Santo Domingo: A Country with a Future

by Otto Schoenrich

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.