1 AHR Forum The Irony of Legal Pluralism in U.S. Occupations ALAN MCPHERSON ON THE EVENING OF OCTOBER 17, 1925, U.S. Navy ensign Ralph Carroll ran down the streets of Port-au-Prince. Inebriated and out of uniform, he was chasing a Haitian man who was helping two women escape Carroll s apparent amorous overtures. Carroll caught up with them, berating them in English, and beat the man with his fists while the Haitians pleaded in Kreyol that they did not understand him. A twentyone-year-old carpenter, Azard Fecui, happened upon the group with two friends. Scandalized that his fellow Haitian had failed to put up a fight against the white sailor, Fecui stabbed Carroll. The thirteen-inch cut, two inches deep in some places, sliced Carroll from his underarm to his abdomen and punctured his brachial artery. Blood gushed everywhere. The Haitians fled the scene. Carroll stumbled, then fell thirty-seven yards down a cliff. He was likely dead before he hit bottom. 1 Clashes between U.S. forces and occupied peoples occurred often in the first third of the twentieth century, when Washington repeatedly ordered its military to nations of the circum-caribbean. After the War of 1898 and the opening of the Panama Canal in 1914, U.S. policymakers were preoccupied with protecting sea lanes, expanding markets, providing loans, and generally making the Caribbean, Central America, and Mexico politically stable. The landing of U.S. troops thus became common, as well as a common source of friction. Yet the Fecui case stands out from most confrontations not only for its fatal outcome but also for its legal dénouement. It appeared to U.S. observers as clear-cut premeditated murder, or at least manslaughter: Fecui stabbed an unarmed man in front of five witnesses and, after failing to shift the blame onto a friend, fully confessed. 2 But the proceedings became a cause célèbre for the opposition to the U.S. occupation. Likely because Carroll was on shore leave Thanks to Ariel Ahram and Eric Heinze for comments on a draft of this article. Thanks also to Jorge Domínguez and Harvard University s David Rockefeller Center for Latin American Studies, and to the Coloquio Internacional Relaciones de los Estados Unidos de Norteamérica con el Gran Caribe in Santo Domingo, for inviting me to present its findings and for commenting on them. 1 M. S. Silverthorn, Chief of Police, memo to Acting Chief of the Gendarmerie, Port-au-Prince, December 12, 1925, folder 1925 Azard Fecui Trial, box 1, Correspondence of the Gendarmerie d Haiti 1923, 1925, Records of the United States Marine Corps, Record Group [hereafter RG] 127, National Archives Building, Washington, D.C. [hereafter NARA I]; Silverthorn, memo to Acting Chief of the Gendarmerie, Port-au-Prince, December 14, 1925, ibid.; Judge Emmanuel Beauvoir to the Commissaire du Gouvernement, Port-au-Prince, October 31, 1925, ibid.; C. B. Matthews, Acting Chief of the Gendarmerie, memo to American High Commissioner, Port-au-Prince, December 16, 1925, ibid. 2 Silverthorn memo to Chief of the Gendarmerie, December 14, 1925; Matthews memo to American High Commissioner, December 16,
2 1150 Alan McPherson and not part of the occupation force, U.S. authorities allowed the case to go through a Haitian court rather than their own military provost court. A crowd of four hundred attended the thirteen-hour trial on November 30, applauding and hissing in favor of the accused. Fecui s lawyers claimed falsely that Carroll was already wounded when he was stabbed. The French minister described the closing arguments as a veritable indictment of the American occupation in Haiti, recalling the crimes of which the Americans were guilty and the brutalities of the Marines. According to the defense, the murder was nothing more than the result of provocations on the part of the occupier and the hatred earned by Americans through their hostile attitude toward the people. Not once did the president of the court call the defense to order. 3 The jury, at least five members of which were active in the nationalist Union Patriotique, and which, against court regulations, deliberated in the open, pronounced Fecui not guilty after only twenty-one minutes. Assisted by three jurors who left their bench, the cheering crowd hoisted Fecui onto their shoulders and carried him home. 4 Such courtroom scenes occurred again and again during U.S. occupations in the circum-caribbean, illustrating an important irony: Washington created a two-tiered system of justice so as to minimize conflict, but that very segregation led to more, not fewer, clashes. The design of segregated occupational judicial systems led naturally to tensions, which U.S. officials failed to appreciate as they made momentous decisions at the outset of occupations. The United States began its occupations in Nicaragua ( ), Haiti ( ), and the Dominican Republic ( ) without taking over the judiciary. In Nicaragua, the U.S. did not set up provost courts because it had intervened at the request of the Nicaraguan government. In Haiti, the Marines took over more fully through an imposed treaty, but the arrangement did not include judicial oversight. In the Dominican Republic, the Marines themselves ran the government, but their declaration of military government in November 1916 explicitly excluded the courts. In these last two countries, the State Department did argue for a takeover of the courts, but President Woodrow Wilson, nominally an anti-imperialist, initially disagreed. 5 When he acquiesced to a military government for the Dominican occupation six months after the landing, Wilson specifically struck out a sentence in a State Department Navy proposal authorizing the removal of judges, though he added that it might become necessary to resort to such extreme measures. Only in October 1917, more than a year after the landing, did 3 My translation. Unless otherwise noted, translations are by the organization that produced the document. French Minister Velten to Minister of Foreign Affairs, Port-au-Prince, December 10, 1925, dossier 6, Haiti, Amérique , Correspondance Politique et Commerciale , Archives Diplomatiques, Ministre des Affaires Étrangères, Paris. 4 C. B. Matthews, Acting Chief of the Gendarmerie, Confidential Memorandum for the American High Commissioner, Port-au-Prince, December 2, 1925, folder 1925 Azard Fecui Trial, box 1, Correspondence of the Gendarmerie d Haiti 1923, 1925, RG 127, NARA I; M. S. Silverthorn, Chief of Police, memo to Chief of the Gendarmerie, Port-au-Prince, December 1, 1925, ibid. 5 Morgan, Division of Latin-American Affairs, memo to Frank Kellogg, Secretary of State, Washington, D.C., May 5, 1927, /2382, Central Decimal Files Relating to Internal Affairs of Haiti, [hereafter Haiti ], General Records of the Department of State, RG 59, National Archives, College Park, Md. [hereafter NARA II]. Wilson did so by virtue of the president s constitutional executive Power, which includes the power to wage war. See Gary Lawson and Guy Seidman, The Constitution of Empire: Territorial Expansion and American Legal History (New Haven, Conn., 2004), 151. That Congress never declared war in any of these three occupations seems not to have mattered.
3 The Irony of Legal Pluralism in U.S. Occupations 1151 he agree to U.S. control of the courts. 6 Native courts thus survived in each occupation and became a vehicle by which the occupied, through the distortion of the justice system, could produce what they considered the more transcendent justice of ending occupation. 7 Juridical protests during U.S. imperial episodes remain largely unexamined. There has not been a single book or even a scholarly article on the subject. 8 Some legal histories of Haiti, Nicaragua, and the Dominican Republic mention legislative changes during occupations but say nothing about courtroom resistance. 9 And the many outstanding historians such as Mary Renda who study resistance and other aspects of U.S. occupations describe in detail the oppressive nature of U.S. institutions, including military tribunals, but usually fail even to note the response of native courts Cited in Whitney T. Perkins, Constraint of Empire: The United States and Caribbean Interventions (Westport, Conn., 1981), 60, The term native courts, current at the time of the occupations, will be used throughout this article to describe courts that remained in the custody of occupied nations and that were almost entirely staffed by occupied peoples. The term might seem anachronistic, but it seems more appropriate than occupied or colonial courts, which suggests their takeover; indigenous courts, which suggests ethnicity; customary courts, which would deny their European codes; local or national courts, which would deny, respectively, their national or local counterparts; or naming courts by country, which is unwieldy. The British and Dutch empires used the term Native Law and Native Courts, and so have scholars: B. O. Nwabueze, Judicialism in Commonwealth Africa: The Role of the Courts in Government (New York, 1977), 275; Kristin Mann and Richard Roberts, Law in Colonial Africa, in Mann and Roberts, eds., Law in Colonial Africa (Portsmouth, N.H., 1991), 3 58, here 38; Martin Chanock, The South African Native Administration Act of 1927: Reflections on a Pathological Case of Legal Pluralism, in Oliver Mendelsohn and Upendra Baxi, eds., The Rights of Subordinated Peoples (Delhi, 1994), , here 311; and Richard Rathbone, Native Courts, Local Courts, Chieftaincy and the CPP in Ghana in the 1950s, Journal of African Cultural Studies 13, no. 1 (June 2000): One of the few instances that several mention involved Cuban witnesses obstructing prosecutions and Cuban juries acquitting defendants in a systematic fashion, against either Spanish or U.S. rule. Such accusations arise from Military Governor Leonard Wood s report. See James H. Hitchman, Leonard Wood and Cuban Independence, (The Hague, 1971), On Haiti, see Ferdinand Delatour, Les 150 ans du régime du code civil dans le contexte social haïtien, (Port-au-Prince, ca. 1977); and Jacquelin Montalvo-Despeignes, Le droit informel haïtien: Approche socio-ethnographique (Paris, 1976). On Nicaragua, see José H. Montalván, Valores nicaragüenses para la historia del derecho (Managua, 1955); and Ramón Fernando Pozo Urbina, Apuntes de historia del estado y el derecho (Managua, 1999). On the Dominican Republic, see Gustavo Adolfo Mejía Ricart, Historia general del derecho e historia del derecho dominicano, 2 vols. (Santiago, ); Carlos Gatón Richiez, La jurisprudencia en la República Dominicana: Doctrina y legislación, (1943; repr., Santo Domingo, 1989); and Wenceslao Vega B., Historia del derecho dominicano, 4th ed. (Santo Domingo, 2004). 10 Mary A. Renda, Taking Haiti: Military Occupation and the Culture of U.S. Imperialism, (Chapel Hill, N.C., 2001). See also Bruce J. Calder, The Impact of Intervention: The Dominican Republic during the U.S. Occupation of (Austin, Tex., 1984); Hans Schmidt, The United States Occupation of Haiti, (1971; repr., New Brunswick, N.J., 1995); Harvey R. Neptune, Caliban and the Yankees: Trinidad and the United States Occupation (Chapel Hill, N.C., 2007); Thomas F. O Brien, The Revolutionary Mission: American Enterprise in Latin America, (Cambridge, 1996); Michiel Baud, The Struggle for Autonomy: Peasant Resistance to Capitalism in the Dominican Republic, , in Malcolm Cross and Gad Heuman, eds., Labour in the Caribbean: From Emancipation to Independence (London, 1988), ; Catherine C. LeGrand, Informal Resistance on a Dominican Sugar Plantation during the Trujillo Dictatorship, Hispanic American Historical Review 75, no. 4 (November 1995): ; Pedro L. San Miguel, Peasant Resistance to State Demands in the Cibao during the U.S. Occupation, trans. Phillip Berryman, Latin American Perspectives 86, no. 3 (Summer 1995): 41 62; and Robert Debs Heinl, Jr., and Nancy Gordon Heinl, Written in Blood: The Story of the Haitian People, (Boston, 1978). An entire journal devoted to resistance to U.S. occupations in Cuba, China, and the Philippines failed to note a single incidence of resistance in the courts: American Empire, , Special Issue, Pacific Historical Review 48, no. 4 (November 1979). See the overview by
4 1152 Alan McPherson One reason may be the challenging nature of such research. Historians have to comb through archival haystacks about military or political affairs to find judiciary needles. 11 And because there are no centralized records from those periods in these countries, it remains impossible to do a demographic analysis of defendants. The voices of the occupied during trials are also difficult to unearth. Circum-Caribbean newspapers, censored or not, rarely reported on court cases, and while U.S. records often quote Haitians, Dominicans, and Nicaraguans, they cover only some cases, precisely because it was not the mission of the occupiers to oversee native courts. In addition, U.S. sources may leave out information that is unflattering to the occupation or might be otherwise biased. 12 Adding to the challenge is that most contemporary published material on U.S. efforts to manage justice systems was written by former officers, diplomats, and scholars, who proved paternalistic and neglectful and spread misinformation. One lieutenant colonel looked back at the U.S. provost courts in the Dominican Republic to conclude that, while some mistakes were made, there had been no great miscarriage of justice. After all, he explained, Dominicans were incorrigible, necessitating the use of strong measures. 13 Ambassador Willard Beaulac claimed incorrectly in his memoirs that the United States never intervened in Haitian courts. 14 The failure of socio-legal history to address native courts has led many to conclude that U.S. occupations were, as Hans Schmidt wrote of Haiti, absolutely authoritarian and ruled by unchallenged military dictation. 15 That, however, is a Michael H. Hunt, Resistance and Collaboration in the American Empire, , The only sustained looks at court resistance are D Arcy Morgan Brissman, Interpreting American Hegemony: Civil Military Relations during the United States Marine Corps Occupation of Haiti, (Ph.D. diss., Duke University, 2001), which nevertheless devotes limited space to it and does so only in Haiti; and Marvin Chochotte, Independent Courts under Occupation: U.S. Empire and Judicial Opposition in Haiti (paper presented at the 44th Annual Conference of the Association of Caribbean Historians, Curaçao, May 14, 2012), which offers insight but with limited research and analysis. 11 I have done so as part of a larger project on the resistance to U.S. military occupations in these three countries. The notes below demonstrate that no single archive, and no single collection within an archive, is a dominant repository of court records. 12 There is a single sentence on legal reforms in Stanley Karnow, In Our Image: America s Empire in the Philippines (New York, 1989), 197; one on U.S. adoption of Spanish codes in Paul A. Kramer, The Blood of Government: Race, Empire, the United States, and the Philippines (Chapel Hill, N.C., 2006), 209; and two sentences on reforms to the penal code in John W. Dower, Embracing Defeat: Japan in the Wake of World War II (New York, 1999), Lt. Col. Charles J. Miller, USMC, Diplomatic Spurs: Our Experiences in Santo Domingo, 3 pts., pt. 3, Marine Corps Gazette 19, no. 3 (August 1935): 35 55, here Willard L. Beaulac, Career Ambassador (New York, 1951), 102. For comments by military personnel, see Col. Rufus H. Lane, USMC, Civil Government in Santo Domingo in the Early Days of the Military Occupation, Marine Corps Gazette 7, no. 2 (June 1922): ; and Commander C. C. Baugham, USN, United States Occupation of the Dominican Republic, U.S. Naval Institute Proceedings 51, no. 12 (December 1925): ; by a diplomat, see Dana G. Munro, The United States and the Caribbean Republics, (Princeton, N.J., 1974); by scholars, see Philip Marshall Brown, The Armed Occupation of Santo Domingo, American Journal of International Law 11, no. 2 (April 1917): ; Otto Schoenrich, The Present American Intervention in Santo Domingo and Haiti, Journal of International Relations 11, no. 1 (July 1920): 45 62; Carl Kelsey, The American Intervention in Haiti and the Dominican Republic, Annals of the Academy of Political and Social Science, March 1922, ; Paul H. Douglas, The American Occupation of Haiti I, Political Science Quarterly 42, no. 2 (June 1927): ; Douglas, The American Occupation of Haiti II, Political Science Quarterly 42, no. 3 (September 1927): ; and Raymond Leslie Buell, Reconstruction in Nicaragua, Foreign Policy Reports 6, no. 18 (November 12, 1930): Schmidt, The United States Occupation of Haiti, 17. Thanks to Marvin Chochotte for this insight.
5 The Irony of Legal Pluralism in U.S. Occupations 1153 misinterpretation. Native courts were in fact a site of contestation, which the occupied used determinedly and shrewdly to fight for national and local autonomy. Studying courts enriches our knowledge of resistance beyond the standard narrative of the violent rural insurrections of the cacos in Haiti, the gavilleros in the Dominican Republic, and the sandinistas in Nicaragua. 16 Courts need to be repositioned, viewed not as an outlier in the universe of resistance but as playing a more central role. D Arcy Brissman has correctly identified courts as the locus of... resistance... where decisions frequently expressed the Haitian people s judgment of the occupation. 17 There was a logic to such resistance: occupations pushed most of the elite out of government and then did not replace them, replaced them with U.S. administrators, or hired more pliant occupied individuals. Newspapers were the obvious fallback for anti-occupation voices, for instance those of the Haitian Union Patriotique, but they were often censored and editors jailed. Courts, in contrast, operated more independently of occupations. Such conclusions drawn from looking at native courts during U.S. occupations also allow us to delve deeper into the imperial turn of the last few decades in U.S. history and to connect that history to global patterns of empire, in this case through the subdiscipline of legal pluralism studies. 18 Legal pluralism refers to efforts by colonial powers to establish dual systems of law: generally speaking, one system was based on the empire s codes and was primarily for colonists and sometimes their native protégés, who enjoyed extraterritoriality; another system, typically separate, was based on Hindu, Muslim, Latin American, or other customary or traditional law, and was usually encouraged by colonizers because it handled the majority of issues between colonized peoples such as marriage and inheritance. Most authors on the subject remain content to explain the establishment, types, and evolution of legal pluralism. 19 Scholars have written on Spanish law in the Americas and on clashes between U.S. and other imperial constitutions in the Americas, but there has been 16 Gilbert M. Joseph warns against too much emphasis on social bandits after the fashion of Eric Hobsbawm. See Joseph, On the Trail of Latin American Bandits: A Reexamination of Peasant Resistance, Latin American Research Review 25, no. 3 (1990): 7 53, here Brissman, Interpreting American Hegemony, Exemplars of this newfound interest in describing the imperial aspects of U.S. expansion include Amy Kaplan and Donald E. Pease, eds., Cultures of United States Imperialism (Durham, N.C., 1993); Ann Laura Stoler, ed., Haunted by Empire: Geographies of Intimacy in North American History (Durham, N.C., 2006); and Alfred W. McCoy and Francisco A. Scarano, eds., Colonial Crucible: Empire in the Making of the Modern American State (Madison, Wis., 2009). 19 This includes much of the work of a historical nature published in the Journal of Legal Pluralism. The best global overview, incorporating social history, is Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, (Cambridge, 2002). See also Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (London, 1966); Will Adams, Capital Punishment in Imperial and Soviet Criminal Law, American Journal of Comparative Law 18, no. 3 (Summer 1970): ; M. B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (London, 1975); Anil Chandra Banerjee, English Law in India (New Delhi, 1984); Mann and Roberts, Law in Colonial Africa; N. Shyam Bhat, Judiciary and Police in Early Colonial South Kanara, (New Delhi, 2001); Richard S. Horowitz, International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century, Journal of World History 15, no. 4 (December 2004): ; Barry S. Godfrey and Graeme Dunstall, eds., Crime and Empire, : Criminal Justice in Local and Global Context (Portland, Ore., 2005); Jane Burbank, An Imperial Rights Regime: Law and Citizenship in the Russian Empire, Kritika: Explorations in Russian and Eurasian History 7, no. 3 (Summer 2006): ; Miranda Forsyth, A Typology of Relationships between State and Non-State Justice Systems, Journal of Legal Pluralism, no. 56 (2007): ; and Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, (Cambridge, 2010).
6 1154 Alan McPherson nothing on U.S. judicial systems during occupations. 20 There is work on the tensions inherent in establishing legal pluralism, and there are pathbreaking social and cultural histories of colonized subjects using courts to claim rights or affirm their human decency. 21 Yet there exist few studies of the politicization of courts, and even fewer of direct confrontations meant to end the colonial state. 22 Perhaps this glimpse at the history of resistance through courts will mark the U.S. empire as exceptional; hopefully it will spur historians of other empires to embark on further investigations of the discontent roused by legal pluralism. CHRISTINA BURNETT HAS POWERFULLY argued that the legal history of U.S. empire is transnational by nature and can be understood only within the context of other American legal imperialisms whether Spanish, French, Portuguese, or British. 23 It 20 See Louis George Kahle, The Spanish Colonial Judiciary, Southwestern Social Science Quarterly 32, no. 1 (June 1951): 26 37; Lyle N. McAlister, Spain and Portugal in the New World, (Minneapolis, 1984), 25; Brian P. Owensby, Empire of Law and Indian Justice in Colonial Mexico (Stanford, Calif., 2008); for clashes, see Christina Duffy Burnett, Contingent Constitutions: Empire and Law in the Americas (Ph.D. diss., Princeton University, 2010). 21 Examples of the first include Diane Kirkby and Catharine Coleborne, eds., Law, History, Colonialism: The Reach of Empire (New York, 2001); and Sulistyowati Irianto, Competition and Interaction between State Law and Customary Law in the Court Room: A Study of Inheritance Cases in Indonesia, Journal of Legal Pluralism, no. 49 (2004): For the second, see Steve J. Stern, ed., Resistance, Rebellion, and Consciousness in the Andean Peasant World, 18th to 20th Centuries (Madison, Wis., 1987); George A. Collier, The Impact of Second Republic Labor Reforms in Spain, in June Starr and Jane F. Collier, eds., History and Power in the Study of Law: New Directions in Legal Anthropology (Ithaca, N.Y., 1989), ; Jeremy Boissevain and Hanneke Grotenbreg, Entrepreneurs and the Law: Self-Employed Surinamese in Amsterdam, ibid., ; Carol J. Greenhouse, Interpreting American Litigiousness, ibid., ; W. J. Mommsen, Introduction, in W. J. Mommsen and J. A. de Moor, eds., European Expansion and Law: The Encounter of European and Indigenous Law in 19th- and 20th- Century Africa and Asia (New York, 1992), 1 14; James Crawford, Legal Pluralism and the Indigenous Peoples of Australia, in Mendelsohn and Baxi, The Rights of Subordinated Peoples, ; Chanock, The South African Native Administration Act of 1927 ; Janaki Nair, Women and Law in Colonial India: A Social History (New Delhi, 1996); Iris Agmon, Family and Court: Legal Culture and Modernity in Late Ottoman Palestine (Syracuse, N.Y., 2006); Peter Robb, Peasants, Political Economy, and Law (New York, 2007); Owensby, Empire of Law and Indian Justice in Colonial Mexico; and Marcela Echeverri, Enraged to the Limit of Despair : Infanticide and Slave Judicial Strategies in Barbacoas, , Slavery & Abolition 30, no. 3 (September 2009): One partial example is Daniel Nina and Pamela Jane Schwikkard, The Soft Vengeance of the People: Popular Justice, Community Justice and Legal Pluralism in South Africa, Journal of Legal Pluralism, no. 36 (1996): I say partial because the resistance here was against racist segregation in a republic, not a formal colonial state. A broad look at books on decolonization found no mention of nationalist movements using the courts to hasten the departure of colonial powers. Among these are John Wansbrough, The Decolonization of North African History, Journal of African History 9, no. 4 (1968): ; I. William Zartman, Europe and Africa: Decolonization or Dependency? Foreign Affairs 54, no. 2 (January 1976): ; John Flint, Planned Decolonization and Its Failure in British Africa, African Affairs 82, no. 328 (July 1983): ; S. K. N. Blay, Self-Determination versus Territorial Integrity in Decolonization, NYU Journal of International Law & Politics 18 ( ): ; David Strang, From Dependency to Sovereignty: An Event History Analysis of Decolonization, , American Sociological Review 55, no. 6 (December 1990): ; Strang, Global Patterns of Decolonization, , International Studies Quarterly 35, no. 4 (December 1991): ; Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton, N.J., 1993); Norrie MacQueen, The Decolonization of Portuguese Africa: Metropolitan Revolution and the Dissolution of Empire (New York, 1997); and W. David McIntyre, British Decolonization, : When, Why, and How Did the British Empire Fall? (New York, 1998). 23 Burnett, Contingent Constitutions, 8. Burnett, however, focuses exclusively on constitutional clashes, not legislative or lower court cases.
7 The Irony of Legal Pluralism in U.S. Occupations 1155 is imperative, therefore, to appreciate how U.S. occupations brought into contention differing legal systems in the Americas. One of those systems was the U.S.-run provost courts, operated uniquely by U.S. military personnel, which the occupiers misused and abused. In Haiti and the Dominican Republic, provost courts regularly exceeded their authority as they reflected and ratified the greater abuses of the occupation. Statistics do not exist for Haiti, but during the relatively short Dominican occupation, provost courts tried more than 3,500 defendants. 24 Although Washington did not install a provost court in Nicaragua, it exerted pressure on the regular courts and the police courts to try insurgents, resulting in similar resentment from Nicaraguans. 25 Rather than improve or even segregate the process of justice, provost courts distorted it and encroached upon native courts. Provost judges and marshals were poorly prepared. Most were captains or lieutenants who spoke no Spanish, French, or Kreyol and had no legal training. 26 Others were noncommissioned officers who were elevated to officer status in the constabulary despite their lack of administrative experience. 27 Moreover, provost courts usually consisted of a single person. In Haiti, U.S. officers attached to the constabulary, called the Gendarmerie (later the Garde), not only advised mayors, county judges, court officials, tax collectors [and] surveyors but also signed their paychecks. 28 In 1918, Adolf Berle, a young lawyer who would go on to advise President Franklin Roosevelt and later shape Latin American policy, reported from the Dominican Republic that the feeling toward the American Occupation varies sharply with the tact and skill used by the officer exercising Provost jurisdiction in the district. Such a man may make himself very much liked or very much disliked, and he is the visible symbol of the whole American occupation. 29 As a result of their enormous discretion, provost and constabulary officers regularly abused their power. When their own were accused, Marines typically failed to investigate unless the evidence brought to them was overwhelming, and even then they usually rendered acquittals. They lied for each other and gave fellow Marines light sentences. 30 When prosecuting occupied peoples, they overstepped their traditional military-only jurisdiction and reached beyond criminal violence to suppress 24 Miller, Diplomatic Spurs, William Kamman, A Search for Stability: United States Diplomacy toward Nicaragua, (Notre Dame, Ind., 1968), 161. According to historian Keith Bickel, in Nicaragua the Marines interfered with the judicial system in a way not seen since the Army s Philippine experience ; Bickel, Mars Learning: The Marine Corps Development of Small Wars Doctrine, (Boulder, Colo., 2001), 161, Bickel, Mars Learning, Winthrop R. Scott, American Consul in Cap-Haïtien, unaddressed memo, May 14, 1926, register 13900, C-10-L, Naval Attaché Reports, Records of the Office of the Chief of Naval Operations, RG 38, NARA I. 28 Gendarmerie d Haiti, A Brief Sketch of the Gendarmerie d Haiti, Port au Prince, March 25, 1921, folder Gendarmerie d Haiti (History) 33.11, box 12, Records of the Gendarmerie d Haiti, , RG 127, NARA I. 29 Adolf Berle to Admiral H. S. Knapp, Santo Domingo, May 31, 1918, legajo 20, , fondo Gobierno Militar, Archivo General de la Nación, Santo Domingo, Dominican Republic [hereafter AGN- DR]. 30 Sumner Welles, Naboth s Vineyard: The Dominican Republic, , 2 vols. (Mamaroneck, N.Y., 1966), 2: 806.
8 1156 Alan McPherson political dissent. 31 Some provost judges fined defendants for laws that were not published, while others suspended habeas corpus. 32 They refused counsel to accused occupied peoples and gave them excessive sentences. 33 One civilian who was caught with a military ration worth 37 cents was confined for a month. Six other men got three months and an $18 fine each for harboring a ham valued at $ Finally, the occupiers courts and constabularies threatened the jurisdiction of native courts. In 1920, Dominicans complained that U.S.-run courts sometimes try to punish those who have been acquitted by the native courts, and vice versa. 35 The Dominican occupation also took over ancillary judicial functions, such as claims commissions and land tribunals. 36 In 1929, the Haitian minister of justice called for an arrest warrant against Edouard Goutier, a clerk in the receiver general s office, who was suspected of extortion of immigrants. Since the occupation controlled the office, it ordered the Garde to refuse to execute the warrant. If this should be the case, complained a Haitian newspaper, Goutier, with no judge to judge him, will commit the most abominable crimes with impunity. 37 Nationalist Pierre Hudicourt summarized the usurping of the judicial process as anarchy, simply anarchy. 38 Clashing with this imperial judicial system were the native courts, which, much like precolonial systems in Africa and Asia, reflected rural decentralization and often ethnically defined sensibilities. 39 The difference in the circum-caribbean, of course, was that the U.S. occupiers marched into systems that were postcolonial and therefore already legally plural. Spanish and French imperialism had given courts a centralized structure and Western codes, but after independence, judiciaries were largely in the hands of local political authorities. 40 Especially in Haiti, courts were apparatuses of self-protection for the landed, the educated, and the politically connected. One Haitian described a situation of widespread bribery in which each judge has a lawyer who acts as his banker,... where justice is a merchandise, sold to the highest bidder,... where... the richer ones, consequently the stronger ones will... overpower the weaker, i.e., the poorer ones. 41 Courts in Haiti, Nicaragua, and the Dominican Republic were also based on Napoleonic codes, wedded to a presumption 31 Baugham, United States Occupation of the Dominican Republic, Schoenrich, The Present American Intervention in Santo Domingo and Haiti, 59, Cited in Calder, The Impact of Intervention, Brigade Law Officer, memo to Commanding General [Russell?], Port-au-Prince, November 24, 1925, /2172, Haiti , RG 59, NARA II. 35 Harry Alverson Franck, Roaming through the West Indies (New York, 1920), Vega, Historia del derecho dominicano, My translation. Alphonse Henríquez, letter to the editor, Un état dans un état, Le petit impartial, April 4, 1929, Hearings before a Select Committee on Haiti and Santo Domingo, 67th Cong., 1st and 2nd sess., 2 vols. (Washington, D.C., 1922), 2: Mann and Roberts, Law in Colonial Africa, 3 4; Benton, Law and Colonial Cultures, 134. John L. and Jean Comaroff, eds., Civil Society and the Political Imagination in Africa (Chicago, 2000), describe how the attempt to impose European institutions and create an African civil society led to a world of difference, discrimination, and doubling: a world in which national, rights-bearing citizenship and primordial, ethnicized subjection modernist inventions both were made to exist side by side (23). 40 See Benton, Law and Colonial Cultures, Cited in Colonel John H. Russell, Memorandum on the Judicial System of Haiti, March 16, 1920, folder Misc. Corrs. (27 Dec 17 1 Jun 18), box 3, Records of the First Provisional Brigade in Haiti, , RG 127, NARA I.
9 The Irony of Legal Pluralism in U.S. Occupations 1157 of guilt that challenged the presumed U.S. penchant for individual rights. 42 For instance, a Marine explained how the presumption of guilt enabled a judge requiring labor on his estate to treat lightly some fabricated crime on condition that the victim work on the estate in which the judge was interested. 43 U.S. officials viewed native courts not only through a Western imperial gaze but also through the specific frustrated glare of the military. Marines considered themselves exemplars of order and, despite their own provost courts, of truth. They expressed shock at premodern values and believed they could change cultures through technocratic coercion. Few saw contradictions between their own use of torture and authoritarianism and the less than democratic behavior of native courts. None commented on possible racism and corruption in U.S. courts, especially in the South or during Prohibition. Marines regularly reported, instead, on the corruption of native courts, starting with the lawyers, the worst element in Haiti today, according to Brigade Commander John Russell. 44 Dominican lawyers infuriated the Marines with their tradition of refusing cases in which another lawyer was a plaintiff or defendant meaning that all lawyers were virtually above the law. 45 Marine occupiers had seen problems in legal pluralism before, in the Philippines and especially in Cuba. But both of those nations had an immediate colonial past in which Spanish law provided a modicum of respect for the judiciary. 46 That was not the situation in Hispaniola and Central America, where European oversight had disappeared around a century earlier. Judges mostly came in for criticism because of incompetence and their willingness to take bribes. As one critic put it, wrote scholar Carl Kelsey, who spent four months in Haiti in 1921, perhaps 30 per cent of the judges know the law and 50 per cent can use it; the rest are worthless. The Haitians themselves have little confidence in the courts. 47 Dana Munro of the State Department agreed that the majority of the Haitian judges are utterly venal. 48 The lower-court judges, wrote one officer about the Haitian Courts of First Instance, are, as a class, ignorant, venal, and utterly and entirely incompetent. The next level up, the Courts of Appeals, he judged somewhat more competent, but regretted that they always found in favor of Haitians. Haiti s highest judges, those of the Court of Cassation, were well regarded but so wedded to the law, as law, that they have completely disassociated themselves from the life of the people. 49 In a more ambivalent newspaper comment, a Haitian of the elite (and likely a lawyer) in 1916 generally agreed that judges were the crux 42 Thalès Jean-Jacques, Histoire du droit haitien: Tome premier (Port-au-Prince, 1933); Mejía Ricart, Historia general; Vega, Historia del derecho dominicano, Colonel L. McCarty Little to Edwin Denby, Secretary of the Navy, Port-au-Prince, April 8, 1921, /1918, Haiti , RG 59, NARA II. 44 John H. Russell, memorandum, Washington, D.C., February 1919, folder Legation Guard, Haiti, box 1, General Correspondence of the 1st Brigade, , RG 127, NARA I; Lane, Civil Government in Santo Domingo in the Early Days of the Military Occupation, Lane, Civil Government in Santo Domingo in the Early Days of the Military Occupation, See Hitchman, Leonard Wood and Cuban Independence, 42 47; Jack C. Lane, Armed Progressive: General Leonard Wood (1978; repr., San Rafael, Calif., 2009), 91; and Henry Parker Willis, Our Philippine Problem: A Study of American Colonial Policy (New York, 1905), Kelsey, The American Intervention in Haiti and the Dominican Republic, Dana G. Munro, memo to Secretary of State, March 18, 1925, /10, Haiti , RG 59, NARA II. 49 Statement of Lieut. Col. Alexander Williams, in Hearings before a Select Committee on Haiti and Santo Domingo, 1: 568.
10 1158 Alan McPherson of the problem. Some were fair, others not, but they were generally of poor quality. Representing his social stratum, however, he feared the anarchy of the lynch mob and merely called for judges to rise above private interests. 50 Neighboring Dominicans, meanwhile, had no mechanism for removing judges. 51 In Nicaragua, it was the polarization of the two-party system, pitting Conservatives against Liberals, that colored the bench. Conservative judges, for instance, freed Conservative criminals without a trial. As a result, the Marines and the U.S.-founded and -officered Guardia Nacional held the accused without due process or else conscripted them many of them rapists, henchmen, assassins, or bandits into the Guardia. 52 Juries fared little better in the eyes of the occupiers and many of the occupied. The jury in Haiti is nothing but a farce, a buffonnery [sic] both in its methods and the results obtained, ranted one officer in Cap-Haïtien. Justices of the peace publicly and repeatedly selected the same people for jury service, resulting in de facto jurymen appointed for life. The government was supposed to pay expenses for jurors but rarely did. As a result, out of 175 jurymen chosen one year in Cap-Haïtien, more than 120 failed to show. Sometimes police filled jury seats through arrests. And the expression a jury of one s peers took on a whole new meaning: jurors in murder and rape cases were often former murderers and people who are guilty of rape. 53 Another common observation was that jurors were afraid to mete out punishments commensurate with crimes. To circumvent this, some courts charged serious criminals with misdemeanors so that judges alone would try them. 54 Attorneys also exploited jurors belief in the supernatural. In defending against a charge of murder, a lawyer argued that in killing their victims, his clients had merely disposed of dangerous loups-garous or werewolves. The jury promptly acquitted the murderers as being public benefactors, reported a British diplomat with disgust. 55 A Haitian agreed: We have seen juries unfortunately forget the serenity of their social function, the gravity of their cause we have seen them applaud and reveal their emotions in the midst of debates. 56 One Haitian legal historian described the persistence of these pre-logical rationales: late in the twentieth century, Haitians still used tarot cards, straws, and dreams to determine guilt or innocence. 57 The occupiers and the occupied, however, identified fundamentally different causes for the dysfunction. U.S. observers largely attributed court incompetence 50 My translation. Émile Dorsinville, Justice et gens de robe, pt. 1 of 2, L Essor (Port-au-Prince), April 15, 1916, Lane, Civil Government in Santo Domingo in the Early Days of the Military Occupation, Dana Munro to Francis White, Assistant Secretary of State, Managua, October 27, 1928, folder Munro, Dana G. 1928, box 8, Francis White Papers, Herbert Hoover Presidential Library, West Branch, Iowa [hereafter Hoover Library]. 53 R. L. [Shepard?], Intelligence Report, Cap-Haïtien, July 24, 1927, folder Intelligence Reports Nord 2 of 2, box 1, Intelligence Reports from the Department of the North, , RG 127, NARA I. 54 Report Covering Haiti Prepared in the Division of Latin American Affairs, January 1, 1930, folder Haiti Report, 1930, box 14, Francis White Papers, Hoover Library, British Chargé d Affaires in Port-au-Prince R. P. Ferdinand Edwards, memo to Secretary of State for Foreign Affairs Sir Austen Chamberlain, April 19, 1928, file A3219, reference 11994, Foreign Office 371, Public Record Office, Kew, United Kingdom [hereafter PRO-UK]. 56 My translation. Émile Dorsinville, Justice et gens de robe, pt. 2 of 2, L Essor (Port-au-Prince), May 15, 1916, Montalvo-Despeignes, Le droit informel haïtien,
11 The Irony of Legal Pluralism in U.S. Occupations 1159 to cultural deficiencies, such as the Latin mind, intense individualism, and the inability to distinguish gossip from firsthand knowledge. 58 Occupied peoples, in contrast, praised the European influences in their courts the French system is the most scientific and best in the world is how one U.S. legal adviser paraphrased such comments and politicians claimed that they could not erode the courts independence. 59 They also brought up structural issues, such as the pitifully small salaries of Haitian judges. 60 Another Haitian noted the small number of lawyers only 150 among the 200,000 inhabitants of Port-au-Prince. 61 Political patronage and personalism played an equally important role. A former Haitian bureaucrat explained, for instance, why courts never found anti-government journalists guilty: The new [next] Government might remember the action that had been taken by the court and disapprove of it, the judge or judges having to suffer for their action. 62 In 1921, a Dominican provincial governor explained how even during trials, it s easy for criminals or their family to obtain false testimony in their defense: the judge has no way to verify their truthfulness other than the swearing in... not to mention that the masses have all fraternized with those who carry everywhere the venom of their vices. 63 Whatever the explanation, occupations did not create sui generis injustice; they exacerbated existing injustice. THE LEGAL PLURALISM OF U.S. OCCUPATIONS fostered additional resistance in indirect and direct ways. Haiti offered the most sustained and widespread resistance through its courts, partly because the level of racial antagonism was higher there than in the Dominican Republic or Nicaragua. But mostly Haiti stood out for structural reasons. First, the Marines occupied every community in Haiti and so encountered broader resentment there than in Nicaragua, where they were concentrated in one mountainous region. Second, because of its unique ostracism by empires after its revolution, leading to the underdevelopment of commercial agriculture, Haiti had a longer tradition of community independence from weak central governments than the other two nations, and consequently a greater desire to maintain local autonomy, especially against Marine centralization. The first category of resistance through courts consisted of efforts to side with non-insurrectionists and non-activists who simply engaged in cultural and economic 58 Stuart E. Grummon, Chargé d Affaires ad interim, to the Secretary of State, Port-au-Prince, August 29, 1930, /2881, Central Decimal Files Relating to Internal Affairs of Haiti, [hereafter Haiti ], RG 59, NARA II; Hearings before a Select Committee on Haiti and Santo Domingo, 1: 554, Judge Richard U. Strong, Legal Adviser, memo to Brigadier General John H. Russell, American High Commissioner, Port-au-Prince, December 30, 1926, /12, Haiti , RG 59, NARA II. 60 While the highest court could pay up to $200 a month, lower courts paid $70 $80, and juges de paix, at the lowest level, made $16 $20. Damon A. Woods, Consul at Cap-Haïtien, report, September 1, 1923, /1965, ibid. 61 Dorsinville, Justice et gens de robe, pt. 2, Mr. Benoît cited in entry for April 25, 1921, Colonel John H. Russell, daily diary report, April 28, 1921, /1769, Haiti , RG 59, NARA II. 63 My translation. Teófilo Cordero, Governor of the Province of La Vega, to Secretaría de Estado de lo Interior y Policía, La Vega, October 1, 1921, legajo 422, 1921, fondo Secretaría de Estado de Interior y Policía, AGN-DR.
12 1160 Alan McPherson activities that were banned by the occupation forces. This was the most indirect category because its goal was not to harm the occupation but to continue living as in pre-occupation days. The U.S. military governor in the Dominican Republic, Thomas Snowden, enumerated what he considered the symptoms of a general disregard for law in minor things : Cock-pits were maintained in nearly every country section. Gambling was carried on more or less openly everywhere... To add to this disorder, native officials, almost in their totality, countenanced, connived at, or openly aided in the last mentioned violations. Hundreds of persons still possessed firearms notwithstanding the Proclamation of the Military Government. Last to be mentioned here, but not the least in the trouble line, were the smugglers over the Haitian frontier. 64 In Haiti, the Vodou religion was the most common of these minor things defended by the native courts. The Haitian Penal Code banned Vodou, but the law remained unapplied until the occupation. As Kate Ramsey has demonstrated, the occupiers fear of what was to them a mysterious practice fed enforcement efforts as much as it fed fears of injustice in the Haitian courts. 65 Yet enforcement proved nearly impossible because of legal pluralism. In 1918, for instance, a district commander in Aux Cayes arrested eight Haitians celebrating a Feast of the Dead. 66 The reason seemed banal enough: Joseph Lamonge, a forty-year-old farmer, wanted to heal his wife, Anelia Dumervil, who had been ailing for three months, by holding such a ceremony. Knowing that he would not get permission from the Marines for any Vodou ritual, Lamonge asked his cousin, an assistant to the juge de paix, who gave him oral assent in exchange for three gourdes ($0.60). The Marines had the eight vodouisants tried in a Haitian court, whose officers proceeded to manipulate procedure: the juge de paix, Lacroix Lubin, questioned the defendants, but his written answers, according to Marine records, were always held up until the accused had been crossquestioned [sic] several times. Before the examination was over the Judge had managed by his encouraging manner, to have the accused talking in his own favor. Then something favorable to the accused was written down as the answer. Lubin considered only Lamonge to be on trial and released the others. He meted out the minimum sentence and, in the words of a Marine, all but apologized to Lamonge for having to give him even that. Orders for arrests and releases went back and forth for weeks until confessions secured releases for all. 67 Six years later, the occupiers had made little progress in suppressing Vodou. The chief of the Gendarmerie instructed his men to make arrests only in flagrant délit and with plenty of witnesses. Many acquittals, he explained, take place in the Courts of First Instance due to the faulty proces verbaux prepared by the judges de 64 Quarterly Report of Military Government in Santo Domingo from April 1, 1919, to June 30, 1919, August 28, 1919, /2153, Central Decimal Files Relating to Internal Affairs of the Dominican Republic, [hereafter DR ], RG 59, NARA II. 65 Kate Ramsey, The Spirits and the Law: Vodou and Power in Haiti (Chicago, 2011), Ramsey, however, cites only one case from a Haitian court. 66 Exhibit A: Transcript of Trial, July 16, 1918, folder 7th Co[mpany], District Commander, Mo[nthly] Rpts, box 9, Records of the Gendarmerie d Haiti, , RG 127, NARA I. 67 First Lieut. E. A. Raymond, Sub District Commander, memo to J. Gray, District Commander, Aux Cayes, Port à Piment, July 22, 1918, ibid.
13 The Irony of Legal Pluralism in U.S. Occupations 1161 paix [sic], either purposely or through ignorance, thereby making it easy for the lawyers to obtain acquittals. 68 Making up a second category of court resistance were instances in which native courts upended the orderly functioning of occupations just as provost courts and constabularies usurped the authority of native courts. President Philippe Sudre Dartiguenave characterized the majority of the judges in Haiti as opposed to the existing state of things, meaning the intromission of the constabulary in judicial affairs. They therefore would acquit murderers and robbers, under the pretense that the prison regime is too severe... under the control of the Occupation. 69 In the Dominican Republic, prosecuting attorneys regularly failed to give the constabulary the names of many scores of criminal refugees. 70 Sometimes the delegitimization of U.S. courts was purely symbolic, as when Dominican lawyer Luis del Castillo appeared in a provost court to defend Doroteo Regalado but made a point of stating that he was doing so as a friend and not a Dominican attorney, since never could I appear before tribunals that are not of the Republic. 71 Witnesses also dreaded testifying in favor of Marines because they feared reprisals from compatriots. In Nicaragua, reported Dana Munro, civil court judges often let criminals go free because of this fear. 72 In the Dominican Republic, Juan Calcaño led 350 gavilleros in looting the La Romana Sugar Company, a U.S. subsidiary. Calcaño was arrested, but strong opposition was encountered on all sides when a request was made of witnesses for affidavits... Very likely their main objection was against assisting an American to obtain evidence upon which one of their countrymen might be imprisoned. Even the manager of La Romana, Mr. Clock (likely a U.S. citizen), discouraged his employees from giving affidavits to investigating Marines, fearing that such action might prejudice the interests of the company. 73 Other foreign corporations were targeted as allies of the occupation, whether or not they actually were. Such associations made up a third category of resistance against agents or perceived agents of occupation. While no evidence exists that occupation officials gave favorable treatment to U.S. corporations in the courtroom, they saw their mission as partly to facilitate foreign investment, property ownership, and loans. To occupied peoples, therefore, any U.S. corporation might have seemed indistinguishable from occupation itself. In a glaring case, the Ford Motor Company sued a Haitian who stole a few tires. As the crime was not against U.S. occupation forces, it went to a Haitian court, which acquitted the defendant, as a U.S. official sarcastically observed, on the ground that he was a poor and helpless Haitian, in 68 D. C. McDougal, Chief of the Gendarmerie, memo to Department Commanders of North, South, and Central Departments, and Chief of Police of Port-au-Prince, Port-au-Prince, November 13, 1924, folder Garde d Haiti [Misc. Corres ], box 4, General Correspondence of the Gendarmerie d Haiti , RG 127, NARA I. 69 Cited in John H. Russell, Memorandum on the Judicial System of Haiti, March 16, 1920, folder Misc. Corrs. (27 Dec 17 1 Jun 18), box 3, Records of the First Provisional Brigade in Haiti, , RG 127, NARA I. 70 Quarterly Report, August 28, 1919, DR , RG 59, NARA II. 71 My translation. Del Castillo cited in Doroteo Regalado, De mi via-crucis (A través de la ocupación norteamericana) (La Vega, 1922), Munro, The United States and the Caribbean Republics, Special Inspector St. Elmo to General Receiver, September 23, 1916, /1917, DR , RG 59, NARA II.