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.

Santo Domingo: A Country with a Future · 第 20 / 23 章