improvements in the prisons and prison discipline. The jails are now so clean that they are almost show places.
The revolutionary disturbances have seriously interfered with the proper execution of the sentences of the courts. It was a usual procedure for revolutionary forces, upon entering a town, to free the prisoners—either as a slap at the government or in order thereby to augment their own strength. In Puerto Plata, a few years ago, a merchant was convicted of fraudulent bankruptcy and sentenced to three years in jail; soon afterwards a revolutionary force took possession of the town and freed the prisoners; and a few hours later the townspeople were amused to see the lawyer who had been instrumental in securing the conviction himself led to prison at the instigation of the culprit.
In March, 1903, when the political prisoners in the Santo Domingo prison broke out, they released the convicts, some of whom retained their gyves during the fighting which followed, until the revolution was successful several days later.
The undeveloped state of the country has offered difficulties to the apprehension of criminals, and the proper enforcement of the law. Could a criminal but reach the mountains of the interior, which are almost entirely uninhabited, he would be safe from pursuit and might either wait to join the next uprising or proceed to a different part of the country, where he was unknown and where, owing to the difficulty of intercourse, detection would be unlikely. Instances have occurred more than once where an escaped malefactor has become a "general" of other outlaws and by threatening to raise an insurrection has induced the government to pardon him and his associates.
In several regions there were up to the time of the American occupation local caciques who were almost absolute monarchs in their district. They and their followers considered themselves above the law and their power and influence were such that the government in the capital preferred to let them alone so long as they kept within bounds. Such gentlemen can hardly be expected to favor the American administration for they have been made to understand that their rights and remedies are no more than those of other citizens.
In view of such conditions so favorable to wrongdoers, the low criminal record of Santo Domingo is all the more remarkable and speaks highly for the character of the population. Crimes evincing malice and a depraved disposition are exceedingly rare. The Dominican boasts that it is possible to travel without fear from one end of the Republic to the other, though unarmed and carrying large sums of money. The few attacks on travelers which are on record have generally been due to revenge or some other personal motive. There is petty thievery, but no more than anywhere else. A friend of mine used to remark that he had never seen so many chickens in a community where there were so many negroes. No criminal is so greatly despised as a thief, and to accuse a person of being "mean enough to steal a pig" is a mortal insult. A distinction is made, however, between public honesty and private honesty, and the impression has been only too general that stealing from the state is not stealing.
The most common serious offenses are homicide and assaults committed in sudden quarrel or due to jealousy. Not a little mischief was caused by the unfortunate habit of going armed.
The attractions of the fair sex give rise not only to crimes of jealous passion, but also to other missteps, such as seduction and similar offenses. The average of these is not greater, however, than in other southern countries.