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.