Papers Relating to the Foreign Relations of the United States, 1918

File No. 839.00/2099

Memorandum of the Office of the Solicitor for the Department of State

Washington, March 18, 1918.

RELATIONSHIP OF THE MILITARY OCCUPATION AND GOVERNMENT IN THE DOMINICAN REPUBLIC TO THE DOMINICAN GOVERNMENT

The question has arisen as to whether it is necessary for the Government of the United States to conclude an agreement with the Military Government in the Dominican Republic, installed by the authority of the United States, to cover a subject which is provided for by Article 3, of the treaty of 1907, between the United States and the Dominican Republic. In other words, if the existing treaty provisions be held to be now in effect as between the United States and the Military Government mentioned, it apparently becomes unnecessary to conclude a new agreement on the subject in question, which is that of modification of the tariff duties of the Dominican Republic.

The present intervention of the United States in the affairs of the Dominican Republic took place formally on November 29, 1916, but certain previous events are of interest and importance in reviewing the question under consideration.

The treaty of 1907, before mentioned, was entered into as expressed therein, in order to arrange for a settlement of the financial difficulties of the Dominican Republic, and provides:

III. Until the Dominican Republic has paid the whole amount of the bonds of the debt its public debt shall not be increased except by previous agreement between the Dominican Government and the United States. A like agreement shall be necessary to modify the import duties, it being an indispensable condition for the modification of such duties that the Dominican Executive demonstrate and that the President of the United States recognize that, on the basis of exportations and importations to the like amount and the like character during the two years preceding that in which it is desired to make such modification, the total net customs receipts for each of such two years, at such altered rates of duties, would have been in excess of the sum of $2,000,000 United States gold.

Despite the interest taken by the United States in Dominican financial affairs, under the treaty provisions above quoted, it appears that during the year 1915, and before, general conditions in the Dominican Republic were bad. There was injudicious expenditure of money, an increase in the public debt, and maladministration. Consequently, on December 17, 1915 [September 17, 1915],¹ the American Minister to the Republic was instructed by the Department to endeavor to obtain the conclusion of a new treaty, providing for a financial adviser, to be appointed by the United States, and a constabulary officered by Americans, for the settlement by arbitration of pecuniary claims, and the survey of the Republic for purposes of taxation, and for the right of the United States to intervene in the Republic for the maintenance of a government adequate to protect life, liberty, and property. The Minister was further instructed that if he should find it impossible to conclude such a treaty, he should present a note containing the interpretation of the Government of the United States, of said Article 3 of the treaty of 1907, as giving the United States the right to appoint a financial adviser to the Dominican Republic, and to organize a constabulary to be commanded by American officers, in place of the existing military organization.¹

The occasion having arisen, such a note was presented on November 9 [19], 1915,² which was replied to by the Minister of Foreign Affairs, denying that such right of intervention existed, and refusing to take the desired action.³ Thereafter matters went from bad to worse in the Republic, until on or about May 2, 1916, revolutionary forces gained possession of the Capital. On May 5, 1916, forces were landed from the U. S. S. Prairie, and on May 6 the President of the Republic requested the United States to take the Capital,⁴ but the next day canceled this request and resigned his office.⁴ Notwithstanding such cancelation, the forces mentioned occupied the Capital on or about the day last mentioned.

Following the resignation of the President, the Council of Ministers took charge of the executive power, supported by the forces of the United States, until some weeks thereafter, when the Dominican Congress elected Doctor Francisco Henriquez, Provisional President, whose authority was never recognized by the Government of the United States.

Under date of June 20, 1916, Admiral Caperton, “the Commander in Chief of forces of the United States in Santo Domingo,” issued a proclamation stating that such forces had entered the Republic “for the purpose of supporting the constitutional authority, and of putting a stop to revolutions and consequent disorder impeding the progress and prosperity of the country.”⁵ The proclamation further stated that it was the intention to occupy immediately other “towns of the Republic” and that “it is not the intention of the United States Government to acquire, by conquest, any territory in the Dominican Republic, nor to attack its sovereignty, but our troops will remain here until all revolutionary movements have been stamped out, and until such requirements as are deemed necessary to insure the future welfare of the country have been initiated and are in effective operation.”

During the latter part of June 1916 the Council of Ministers was officially advised by the American Minister that the Government of the United States had decided to take charge of the collection and disbursement of all funds of the Dominican Government, placing these matters in the hands of the General Receiver, and on August 17 [18?], 1916, the latter official was instructed to suspend payment of all funds to the Dominican Government until an understanding could be reached as to an interpretation of certain articles of the treaty of 1907, or until the Government of Doctor Henriquez was recognized by the United States.⁶ This suspension of payment continued until after the formal intervention of the United States. (See memorandums prepared by the Latin American Division and Minister Russell.)¹

On November 26, 1916, the President of the United States authorized the Secretary of State to give the necessary instructions to place the Dominican Republic under military occupation and declare martial law, and approved a recommendation made by the Secretary, upon a memorandum of the Latin American Division, stating that the action in question should be based “on the interpretation which the United States has given to the Dominican convention of 1907, and also upon the present unsettled conditions in the Republic.” The President also approved, with a trifling exception, a draft proclamation to be, issued by Captain Knapp of the Navy, who was to be placed in charge of the Military Government.²

Under date of November 27, 1916, the Secretary of the Navy was requested to take such action as might be necessary, to put into effect the policy just outlined.²

Captain Knapp’s proclamation, issued November 29, 1916, contains, among others, the following provisions:³

Whereas: The Government of Santo Domingo has violated the said Article 3 (of the treaty of 1907) on more than one occasion; and …

Whereas: The United States Government, with great forbearance and friendly desire to enable Santo Domingo to maintain domestic tranquility and observe the terms of the aforesaid treaty, has urged upon the Government of Santo Domingo certain necessary measures which that Government has been unwilling or unable to adopt, and

Whereas: In consequence domestic tranquility has been disturbed and is not now established, nor is the future observance of the treaty by the Government of Santo Domingo assured; and

Whereas: The Government of the United States is determined that the time has come to take measures to insure the observance of the provisions of the aforesaid treaty by the Republic of Santo Domingo and to maintain domestic tranquility in the said Republic of Santo Domingo necessary thereto:

Now, therefore, I, H. S. Knapp, Captain, United States Navy, Commanding the Cruiser Force of the United States Atlantic Fleet, and the armed forces of the United States stationed in various places within the territory of the Republic of Santo Domingo, acting under the authority and by the direction of the Government of the United States, declare and announce to all concerned that the Republic of Santo Domingo is hereby placed in a state of Military Occupation by the forces under my command, and is made subject to Military Government and to the exercise of military law applicable to such occupation.

This military occupation is undertaken with no immediate or ulterior object of destroying the sovereignty of the Republic of Santo Domingo, but, on the contrary, is designed to give aid to that country in returning to a condition of internal order that will enable it to observe the terms of the treaty aforesaid, and the obligations resting upon it as one of the family of nations.

Dominican statutes, therefore, will continue in effect in so far as they do not conflict with the objects of the Occupation or necessary regulations established thereunder, and their lawful administration will continue in the hands of such duly authorized Dominican officials as may be necessary, all under the oversight and control of the United States Forces exercising Military Government.

The ordinary administration of justice, both in civil and criminal matters, through the regularly constituted Dominican courts will not be interfered with by the Military Government herein established: …

All revenue accruing to the Dominican Government … shall be paid to the Military Government herein established which will, in trust for the Republic of Santo Domingo, hold such revenue and will make all the proper legal disbursements therefrom necessary for the administration of the Dominican Government, and for the purposes of the Occupation. …

The Forces of the United States in Occupation will act in accordance with military law governing their conduct, with due respect for the personal and property rights of citizens of, and residents and sojourners in, Santo Domingo, upholding Dominican laws in so far as they do not conflict with the purposes for which the Occupation is undertaken.

Under date of December 14, 1916, the American Minister at Santo Domingo telegraphed the Department in part, as follows:

If the Military Government continues, the status of Legation must be clearly defined. From the fact that I have returned, Dominicans are convinced that their sovereignty is not imperilled. Knapp is an excellent man for the situation and he has always conferred with me, and there is no friction whatever, but the Department will readily understand my position.

In reply the Department telegraphed the Minister, on December 29 [20], 1916:¹

Position of Legation should be practically same as before proclamation of Military Government, and it should be understood that it is civil representative of American Government in Santo Domingo, and will advise on all points with Military Government, which is carrying on the government for the Republic.

Under date of April 27, 1917, the Navy Department forwarded a copy of an order of Captain Knapp dated April 7, 1917, to the Commander, Second Provisional Brigade, United States Marines, in which the following language was used:

A state of war between the United States and Germany has been declared by Congress. Inform all posts under your command and take all military precautionary steps demanded by the situation.

The Germans and their allies in the Dominican Republic will be kept under closest observation. They may not, however, be interned by reason of the treaty of engagements between the United States and the German Empire, and of the further fact that the attitude of the Dominican Government should be that of a neutral, in so far as the existing circumstances of the Military Government permit.

On August 8, 1917, the Navy Department forwarded a copy of the Annual Report of the Military Government of the Dominican Republic “from date of proclamation, November 29, 1916, to June 30, 1917.” The report contains the following statements:²

After the issuance of the proclamation of the Military Government, I waited for some days to see if the members of the Provisional Government would in any way cooperate with the Military Government in carrying on the ordinary administration of affairs. The hope I had in this direction proved to be unfounded. … It was an evident case of desertion (by the officials of the Provisional Government). Under the circumstances, as the affairs of Government had to go on under intelligent administration, I placed the several departments of the Dominican Government in charge of officers under my command. … This action was forced upon me by the attitude of the members of the Dominican Government. It did not appear possible to get Dominicans of the proper caliber who would accept these high administrative offices, for they were afraid of the criticism they would receive from their own people. …

I therefore, on January 2, suspended the Congress and likewise suspended from office senators and deputies whose terms had not expired.

I refused to recognize it (the new Constitution) and the calls for election that were issued in accordance with its provisions.

A postal convention has been concluded (by the Military Government) between the Dominican Government and the United States.

I caused the Department of Foreign Relations of the Dominican Government to cancel the exequaturs of German consuls and consular agents.

In the administration of Dominican Government affairs, it has been necessary from time to time to issue executive orders.

Executive Order No. 15 of December 29, 1916, has the following preamble:

In view of the fact that a large floating indebtedness has been incurred by the Dominican Republic without consent of the United States, and so in contravention of the American-Dominican Convention concluded February 8, 1907, and in view of the imperative necessity of administering the affairs of the Dominican Republic under the Military Government, and meeting its current obligations from current income, without incurring new indebtedness except as stipulated in the aforesaid American-Dominican Convention of February 8, 1907, and for the purpose of protecting alike all the creditors of the Dominican Republic, it is hereby ordered.

Order No. 20 suspends until further notice the office of Dominican Minister to the United States “as the existence of a Military Government in Santo Domingo renders unnecessary” the presence of such officer in Washington.

Order No. 53 requires “all salaried Consular officers of the Republic abroad” to account monthly for fees.

It seems clear that the military forces of the United States are occupying the Dominican Republic as the result of intervention on the part of the United States in the affairs of that Republic, based in part, as seen, upon the failure of the Republic to live up to its treaty obligations. Whether such intervention is, or is not, “of right” as that term is used in international law, in connection with interventions of this character, is not deemed to be pertinent to the purposes of this memorandum. In any event, international law recognizes as admissible, certain cases of intervention, which are not as “of right.”

So far as concerns relations of the Military occupation and Government to the Dominican Government, it may be useful to consider the somewhat analogous case of the intervention of the United States Government, in 1906, in the affairs of Cuba, which intervention was, of course, “of right,” granted by treaty.

In his proclamation announcing the establishment of a Provisional Government in Cuba, under such intervention, Provisional Governor Taft said:

In so far as is consistent with the nature of a provisional government established under authority of the United States, this will be a Cuban government conforming, as far as may be, to the constitution of Cuba. The Cuban flag will be hoisted as usual over the government buildings of the island. All the executive departments and the provincial and municipal governments, including that of the city of Habana, will continue to be administered as under the Cuban Republic. The courts will continue to administer justice, and all laws not in their nature inapplicable by reason of the temporary and emergent character of the Government will be in force. ( Foreign Relations, 1906, part I, page 491.)

In decree No. 5 of October 3, 1906, it is set forth that—

• First, The diplomatic representatives of the Republic of Cuba in foreign countries are confirmed in their respective positions and they shall continue in the discharge of their duties in representation of the Republic of Cuba under the provisional administration of the United States.
• Second. The provisional government recognizes the foreign diplomatic representatives accredited to the Government of the Republic of Cuba, without the necessity of the formalities or any other steps for the change, and shall continue to maintain with the same, through the Department of State, the diplomatic relations. ( Ibid.)

On October 13, 1906, Governor Magoon proclaimed that as Provisional Governor he would—

exercise the powers and perform the duties contemplated and provided for by the third article of the appendix to the constitution of Cuba, for the preservation of Cuban independence and for the protection of life, property, and individual liberty. ( Ibid., page 494.)

As seen above, the proclamation of November 29, 1916, issued by Captain Knapp, bases the action of intervention primarily upon the violation by the Dominican Republic of Article 3 of the treaty with the United States, asserts the determination of the United States to take measures to insure the observance of the treaty provisions, and states that the military occupation is undertaken with no object of disturbing the sovereignty of the Dominican Republic; that Dominican statutes will remain in force so far as they do not conflict with the purposes of the occupation, and be administered by duly authorized Dominican officials; that the ordinary administration of justice will not be interfered with, and that revenues received by the Military Government will be held in trust for the Dominican Republic, and disbursed “for the administration of the Dominican Government.”

Furthermore, as above set forth, the Department has telegraphed Minister Russell that the Military Government is “carrying on the Government for the Republic”; Captain Knapp has proclaimed that in the existing World War “the attitude of the Dominican Government should be that of a neutral”; the Military Government for the Dominican Government has concluded a postal convention with the United States, and the terms and language of various executive orders show that the Military Government considers that it is the Dominican Government, including the said order of December 29, 1916, which expresses determination of the Military Government not to incur any indebtedness except as stipulated in the convention of 1907.

It therefore seems that in the occupation of the Dominican Republic the American forces constituting the Military Government are following the apparent example set by the Provisional Government in Cuba in 1906, viz., of representing for the time being the Government of the occupied country, and, generally speaking, of respecting the existing laws of the country. In other words, these interventions, as judged by the expression and actions of the Government of the United States and its military forces in occupation, seem to be of the nature referred to by Hall (International Law, 7th edition, page 293), when he states that: “In the case, moreover, of intervention in the internal affairs of a state … and it is frequently carried out in the interest of the Government” of the invaded state.

Authority of international law as to the conduct to be observed by a military occupant following the act of intervention in the internal affairs of a country appears to be lacking, unless such authority may be derived by analogy from the law bearing upon the case of military occupation of territory during war, as, for example, from the following provisions of Articles 43, 48 and 55 of the Hague convention of 1907, on the laws and customs of war on land:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, so far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. (Article 43.)

If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the state, he shall do so, so far as possible, in accordance with the rules of assessment and incidence in force, and shall, in consequence, be bound to defray the expenses of the administration of the occupied territory to the same extent as the legitimate government was so bound. (Article 48.)

The occupying state shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile state and situated in the occupied country. It must safeguard the capital of these properties and administer them in accordance with the rules of usufruct. (Article 55.)

With respect to the authority of a military occupant in time of war, Oppenheim says:

But, although as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, he is not the sovereign of the territory, and therefore has no right to make changes in the laws or in the administration except those which are temporarily necessitated by his interest in the maintenance and safety of his army and the realisation of the purpose of war. On the contrary, he has the duty of administrating the country according to the existing laws and the existing rules of administration. (International Law, 2d edition, volume 2, page 211.)

The doctrine laid down by Oppenheim seems to find support in general in the cases of New Orleans v. Steamship Company, 20 Wallace, 387 (quoted with approval in Dooley v. U. S., 182 U. S. 222–231), and in orders of President McKinley to the Secretary of War with relation to the first American occupation of Cuba, dated May 19 and July 18, 1898, and to be found respectively in Richardson’s Messages and Papers of the President (edition of 1896–1899, volume 10, page 208), and in Correspondence relating to the War with Spain¹ (volume 1, page 159).

If, therefore, a military occupant in time of war is bound to respect the laws in force, so much more, it would seem, does such an obligation rest upon a military occupant when there is no state of war, and especially with regard to existing treaty obligations. In this connection, it is said by Westlake (International Law, 2d edition, part 2, page 29) with respect to armed intervention when “the party intervened against is in possession of the government,” that “here also, therefore, there will not be a state of war with the usual abrogation or suspension of treaties as its effect.”

Of course, it can not properly be contended that the military occupation of the Dominican Republic by forces of the United States has brought about a general abrogation of the treaties to which the Dominican Republic is a part. In this connection reference may be made to the situation existing in Madagascar in 1896 when the French Government took possession of the Island under a declaration of prise de possession, which was notified to the powers, who, however, did not draw the conclusion that thereby their treaties with Madagascar were abrogated. ( Foreign Relations, 1896, pages 130 et seq.)

In view of all the foregoing, it would seem that the Military Government in force in the Dominican Republic must be regarded as administering affairs for the Government of that Republic, and in any event, that the provisions of the treaty of 1907 between the United States and the Dominican Republic must be considered to be in present force and effect, so that if the Military Government desires to modify the tariff duties of the Republic, it should proceed as provided for in Article 3 of that treaty.

J. R. B[aker]

1. Foreign Relations, 1915, p. 321.
1. Foreign Relations, 1915, p. 325.
2. Ibid., p. 333.
3. Ibid., p. 337.
4. Ibid., 1916, pp. 224–25.
4. Ibid., 1916, pp. 224–25.
5. Ibid., p. 231.
6. Ibid., p. 252.
1. Not printed. File Nos. 839.00/1896, 1941.
2. Foreign Relations, 1916, p. 242.
2. Foreign Relations, 1916, p. 242.
3. Ibid., p. 246.
1. Foreign Relations, 1916, p. 249.
2. For extracts from this report, see op. cit., 1917, pp. 709 et seq.
1. Correspondence relating to the War with Spain and Conditions Crowing Out of the Same, including the Insurrection in the Philippine Islands and the China Relief Expedition, between the Adjutant-General of the Army and Military Commanders in the United States, Cuba, Porto Rico, China, and the Philippine Islands, from April 15, 1898, to July 30, 1902 (Washington, Government Printing Office, 1902).