AHR Forum
The Irony of Legal Pluralism in U.S. Occupations
ALAN M C PHERSON
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
Domı́nguez 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, 1925.
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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 (1912–1933), Haiti (1915–1934), and the Dominican Republic (1916–
1924) 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 1918–1940, Correspondance Politique et Commerciale 1914 –1940, 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, 838.00/2382, Central Decimal Files Relating to Internal Affairs of Haiti,
1910–1929 [hereafter Haiti 1910–1929], 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.
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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.10
6 Cited in Whitney T. Perkins, Constraint of Empire: The United States and Caribbean Interventions
(Westport, Conn., 1981), 60, 117.
7 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),
295–323, 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): 125–139.
8 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, 1898–1902 (The Hague, 1971), 42.
9 On Haiti, see Ferdinand Delatour, Les 150 ans du régime du code civil dans le contexte social haı̈tien,
1826–1976 (Port-au-Prince, ca. 1977); and Jacquelin Montalvo-Despeignes, Le droit informel haı̈tien:
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 Mejı́a
Ricart, Historia general del derecho e historia del derecho dominicano, 2 vols. (Santiago, 1942–1943);
Carlos Gatón Richiez, La jurisprudencia en la República Dominicana: Doctrina y legislación, 1865–1938
(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, 1915–1940
(Chapel Hill, N.C., 2001). See also Bruce J. Calder, The Impact of Intervention: The Dominican Republic
during the U.S. Occupation of 1916–1924 (Austin, Tex., 1984); Hans Schmidt, The United States Occupation of Haiti, 1915–1934 (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, 1900–1945 (Cambridge, 1996); Michiel
Baud, “The Struggle for Autonomy: Peasant Resistance to Capitalism in the Dominican Republic, 1870–
1924,” in Malcolm Cross and Gad Heuman, eds., Labour in the Caribbean: From Emancipation to Independence (London, 1988), 120–140; Catherine C. LeGrand, “Informal Resistance on a Dominican
Sugar Plantation during the Trujillo Dictatorship,” Hispanic American Historical Review 75, no. 4 (November 1995): 555–596; 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, 1492–1971 (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,
1898–1903, Special Issue, Pacific Historical Review 48, no. 4 (November 1979). See the overview by
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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, 1898–1903,” 467– 471. 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, 1915–1934”
(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), 267.
13 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 42.
14 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): 127–146; and Commander C. C.
Baugham, USN, “United States Occupation of the Dominican Republic,” U.S. Naval Institute Proceedings 51, no. 12 (December 1925): 2306–2327; by a diplomat, see Dana G. Munro, The United States and
the Caribbean Republics, 1921–1933 (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):
394 –399; 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, 109–
202; Paul H. Douglas, “The American Occupation of Haiti I,” Political Science Quarterly 42, no. 2 (June
1927): 228–258; Douglas, “The American Occupation of Haiti II,” Political Science Quarterly 42, no. 3
(September 1927): 368–396; and Raymond Leslie Buell, “Reconstruction in Nicaragua,” Foreign Policy
Reports 6, no. 18 (November 12, 1930): 315–343.
15 Schmidt, The United States Occupation of Haiti, 17. Thanks to Marvin Chochotte for this insight.
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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 7.
17 Brissman, “Interpreting American Hegemony,” 215.
18 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, 1400–1900 (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): 575–594; 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, 1799–1862 (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): 445– 486; Barry
S. Godfrey and Graeme Dunstall, eds., Crime and Empire, 1840–1940: 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):
397– 431; Miranda Forsyth, “A Typology of Relationships between State and Non-State Justice Systems,”
Journal of Legal Pluralism, no. 56 (2007): 67–112; and Lauren Benton, A Search for Sovereignty: Law and
Geography in European Empires, 1400–1900 (Cambridge, 2010).
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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, 1492–1700 (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): 91–113. 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), 201–222; Jeremy Boissevain and Hanneke Grotenbreg, “Entrepreneurs and the Law: Self-Employed Surinamese in Amsterdam,” ibid., 223–251; Carol J. Greenhouse, “Interpreting American Litigiousness,” ibid., 252–273; 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 20thCentury 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, 178–220; 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, 1788–98,” Slavery &
Abolition 30, no. 3 (September 2009): 403– 426.
22 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): 69–87. 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): 643–650; I. William Zartman, “Europe and Africa: Decolonization or Dependency?” Foreign
Affairs 54, no. 2 (January 1976): 325–343; John Flint, “Planned Decolonization and Its Failure in British
Africa,” African Affairs 82, no. 328 (July 1983): 389– 411; S. K. N. Blay, “Self-Determination versus
Territorial Integrity in Decolonization,” NYU Journal of International Law & Politics 18 (1985–1986):
441– 472; David Strang, “From Dependency to Sovereignty: An Event History Analysis of Decolonization, 1870–1987,” American Sociological Review 55, no. 6 (December 1990): 846–860; Strang, “Global
Patterns of Decolonization, 1500–1987,” International Studies Quarterly 35, no. 4 (December 1991): 429–
454; 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, 1946–1997:
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.
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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
Miller, “Diplomatic Spurs,” 36.
William Kamman, A Search for Stability: United States Diplomacy toward Nicaragua, 1925–1933
(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, 1915–1940 (Boulder, Colo., 2001), 161,
165–166.
26 Bickel, Mars Learning, 116.
27 Winthrop R. Scott, American Consul in Cap-Haı̈tien, 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, 1915–
1934, RG 127, NARA I.
29 Adolf Berle to Admiral H. S. Knapp, Santo Domingo, May 31, 1918, legajo 20, 1920–1921, fondo
Gobierno Militar, Archivo General de la Nación, Santo Domingo, Dominican Republic [hereafter AGNDR].
30 Sumner Welles, Naboth’s Vineyard: The Dominican Republic, 1844 –1924, 2 vols. (Mamaroneck,
N.Y., 1966), 2: 806.
24
25
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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 $2.56.34
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
Baugham, “United States Occupation of the Dominican Republic,” 2314.
Schoenrich, “The Present American Intervention in Santo Domingo and Haiti,” 59, 60.
33 Cited in Calder, The Impact of Intervention, 128.
34 Brigade Law Officer, memo to Commanding General [Russell?], Port-au-Prince, November 24,
1925, 838.00/2172, Haiti 1910–1929, RG 59, NARA II.
35 Harry Alverson Franck, Roaming through the West Indies (New York, 1920), 239.
36 Vega, Historia del derecho dominicano, 344.
37 My translation. Alphonse Henrı́quez, letter to the editor, “Un état dans un état,” Le petit impartial,
April 4, 1929, 2.
38 Hearings before a Select Committee on Haiti and Santo Domingo, 67th Cong., 1st and 2nd sess.,
2 vols. (Washington, D.C., 1922), 2: 1473.
39 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, 213–214.
41 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,
1915–1934, RG 127, NARA I.
31
32
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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); Mejı́a Ricart,
Historia general; Vega, Historia del derecho dominicano, 304.
43 Colonel L. McCarty Little to Edwin Denby, Secretary of the Navy, Port-au-Prince, April 8, 1921,
838.00/1918, Haiti 1910–1929, 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, 1921–1925, RG 127, NARA I; Lane, “Civil Government in Santo Domingo in the Early Days of the Military Occupation,” 142.
45 Lane, “Civil Government in Santo Domingo in the Early Days of the Military Occupation,” 142.
46 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), 90–93.
47 Kelsey, “The American Intervention in Haiti and the Dominican Republic,” 129.
48 Dana G. Munro, memo to Secretary of State, March 18, 1925, 838.04/10, Haiti 1910–1929, RG
59, NARA II.
49 Statement of Lieut. Col. Alexander Williams, in Hearings before a Select Committee on Haiti and
Santo Domingo, 1: 568.
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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-Haı̈tien. 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-Haı̈tien,
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, 32.
51 Lane, “Civil Government in Santo Domingo in the Early Days of the Military Occupation,” 141–
142.
52 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-Haı̈tien, July 24, 1927, folder Intelligence Reports
Nord 2 of 2, box 1, Intelligence Reports from the Department of the North, 1926–27, 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, 121.
55 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, 57.
57 Montalvo-Despeignes, Le droit informel haı̈tien, 56–58.
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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, 838.00/2881, Central Decimal Files Relating to Internal Affairs of Haiti, 1930–1939
[hereafter Haiti 1930–1939], RG 59, NARA II; Hearings before a Select Committee on Haiti and Santo
Domingo, 1: 554, 569.
59 Judge Richard U. Strong, Legal Adviser, memo to Brigadier General John H. Russell, American
High Commissioner, Port-au-Prince, December 30, 1926, 838.04/12, Haiti 1910–1929, 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-Haı̈tien, report, September
1, 1923, 838.00/1965, ibid.
61 Dorsinville, “Justice et gens de robe,” pt. 2, 59.
62 Mr. Benoı̂t cited in entry for April 25, 1921, Colonel John H. Russell, daily diary report, April
28, 1921, 838.00/1769, Haiti 1910–1929, RG 59, NARA II.
63 My translation. Teófilo Cordero, Governor of the Province of La Vega, to Secretarı́a de Estado
de lo Interior y Policı́a, La Vega, October 1, 1921, legajo 422, 1921, fondo Secretarı́a de Estado de
Interior y Policı́a, AGN-DR.
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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, 839.00/2153, Central Decimal Files Relating to Internal Affairs of the Dominican Republic, 1910–1929 [hereafter DR 1910–1929], RG 59, NARA II.
65 Kate Ramsey, The Spirits and the Law: Vodou and Power in Haiti (Chicago, 2011), 145–147. 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, 1915–1934, 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.
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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. 1924 –32], box 4, General Correspondence of the Gendarmerie
d’Haiti 1915–1926, 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, 1915–1934,
RG 127, NARA I.
70 “Quarterly Report,” August 28, 1919, DR 1910–1929, 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), 15.
72 Munro, The United States and the Caribbean Republics, 236–237.
73 Special Inspector St. Elmo to General Receiver, September 23, 1916, 839.00/1917, DR 1910–1929,
RG 59, NARA II.
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controversy with one of the richest and most powerful corporations in the world.”74
U.S. corporations also had difficulty buying land and clarifying titles because of
courts.75 In another case, a car being driven by two drunken Dominicans was struck
by a train that was backing up slowly with its lights on. This happened on the property
of a sugar corporation; as a result, the corporation was fined $500, and the brakeman,
engineer, and fireman all were jailed.76 Fearing such hostile courts, merchants kept
profits in foreign, not national, banks; invested only in their own businesses; and
quietly fired rather than sued employees whom they suspected of theft. As a result,
few investors saw returns, and many were discouraged from investing altogether.77
Still within this third category, native courts acted against persons or institutions
associated with the Marines, thus again indirectly undermining the occupation by
throwing the cases into native courts and ensuring acquittals. One U.S. district commander felt that his Haitian foreman on a hated corvée road gang, Oday, had been
unjustly found guilty of assault against a local woman because “the judges know that
I sided with Oday financially in obtaining a lawyer.” Other judges refused to help
collect taxes.78 In another instance, two employees of the Haitian Public Health
Service were arrested for stealing supplies. An administrator reported that it was
“the unanimous opinion of all, including the Haitian Judge of Instruction, who originally investigated their cases[,] that the evidence against these two men was irrefutable. The supplies reclaimed from them were easily recognized as the property
of this Service.” Yet the Court of Cassation released them because it “held that there
was no evidence now or at any time” to incriminate the employees.79 The U.S.-controlled banks in Haiti were also despised for their role in administering the massive
loans that had brought about the occupation. Such resentment led the Court of
Cassation in 1918 to find in favor of a man who had refused to accept a bank’s
payment of a 75 gourde ($15) bill in gold rather than in currency. The occupation
had decreed that all debts were to be paid in gold in order to stabilize the gourde.
However, not only did the court order the bank to pay the check in gourdes, it also
awarded punitive damages of 100,000 gourdes ($20,000).80
Nicaragua had its own fourth, though temporary, category of resistance. Because
the Marines did not have their own courts there, they were vulnerable to courts siding
with defendants who were charged with assaulting Marines. In 1930, when Lieutenant Marvin Wilson of the Guardia was accused of cutting off a prisoner’s finger
with a machete, the Guardia investigated. Witnesses vouched for the victim, despite
Wilson’s claim that the victim had attacked him. The department commander’s interpretation reflected the frustration of U.S. technocratic modernization:
74 W. W. Cumberland, Financial Adviser, memo to Brigadier General John H. Russell, Port-auPrince, November 26, 1926, 838.04/12, Haiti 1910–1929, RG 59, NARA II.
75 Schmidt, The United States Occupation of Haiti, 179.
76 Kelsey, “The American Intervention in Haiti and the Dominican Republic,” 175.
77 Winthrop R. Scott, Consul in Cap-Haı̈tien, memo, September 30, 1926, 838.041/16, Haiti 1910–
1929, RG 59, NARA II. See also Morgan to Kellogg, May 5, 1927, 838.00/2382, ibid.
78 District Commander of Petit Goâve O. E. Neil, cited in Chochotte, “Independent Courts under
Occupation,” 10, 14.
79 K. C. Melhorn, National Public Health Service, memo to Brigadier General John H. Russell,
Port-au-Prince, May 22, 1930, 838.041/35, Haiti 1930–1939, RG 59, NARA II.
80 Hearings before a Select Committee on Haiti and Santo Domingo, 1: 568.
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[The witnesses] were prejudiced against Lieutenant Wilson and . . . their declarations do not
merit serious consideration. As a matter of fact a considerable portion of a certain class of
people at Moyogalpa [where Wilson was stationed] were at this time prejudiced against Lieutenant Wilson because he was engaged in enforcing strictly the police regulations regarding
sanitation, vagrancy and other matters.
Worse for Wilson was that the new judge “was violently opposed to the Guardias
at Moyogalpa and appeared to be searching for an opportunity to belittle their authority and to ridicule them.”81 Insurrectionists also frustrated the Marines in Nicaraguan courts. The government in Managua, although supportive of the use of U.S.
force to ferret out the guerrilla leader Augusto Sandino, lacked the right to hold
prisoners without charge, a power that the Marines had long requested because it
was difficult to find evidence to try defendants in court who proved to be early versions of what the George W. Bush administration would later label “enemy combatants.” According to the U.S. Legation in Managua, it caused “very great embarrassment” that “suspects or prisoners of war bring habeas corpus proceedings”
and must be released.82 In response, the State Department declared martial law in
the north, a major encroachment upon the Nicaraguan legal system, but one that
largely ended this type of court resistance.83
A fifth category of resistance consisted of crimes, from petty to serious, that were
not themselves political in nature, but that were politicized by defense attorneys,
along with others in the courtroom, in order to secure an acquittal. The Azard Fecui
case in Haiti was a prime example. In November 1931, a similar case took place in
Juigalpa, Nicaragua, when the Guardia arrested Cecelio Oporta for counterfeiting.
Oporta had been tried earlier for the same crime, but he was acquitted in that instance because the plates he used could not be produced. This time they could. Yet
the representatives of the courts secured a second acquittal by politicizing the
charges. The local U.S. commander reported being told by the district judge “that
I could not appear before the court to present any evidence in prosecution, nor could
any of the witnesses who worked with me on the case, except for the defense, and
that in that capacity no evidence unfavorable to the accused would be admitted.”
Only one Nicaraguan guard was allowed in the courtroom, handing an opportunity
to defense counsel Luis Molina, who opened by stating, according to a U.S. lieutenant, “that the guardia nacional [sic] were oppressors of the people controled [sic]
by the Wall Street octopus” and that all guards must wait in the street outside. The
judge sustained the motion.84 Molina then “devoted most of his time to haranguing
‘the invaders,’ ‘the bankers of Wall Street,’ referred to ‘the collar or yoke of the
invaders,’ blamed the Wall Street bankers for the disappearance of the old paper
money of ten and twenty five cents value . . . devoting no time in true defense of his
81 H. T. Nicholas, Rivas Department Commander, memo to Jefe Director, Guardia Nacional, Rivas,
May 7, 1930, folder Law Sect. Investigations 7 Jan 30–20 Jan 31, box 34, Headquarters, Historical Section, Records Relating to Marine Corps Units in Nicaragua, 1927–1933 [hereafter MC-Nicaragua], RG
127, NARA I; Statement of 2nd Lieut. Marvin K. Wilson, GN, ibid.
82 Dana Munro, telegram to Secretary of State Frank Kellogg, Managua, January 11, 1928, 817.00/
5243, Central Decimal Files Relating to Internal Affairs of Nicaragua, 1910–1929, RG 59, NARA II.
83 Frank Kellogg, telegram to Dana Munro, Washington, D.C., January 13, 1928, ibid.
84 F. M. Howard, Department Commander, memo to Jefe Director, Juigalpa, November 18, 1931,
folder Jefe Dir. Civil Authorities 13 Jan–20 Dec 31, box 35, Headquarters, Historical Section, MCNicaragua, RG 127, NARA I.
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client with pertinent and real facts.”85 The defense attorney offered no evidence, only
character witnesses, and confided to an interpreter “that he was certain that Oporta
was guilty but that legally nothing could be proven.”86 The Nicaraguan prosecution
offered no evidence at all and even declared the defendant innocent. After the acquittal, the president of the jury smiled as he walked out of the courthouse.87
More than any other, it was the Haitian case of Jean Deetjen that demonstrated
Haiti’s deep-seated opposition to the occupation. Working for the U.S.-controlled
customs service, Deetjen received funds from tax collectors and deposited them in
the National Bank of Haiti; in return, he issued receipts to the collectors. During
an audit, 8,000 gourdes ($1,600) was found to be missing from his cash box. In April
1926, he was charged with embezzling the 8,000 and signed a confession that he had
stolen at least 2,000. His lawyers denied none of the charges.88 Crimes of customsrelated fraud were particularly frustrating to the Marines; the occupiers exercised
a receivership over customs but had no legal jurisdiction over crimes committed at
customs offices, so this was additionally a crime against an occupation institution that
skirted the dividing line of legal pluralism between the imperial and the native.89
Nationalists seized upon the Deetjen case to send a message to the occupation.
More than four hundred showed up at the trial, including “numerous members of
the Opposition and nearly all of the bar association.” Besides claiming that Deetjen’s
confession had been obtained after a threat of “electric current being applied to
him,” defense lawyer Zephirin presented no evidence of Deetjen’s innocence, not
even character witnesses. The crux of the defense was racial and political. “The white
man,” said Zephirin, “wished to cover up this difference [the missing 8,000 gourdes]
by making a Haitian, a negro, the victim.” He continued:
It is not the poor negro who is guilty, it is not Jean Deetjen, it is the white man, it is Gravel
[a U.S. supervisor of Deetjen] who should be there in the prisoner’s dock besides Jean Deetjen
. . . But why, by an absurdity of the law, is it necessary that the American escape from Haitian
[justice?] All white men who have pillaged, stolen, acted roughly [and with bru]tality, are scot
free and are secure from all legal action.
Zephirin even admitted widespread graft, arguing that “since everybody pockets
[small amounts], he does not see why they would punish a negro accused of having
embezzled and he appealed to the jurors that as negroes they must organize themselves and imitate the whites who always agree with each other.” After seventeen
minutes of deliberation, the jury pronounced Deetjen not guilty, and the courtroom
broke out in applause.90 Zephirin had successfully tapped into Haitians’ frustrations
not only over U.S. racism but also over the legal pluralism that allowed U.S. citizens
to run roughshod over Haitian laws.
Statement of Lieut. F. W. Ferguson, Juigalpa, November 20, 1931, ibid.
Statement of Luis F. Baez, Interpreter, GN, Juigalpa, November 18, 1931, ibid.
87 Statement of Ferguson, November 20, 1931.
88 Winthrop R. Scott, Consul in Cap-Haı̈tien, memo, September 30, 1926, 838.041/16, Haiti 1910–
1929, RG 59, NARA II.
89 W. W. Cumberland, memo to John H. Russell, Port-au-Prince, November 26, 1926, 838.04/12,
ibid.
90 “R. L.” [Shepard?], Intelligence Report, Cap-Haı̈tien, July 22, 1926, folder Intelligence Reports
Nord 2 of 2, box 1, Intelligence Reports from the Department of the North, 1926–27, RG 127, NARA
I.
85
86
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Local consul Winthrop Scott sensed accurately that the Deetjen case indicated
discontent that was spreading beyond opposition politicians. Even “the gendarmes
among the audience joined heartily in the applause directed against the American
regime.” He spoke to Haitian lawyers, who expressed to him their disagreement with
the verdict, but their comments were not otherwise encouraging. Maı̂tre Bariento,
for instance, approvingly quoted the Haitian proverb “Voler l’état ce n’est pas voler”
(Stealing from the state is not stealing), and Maı̂tre Adhémar Auguste dismissed the
verdict as the opinion of an ignorant jury. Auguste thought that the courts “work
sufficiently well for our needs. In my opinion the jury system is no worse in Haiti than
in the United States.”91 Momentum was building against the occupation, and the
courts were its conduit.
In the sixth and final category of resistance, native courts most directly exposed
the irony of legal pluralism in cases where defendants’ “crimes” were political in
nature—usually they had defied censorship and criticized the occupation—and so
the conflict between occupiers and occupied was plain to see. In these cases, sympathetic judges, lawyers, and juries used the courtroom as a performance space to
express outrage against occupations as a whole. A Dominican judge named Juan
Bautista Pérez Rancier achieved lasting fame through such a courtroom outburst.
At the Court of Appeals in Santiago in 1920, a witness opened his shirt to reveal burn
wounds inflicted upon him by constabularies, a clear case of torture that Pérez was
powerless to try because it involved members of the occupation. Pérez rose and
declared, “It is an injustice to condemn anyone when the most culpable [the Marines
and constabularies] are beyond my jurisdiction.” He then smashed a crucifix on his
desk, shattering it to pieces. “This is horrible,” he said. “It is a farce. I am going.”
From then on, Pérez was known as “El Hombre del Cristo.”92
Haitian newspaperman Joseph Jolibois Fils became a master of politicized court
theatrics. During the occupation, he went to jail seventeen times, including for perjury, yet he rarely faced a jury and tended to be released early because the Marines
knew that any jury would acquit him.93 And if members of the occupation sued Haitians in a Haitian court, they could be countersued in that same court, and no U.S.
official would put himself in that situation. As Paul Douglas wrote in 1927, this circumstance made it appear that “the Occupation was unwilling to have Jolibois’
charges aired in court.”94 Jolibois understood that the courts had become a stage for
the opposition. In 1923, he was arrested along with a few comrades for seditious
speeches. At their trial, “the court room was crowded with sympathizers and the
street in front was also crowded. Jolibois spoke in the court room against the officers
91 All cited in Scott, Cap-Haı̈tien, memo, September 30, 1926, 838.041/16, Haiti 1910–1929, RG 59,
NARA II.
92 Citations from Tulio M. Cestero, “American Rule in Santo Domingo,” The Nation, July 17, 1920,
78; and from Robert L. Owen, President, et al., of the National Popular Government League, “Address
to the Secretary of State of the United States against the American Occupation of Haiti,” Washington,
D.C., April 27, 1922, 838.00/1867, Haiti 1910–1929, RG 59, NARA II. See also José Ulises Franco,
Nuestros grandes patriotas y la intervención norteamericana del año 1916 (Santiago de los Caballeros,
1984), 53.
93 Report on Jolibois Fils, August 1, 1930, folder Jolibois, Joseph Fils, box 14, Records of the Gendarmerie d’Haiti, 1915–1934, RG 127, NARA I.
94 Douglas, “The American Occupation of Haiti II,” 374.
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of the intervention and gendarmerie charging the prison official with graft.”95 When
a fellow defendant was acquitted, “Jolibois jumped upon the window sill and announced the release to the crowd.” The two hundred people gathered outside
shouted “Down with the occupation!” and “Vive Jolibois!”96
Dominicans also occasionally seized the opportunity to use a trial to make patriotic, anti-occupation speeches. In 1923, Federico Ellis Cambiaso was tried for
publishing a pamphlet titled The Four Monsters of the Annexation, a reference to
Dominican party leaders who had agreed to a gradual Marine withdrawal. So many
known anti-occupation protesters turned out to support him that “the audience hall
could not hold another person.” Before this assembly, Ellis “ratified everything contained in the pamphlet, which was the cry of the race, a signal of alarm to the young
Spanish-American nationalities, threatened by the power of the great eagle of the
north.” Although he was found guilty, he left the courthouse surrounded by prominent allies: “In descending the stairs of the Court, and in the street, the large crowd
which had gathered applauded Dr. Ellis and broke forth in shouts of ‘long life to the
Republic,’ all accompanying him to the police prison.”97
Like Dominicans, Haitians became bolder as their occupation dragged on. By
1929, with Dartiguenave’s successor as president, Louis Borno, now firmly in power,
a generation of Haitians, brought up during the occupation, embraced a version of
négritude that emphasized Haiti’s African heritage as well as an incipient Marxism
that argued for the cross-class struggle of Haitian peasants and elites. Both ideologies emboldened these young Haitians against U.S. imperialism, and the tension
erupted in November of that year in a general strike that ended in December when
cornered Marines shot into a group of Haitians, killing several.98
Young Haitians also resented the traditional European-educated mixed-race
elite, who had long controlled the judicial process and benefited from its graft. Few
if any newspapers of that elite ever reported on native court abuses. But Le petit
impartial, the voice of youth in this Haitian renaissance, did. A single four-page issue
in April 1929 contained five articles about the injustice of the judiciary: about Haitians kept in the penitentiary without charges for fifteen months, about “unconvincing charges,” about incompetent and corrupt judges.99 In naming names and
leveling charges against them that were typically brought against U.S. provost courts,
Le petit impartial was signaling a new accountability for the Haitian court system.
Yet for now, the greater enemy was the U.S. occupation, and growing disenchantment with it produced the single most violent courtroom episode of all three
occupations. Jacques Roumain, a young engagé novelist, a founder of Le petit im95 Emphasis in the original. Russell, memo to Hughes, Port-au-Prince, October 17, 1923, 838.00/
1979, Haiti 1910–1929, RG 59, NARA II.
96 Ibid.
97 La Opinión (Santo Domingo), January 27, 1923, translation (without headline) enclosed in William Russell, memo to Secretary of State, Santo Domingo, January 31, 1923, 839.00/2676, DR 1910–1929,
RG 59, NARA II.
98 For details, see Heinl and Heinl, Written in Blood, 490– 496; Rulhière Savaille, La grève de 29: La
première grève des étudiants haı̈tiens, 31 octobre 1929 (Port-au-Prince, 1979); Schmidt, The United States
Occupation of Haiti, 148–152; and Magdaline W. Shannon, Jean Price-Mars, the Haitian Elite and the
American Occupation, 1915–1935 (New York, 1996).
99 My translation. “Les méfaits de la prison préventive,” Le petit impartial, April 4, 1929; “Que fait
le juge Thomas Pierre Philippe,” ibid.; “Alcime Pierre renvoyé au criminel,” ibid.; “Un état dans un état,”
ibid.; “Le jugement de M. M. E. Guérin, Georges J. Petit et Jacques Roumain,” pt. 1, ibid.
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partial, and later a founder of the Haitian Communist Party, was tried along with two
newspaper editors for producing libelous handbills against the Catholic Church and
President Borno. The Church refused to sue, but Borno was eager.
Their first trial took place on April 1, 1929. Le petit impartial described how the
audience applauded as Roumain and his co-defendants walked into the courtroom.
When allowed to make a statement, Roumain claimed that he shared a hatred of
Borno with “all Haitians except the small percentage of bureaucrats feeding at the
trough of Cooperation!” The judge ordered the room cleared, but Roumain
“turn[ed] to the audience and yell[ed], ‘My people, do not let yourself be pushed
around!’ ”100 As the judge sent the defendants back to prison, they countered, “We
protest!” “You will judge us in our absence. This is a travesty!” and “You are not
our judge. It is you who should be in our place. Condemn us, assassinate us, treason
will crush you. You feed off the grime of the white man.” The statements “unleash[ed] from the audience an indescribable enthusiasm,” wrote Le petit impartial.
As he was being led away, Roumain escaped the clutches of a Garde sergeant and
ran back to the cheering courtroom before he was again dragged away. In what had
become common practice in native courts, the crowd followed the accused to the
door of the penitentiary.101
On April 22, a Haitian court again tried the three men. The Marines posted more
than forty men in and around the courthouse, aware that they walked a fine line
between intimidating the audience and inciting a riot.102 Their fears were not misplaced. Roumain’s lawyer insisted that the trial be fully public, so the doors were
thrown wide open and the room filled beyond capacity. Taking over his own defense,
Roumain admitted to printing the handbills and listed grievances against Borno and
the occupation. After one of his co-defendants had railed against the Church for half
an hour, wrote a U.S. observer, their lawyer “launched into a two-hour attack on the
American Occupation, with scant reference to the charge on which his clients were
being tried. At no time did the court attempt to confine him to the subject.” When
he was done, “With a dramatic gesture he then turned to the prisoners and exclaimed: ‘Now you can judge them!’ ”103
Then things turned chaotic—again. Many in the audience ran up to Roumain to
shake his hand and hug him. He attempted to leave the box of the accused. A Marine
lieutenant named Bolton spread his arms to block Roumain’s exit, warning him twice
to return to the box. Roumain charged Bolton, hitting him three times, and Bolton
then threw his arms around Roumain. The two men fell back, smashed the door of
the box, and fell to the ground. “At this point the courtroom was in extreme disorder,” wrote the Garde commandant. “Part of the audience surged toward the platform. People were shouting and gesticulating, at a high pitch of emotion. The [district
attorney] fled from the room. The presiding Judge sought refuge under his desk, and
after disappeared, returning when quiet had been restored. Three women in the
“Le jugement de M. M. E. Guérin, Georges J. Petit et Jacques Roumain,” pt. 1, 3.
“Le jugement de M. M. E. Guérin, Georges J. Petit et Jacques Roumain,” pt. 2, Le petit impartial,
April 6, 1929, 2.
102 John H. Russell to Henry Stimson, Secretary of State, Port-au-Prince, May 1, 1929, 838.00/2526,
Haiti 1910–1929, RG 59, NARA II.
103 F. E. Evans, Commandant of the Garde d’Haiti, “Report on Trial of Journalists of ‘Le Petit
Impartial,’ April 22, 1929,” May 1, 1929, ibid.
100
101
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middle of the room were shrieking at the top of their voices.” The Haitian chief of
detectives clubbed Roumain in the head with a nightstick. The court was cleared.104
These courtroom scenes were the most direct illustration of the irony of legal
pluralism: the occupiers set up U.S.-dominated provost courts in part to prosecute
such political “crimes,” but occupied peoples found ways to steer clear of those
courts by criticizing their own leaders, thereby throwing their cases to their own
native courts, where audiences were far more favorable. “The fact is that the independent Haitian courts have proved one of the few effective checks on our power
and, through their juries, have provided an outlet for Haitian feeling against us,”
wrote Clarence Streit during the occupation.105 To be sure, anti-occupation gains
through courts were not clear-cut. Using courts in such openly political ways added
to the violence of occupation. One Marine in Hinche admitted to ordering that Haitian prisoners be summarily executed in a cemetery because “it was impossible to
obtain conviction in the local civil courts.”106 Yet it speaks to the desperation of
anti-occupation activists that they would nevertheless distort the processes of justice
and use any rhetorical tool at their disposal to rid the circum-Caribbean of U.S.
occupations.
AS A FINAL MEASURE OF THEIR hostility to legal pluralism, some occupied peoples
resisted U.S.-led efforts to reform their courts, efforts that confirmed how frustrated
the occupiers themselves were by legal pluralism, their version of which was not
proving to be as conducive to order as they had hoped.107 Haiti witnessed by far the
most serious effort at reform.108 Haitians themselves had long counseled reform. In
1916, one lawyer proposed that all current judges be replaced with judges trained
first as lawyers so that they would know the law; that civil tribunal judges and juges
de paix be mandated to have a law degree of some kind; and that judges be allowed
to rule on a case if the jury proved incompetent. He specifically wanted to avoid
“imitating Europe in the making of our laws and Africa in their application” and
instead to take advantage of U.S. occupation “to remind us that the Foreigner
watches and controls us!”109
However, the changes designed by the occupiers were unsuccessful. In April 1924,
the Marines in Haiti forwarded to Borno and his Council of State a detailed reform
bill. It was to allow dismissals of judges and impose term limits; strip away police
jurisdiction from lower courts; reduce the number of first instance judges from fifty
Ibid.
Clarence K. Streit, “Haiti: Intervention in Operation,” Foreign Affairs 6 (July 1928): 624.
106 Interview with Alexander S. Williams, January 6, 1920, folder Investigations, Haiti, extra copies,
box 2, Reports Relating to U.S. Navy and Marine Corps Operations in Haiti and Santo Domingo, 1915–
1921, RG 127, NARA I.
107 This article argues against D’Arcy Brissman’s contention that Americans “ignored this form of
protest [courtroom scenes] because it did not interfere with their primary work.” She adds that “top
marines in Haiti barely suspected the political motives behind the judiciary’s behavior.” Brissman, “Interpreting American Hegemony,” 263, 261.
108 In Nicaragua, martial law was declared in some northern departments. In the Dominican Republic, the military government allowed disbarment and increased judges’ salaries. See Lane, “Civil
Government in Santo Domingo in the Early Days of the Military Occupation,” 142; Baugham, “United
States Occupation of the Dominican Republic,” 2314; Calder, The Impact of Intervention, 87.
109 My translation. Dorsinville, “Justice et gens de robe,” pt. 1, 32; pt. 2, 57.
104
105
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to twenty; fuse the four courts of appeals into one; reduce the number of higher court
judges from nine to six; and build a new Palais de Justice.110 Since the treaty with
Haiti gave the U.S. no authority over the courts, only Borno’s government could pass
the bill and reform them.
But reform did not come in 1924. The Court of Cassation, despite its reputation
for professionalism, proved as self-protective as any other, with the justices vowing
in secret to uphold any appeal from one of their own who was threatened with dismissal.111 Borno’s ministers also wavered, for reasons unknown, but perhaps influenced by their friends in the judicial system.112 In January 1925, the Council of State
did adopt a judiciary reorganization that reduced the number of judges of first instance and increased the salary of most judges. But nothing else changed.113
“The courts of Haiti have been but little, if any, improved by this reorganization,”
argued Russell, the head of the occupation, a year later. Not realizing the imperialist
circularity of his argument, he noted that “the temptation [by the judges] to usurp
authority is great, especially where the legislative and executive branches are under
foreign influence as is the case in Haiti.” He was especially dismayed that judges
would “throw open the doors of the Treasury” for friends who sued the government.114 A second round of reforms in 1928 was more sweeping, but it was no more
effective at changing the political culture of Haiti because it gave the president yet
another chance to replace judges with friends.115 Only years after the occupation did
Haiti reform its courts to significantly centralize power and weaken local authorities.116 If anything, the occupation may have delayed reform.
TENSIONS BETWEEN PARALLEL JUSTICE systems, the sabotage of an occupation through
native courts, and the failed reforms of those institutions all illustrated a vicious
circle: occupations struck a blow to occupied peoples’ sovereignty and self-worth,
thus accelerating a disintegration of institutions, which spawned interference by Marines, which in turn justified any behavior by defendants and their advocates, and
finally this resistance justified the occupation itself. An occupation brought with it
its own system of injustice, added to the injustice of the native courts, and left occupied peoples with no better justice system than before the occupation.
These interactions between the concepts and practices of U.S. and native judiciaries have been largely forgotten, yet they may be useful for grasping the evolution
of U.S. empire in the hundred years since the Marines landed in Nicaragua in 1912.
For instance, the history of U.S. legal pluralism can be relevant to understanding
110 Judge Richard Strong, memos to John H. Russell, American High Commissioner, January 1, 1924,
838.00/2011, and April 4, 1924, 838.04/2, Haiti 1910–1929, RG 59, NARA II; Dana Munro, memo to
Francis White, April 15, 1924, 838.04/4, ibid.
111 John H. Russell to Secretary of State, Port-au-Prince, November 29, 1924, 838.04/6, ibid.
112 John H. Russell to Secretary of State, Port-au-Prince, December 16, 1924, 838.04/7, ibid.
113 Judge Richard Strong to John H. Russell, Port-au-Prince, February 11, 1925, 838.04/10, ibid.
114 John H. Russell to Frank Kellogg, Port-au-Prince, February 15, 1926, 838.00/2196, ibid.
115 Richard F. Edwards, memo to Secretary of State for Foreign Affairs Sir Austen Chamberlain, May
24, 1929, file A5433, reference 13486, Foreign Office 371, PRO-UK; “Black Haiti a Republic of Many
Revolutions,” New York Times, December 15, 1929, XX6; John H. Russell to Secretary of State, Portau-Prince, January 18, 1929, 838.041/32, Haiti 1910–1929, RG 59, NARA II.
116 Montalvo-Despeignes, Le droit informel haı̈tien, 51.
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subsequent efforts to bring Western-defined legal reform to former colonies. In U.S.occupied Latin America, such reform ended abruptly after occupation, and an entire
generation passed before U.S. policymakers again tried to reform Latin American
courts, this time under the guise of foreign aid, with more collaboration, but also
persistent resistance, from local judges and lawyers.117 Such efforts continue today,
for instance in the Mérida Initiative, which is partly intended to professionalize Mexican court personnel and encourage “good governance” so that they can more effectively prosecute the war on drugs. In addition, ignorance of these failed precedents in legal pluralism may have helped modern-day U.S. foreign policymakers to
justify new military adventures in Afghanistan and Iraq in which a continuing assumption of U.S. legal superiority led to similar abuses, including systematic torture,
extraterritoriality, centralization, and insensitivity to local beliefs and traditions. Especially since September 11, 2001, historians and lawyers, both proponents and opponents of empire, have revived the study of boots-on-the-ground empire, specifically with an eye to “the law of empire” and its potential for what John Witt calls
“limiting the abuses that seem to come in empire’s train.”118 Legal pluralism thus
offers the possibility of interrogating (dis)continuities in the saga of U.S. empire.119
More broadly still, the role of legal pluralism in U.S. occupations in the circumCaribbean, coupled with the “imperial turn,” allows us to recast debates about the
exceptionalism of U.S. empire.120 Most historians no longer accept the mid-twentieth-century interpretation of U.S. empire—at its height during the occupations of
the first third of the century—as reluctant or aberrant in U.S. history.121 Still, for
generations, scholars have debated the “informal” nature of U.S. empire, and the
dichotomy between formal and informal may be misleading.122 The institutions that
117 The historiography of U.S. efforts at judicial reform in Latin America traces their origin only to
the 1960s: James A. Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America
(Madison, Wis., 1980); Juan E. Méndez, Guillermo O’Donnell, and Paulo Sérgio Pinheiro, The (Un)rule
of Law and the Underprivileged in Latin America (Notre Dame, Ind., 1999); and Pilar Domingo and
Rachel Sieder, Rule of Law in Latin America: The International Promotion of Judicial Reform (London,
2001).
118 For a review of such works, see John Fabian Witt, “Anglo-American Empire and the Crisis of
the Legal Frame (Will the Real British Empire Please Stand Up?),” Harvard Law Review 120 (2007):
754 –797, quotations from 756, 758. Again, however, the great majority of debates are constitutional in
nature, not juridical.
119 Engaging in this debate, without discussing the courts, are Jeremi Suri, “The Limits of American
Empire: Democracy and Militarism in the Twentieth and Twenty-First Centuries,” in McCoy and
Scarano, Colonial Crucible, 523–531; Nancy Tomes, “Crucibles, Capillaries, and Pentimenti: Reflections
on Imperial Transformations,” ibid., 532–540; and Ian Tyrrell, “Empire in American History,” ibid.,
541–556.
120 A glimpse at that debate is in Edward P. Crapol, “Coming to Terms with Empire: The Historiography of Late-Nineteenth-Century American Foreign Relations,” Diplomatic History 16, no. 4 (Fall
1992): 573–597. See also Ann Laura Stoler, “Intimidations of Empire: Predicaments of the Tactile and
Unseen,” in Stoler, Haunted by Empire, 1–21, here 8–10.
121 Such was the interpretation of Samuel Flagg Bemis, A Diplomatic History of the United States (New
York, 1965).
122 Affirming the “informal” nature of U.S. empire, among many others, are Thomas J. McCormick,
China Market: America’s Quest for Informal Empire, 1893–1901 (Chicago, 1967); Tony Smith, The Pattern
of Imperialism: The United States, Great Britain, and the Late-Industrializing World since 1815 (Cambridge,
1981), 151; Ricardo D. Salvatore, “The Enterprise of Knowledge: Representational Machines of Informal Empire,” in Gilbert M. Joseph, Catherine C. LeGrand, and Ricardo D. Salvatore, eds., Close
Encounters of Empire: Writing the Cultural History of U.S.–Latin American Relations (Durham, N.C.,
1998), 69–104; Greg Grandin, Empire’s Workshop: Latin America, the United States, and the Rise of the
New Imperialism (New York, 2006), 25; and Kramer, The Blood of Government, 16, 17. Matthew Brown,
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the U.S. government established during occupations were as formal as anything in
Africa or Asia: the Platt Amendment for Cuba, the Treaty of 1903 for Panama, the
Haitian Treaty of 1915, the Dominican military government, and various constabularies all legalized and institutionalized U.S. empire.
This empire was not informal, but rather partial: subject to remarkably little deliberation, lacking consensus even in the executive, incomplete in its design or application, initiated late or not at all, reformed and tinkered with during occupations,
and sometimes rescinded. It is notable that Washington did not set up a colonial
office, but instead ran its “insular possessions” through the Bureau of Insular Affairs.123 More germane to the present inquiry, occupiers failed to take over every
branch of government. A quick comparison of Haiti with colonies that were subject
to more direct U.S. judicial oversight—Cuba, Puerto Rico, and the Philippines—
demonstrates that they sparked less resistance. Puerto Rico had the most overbearing reform: U.S. presidents appointed all federal judges, all of whom were originally
U.S. citizens, and proceedings were recorded in English. The Philippines witnessed
a somewhat less strict overhaul. U.S. authorities kept the Spanish codes but changed
procedures, including ending trial by jury, limiting the writ of habeas corpus, and
placing U.S. judges in the majority of seats in higher courts, all in an effort to subordinate the judicial branch to the executive. Reforms in Cuba were least intrusive
but still significant: Military Governor Leonard Wood appointed Cubans to reform
their own courts. They purged the dockets of old cases, gave salaries to judges and
clerks, cracked down on perjury, appointed public defenders for the poor, and, contrary to the Philippines, reinstated trial by jury and habeas corpus.124 In all cases,
because U.S. empire proved more complete, it undertook reforms that were more
robust, but that also allowed for more flexibility.
Partialness is partly due to the short span of U.S. occupations—the East India
Company’s control over India was itself partial for decades before it expanded into
a full-bore empire, including legal pluralism—a reminder that legal pluralism may
be a good basis for comparing empires and not just colonies within the U.S. empire.125 Yet U.S. imperialism was also ideologically partial, tentative, never committed to institutional control in an integrated way that could have foreseen the irony
of legal pluralism. Perhaps no empire is perfectly integrated. But U.S. occupations
were particularly short for this ideological reason, and so a limited case for exceped., Informal Empire in Latin America: Culture, Commerce and Capital (Oxford, 2008), discusses the
concept as it relates to the British Empire. Ann Laura Stoler argued that “indirect rule” and “informal
empire,” at least in European colonialism, are “unhelpful euphemisms, not working concepts”; Stoler,
“On Degrees of Imperial Sovereignty,” Public Culture 18, no. 1 (2006): 125–146, here 136. Ian Tyrrell
speaks of “formal colonies” in addition to an “extensive informal empire,” in Reforming the World: The
Creation of America’s Moral Empire (Princeton, N.J., 2010), 2.
123 Ian Tyrrell, Transnational Nation: United States History in Global Perspective since 1789 (New
York, 2007), 139. For more on the U.S. bureaucratic empire, see McCoy and Scarano, Colonial Crucible.
124 On Puerto Rico, see Efrén Rivera Ramos, The Legal Construction of Identity: The Judicial and
Social Legacy of American Colonialism in Puerto Rico (Washington, D.C., 2001), 70; on the Philippines,
see Willis, Our Philippine Problem, 90–98; on Cuba, see Hitchman, Leonard Wood and Cuban Independence, 44 – 46.
125 Many have called British control in Africa and elsewhere “indirect rule.” See Colin Newbury,
“Patrons, Clients, and Empire: The Subordination of Indigenous Hierarchies in Asia and Africa,” Journal of World History 11, no. 2 (Fall 2000): 227–263, here 228–229; Bhat, Judiciary and Police in Early
Colonial South Kanara.
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tionalism may be made. Arguing for a partial empire does not go as far as did historians such as Robert Osgood and Ernest May, who advanced that U.S. empire was
unintentional and reluctant.126 The story of legal pluralism in U.S. occupations reveals a conscious intention to build an empire. But resistance to that pluralism also
uncovers the improvised, frayed edges of that empire.
126 Robert Endicott Osgood, Ideals and Self-Interest in America’s Foreign Relations: The Great Transformation of the Twentieth Century (Chicago, 1953), 42; Ernest R. May, Imperial Democracy: The Emergence of America as a Great Power (1961; repr., New York, 1973), 263–270.
Alan McPherson is Associate Professor of International and Area Studies at the
University of Oklahoma. He is the author of the prize-winning Yankee No! AntiAmericanism in U.S.–Latin American Relations (Harvard University Press, 2003)
and of Intimate Ties, Bitter Struggles: The United States and Latin America since
1945 (Potomac Books, 2006). He is also co-editor, with Ivan Krastev, of The
Anti-American Century (Central European University Press, 2007) as well as
editor of Anti-Americanism in Latin America and the Caribbean (Berghahn
Books, 2006) and of the upcoming Encyclopedia of U.S. Military Interventions in
Latin America (ABC-CLIO, 2013). He is finishing a study of resistance to the
U.S. occupations of Haiti, Nicaragua, and the Dominican Republic, tentatively
titled The Invaded (Oxford University Press, 2013).
AMERICAN HISTORICAL REVIEW
OCTOBER 2012