839.51/2150

The Secretary of the Navy (Daniels) to the Secretary of State

Sir: Referring to your letter of 14 October 1920, (So 839. 51/2132), relative to the relations between the Government of the United States and the Dominican Republic, and referring especially to the following statement contained therein:—

“In this connection it may be said that it is the understanding of this Department that the Military Government in force in the Dominican Republic should be regarded as administering affairs for the Government of that Republic.”

I have the honor to invite consideration to the serious situation that develops in regard to the Dominican Government as now administered in case the attitude of the State Department, as expressed in the letter, be continued. In a letter from the Department of State under date of 31 July 1918,12 the Department expressed a similar thought in regard to the administration of Dominican affairs by the Military Governor in the Dominican Republic. It was assumed by the Navy Department that the statement in the letter of 31 July 1918, was one of general application, which had in view the thought that the Military Government instituted by the United States, was administering the Dominican Government for the Dominican people in the absence of the usual duly chosen Dominican officials. The Department of State’s letter of 14 October 1920, however, appears to indicate that the present military government in the Dominican Republic is being carried on by virtue of authority derived from the people of the Dominican Republic, acting in their sovereign capacity. This Department has [Page 139]not been of that opinion and does not consider that the military government is so functioning. In support of this opinion, there is quoted in its entirety the analysis of the situation submitted to me at my request by the Judge Advocate General of the Navy:—

“[1.] The existing occupation of Santo Domingo (the titular national designation of which is The Dominican Republic) by armed forces of the United States, and the military government incident to and necessitated by such military occupation, were instituted in pursuance of a proclamation issued, published, proclaimed, and officially gazetted at Santo Domingo City, D. E., under date of November 29, 1916, by Captain H. S. Knapp, U. S. Navy, Commander, Cruiser Force, United States Atlantic Fleet.

[2.] On account of its importance in relation to the ensuing discussion the proclamation is quoted in full immediately herebelow:

Proclamation

Official Gazette No. 2758

Whereas: A treaty was concluded between the United States of America and the Republic of Santo Domingo on February 8, 1907, Article III of which reads:

‘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 would at such altered rates of duties have been for each of such two years in excess of the sum of $2,000,000 United States gold;’ and,

Whereas: The Government of Santo Domingo has violated the said Article III on more than one occasion; and,

Whereas: The Government of Santo Domingo has from time to time explained such violation by the necessity of incurring expense incident to the repression of revolution; and,

Whereas: The United States Government, with great forbearance and with a friendly desire to enable Santo Domingo to maintain domestic tranquillity 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 tranquillity 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 the domestic tranquillity 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 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 [Page 140]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: but cases to which a member of the United States forces in Occupation is a party, or in which are involved contempt or defiance of the authority of the Military Government, will be tried by tribunals set up by the Military Government.

All revenue accruing to the Dominican Government, including revenues hitherto accrued and unpaid,—whether from custom duties under the terms of the Treaty concluded on February 8, 1907, the Receivership established by which remains in effect, or from internal revenue—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.

I call upon the citizens of, and residents and sojourners in Santo Domingo, to cooperate with the Forces of the United States in Occupation to the end that the purposes thereof may promptly be attained, and that the country may be restored to domestic order and tranquillity, and to the prosperity that can be attained only under such conditions.

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 Domi[ni]can laws in so far as they do not conflict with the purposes for which the Occupation is undertaken.

H. S. Knapp,
Captain, U.S. Navy, Commander, Cruiser “Force”, United States Atlantic Fleet

U.S.S. “Olympia Flagship.
Santo Domingo City, D.R.,
November 29, 1916.

3. The files of this Department show definitely and conclusively that this proclamation was formulated and prepared by and at the instance of the Department of State, Captain Knapp collaborating in his capacity of the military commander destined to assume the duty of executing its provisions; that it was approved by the Department of State and, after certain amendments in the original draft suggested by himself, approved and directed to be issued by the President; that it was delivered to Captain Knapp in the city of Washington and by him taken to Santo Domingo.

4. It would seem to be well established that the proclamation and the consequent military occupation and military government of Santo Domingo by the forces under the command of Captain Knapp and his successors in chief command were, and have continued to be, by authority of the Government of the United States. Otherwise, there could be no warrant or justification for this proclamation, military occupation, and military government, which acts, by their very nature, could have no other ground that [than] the ‘authority of the Government of the United States’ to stand upon.

Also it follows logically and irresistibly, I think, that the official acts and orders of the Military Governor, or Military Commander, [Page 141]in the execution of the duties of his high office, are initially and, unless they be specifically disapproved or repudiated by our Government, are definitively, ‘by authority of the Government of the United States.’

5. It does not appear that either of the Executive Orders of the Military Governor of Santo Domingo in question, No. 193, dated August 2, 1918,13 and No. 272, dated March 13, 1919,14 have been so specifically disapproved or repudiated. On the contrary, both were duly formulated and promulgated and officially gazetted in the regular and customary manner; both have been printed in the official ‘Collection of Executive Orders, Dominican Republic,’ the former on page 353, volume of 1918, and the latter on page 438, volume of 1919; and both have been, at least theoretically, approvedly in force since their promulgation.

6. Furthermore, it is beyond question that Executive Order No. 193, of which it is said on page 2 of the State Department’s letter attached hereto15 that it ‘purports to have been issued in this city (Washington) August 2, 1918, “by authority of the Government of the United States,”’ was, as a matter of fact, so issued and by that authority. Rear Admiral Knapp, Military Governor of Santo Domingo by competent appointment and commission, was in his proper person present in Washington on that date and for some days prior thereto on duty in connection with the administration of the Military Government under his charge, in constant consultation with the Department of State, the political department of the Government entrusted with foreign affairs. His contemplated action in relation to the matter of the executive order under consideration was the subject of conference with the Department of State, and his final action, the promulgation of the said executive order, was, without any doubt whatsoever, with the approval of that Department which, in such matters, embodies the ‘authority of the Government of the United States.’ Under the circumstances there was not, nor could have been, any assumption of unwarranted authority on the part of the Military Governor. He was the mouthpiece of the Government of the United States speaking only by authority of the Government.

7. The fact that the Military Governor of Santo Domingo, Rear Admiral Knapp, was absent from the titular seat of his Government when he issued Executive Order No. 193 does not in any manner or degree vitiate or invalidate that order. There is abundant precedent and practice to dispel any doubt on that point should such doubt arise in the mind of any one concerned. It is no secret that Rear Admiral Knapp was actually legally advised on this point in this particular instance.

8. When the military occupation of Santo Domingo was proclaimed and the consequent military government came into force all the functions of government were taken over and lodged in the military government for administration under the orders of the military governor. Ordinarily such assumption of the functions of government in a foreign state is regarded as an act of war. This matter, however, has not been presented to this office for consideration [Page 142]and is, therefore, not dwelt upon herein. Suffice it to say-that the Military Government of Santo Domingo, set up ‘by authority and direction of the Government of the United States,’ was established in fact.

9. Without entering into the history of the occupation or attempting the recital of details relating to the efforts of the Military Governor to have Dominican officials continue to assist in the governmental administration of the Dominican Republic, it may be said that, from the beginning of the occupation the military government has been the Government of the Dominican Republic. There has been no other government of the Republic since the date of the occupation.

10. But it is manifest that in all of this the Military Government has functioned, and continues to function, not as an independent, self-created agency with arbitrary, unlimited powers, but as the active agent of the Government of the United States engaged in the administration of Dominican affairs both foreign and domestic. The Military Government, actually operating through the official persons of members of the armed forces (Navy and Marine Corps) of the United States, possesses no power or authority not reviewable by the Government of the United States personified by the President, who, himself, customarily speaks concerning such matters through the medium of the Department of State. Thus, as shown hereinbefore, the proclamation of occupation dated November 29, 1916, was, before its promulgation, visaed by the Department of State and specifically approved by the President; and was issued by his order. Also, the Military Governor’s Executive Order No. 193, of August 2, 1918, was sanctioned by the State Department, as for the President, before its issuance.

11. The burden of the arguments advanced in the letter from the State Department herewith seems directed towards the assumption of the position that the Government of the United States has no (further) responsibility in the matter of requiring that the provisions of Executive Order No. 193 be carried out, but that the Government of the Dominican Republic (which the Department of State avers is the Military Government) has that responsibility inherently. This position might be considered as well taken if it were established that the Military Government is functioning as a sovereign independent entity regardless of the actual overlordship of the Government of the United States. Under such conditions—which I do not admit as existing—the Military Government, operating under the laws of war, which are the basic laws governing true military government, could doubtless impress its will, by force if necessary, upon the General Receiver of Customs. As mentioned heretofore, however, the Military Government, in the existing circumstances of military occupation, has no such independent authority. Anticipated action was provided for in the express terms of Executive Order No. 193 wherein ‘the consent of the Government of the United States’ is recorded as a granted necessary condition, this consent having been obtained by the Military Governor, Rear Admiral Knapp, prior to the issuance of the order.

12. For the Government of the United States, in the person of the Department of State to decline now to require the fulfillment [Page 143]of the terms of that order by the General Receiver of Customs, himself an appointee of the Government, would be to introduce most serious complications involving among other things a charge of bad faith, and to throw the Military Government back upon the necessity of exercising powers which properly it does not possess, in order to maintain unimpaired the good name and good faith of the United States of America.

13. On pages 7 and 8 of the State Department’s letter under consideration the following conclusion is set forth:

‘Finally, it is believed that the Government of the United States is without responsibility for the payment and retirement of the 1918 bonds. This bond issue is not contemplated in any Convention between the United States and the Dominican Republic, and the General Receiver of Dominican Customs is given no authority by treaty over funds to be collected for the payment of these bonds. Therefore, the Department of State seems to be entirely lacking in authority to issue instructions to the General Receiver regarding this matter, which would seem to be one to be dealt with wholly by the Government of the Dominican Republic’

14. As to the views expressed in this conclusion I would say that I am unable to concur in the belief recorded in the first sentence thereof.

If the Government of the United States, which exercises a paramount oversight of the whole situation involving the presence of its armed forces in Santo Domingo, is without responsibility for the payment and retirement of the 1918 bonds, then it is perfectly proper and pertinent, indeed it is compelling, to inquire upon whom, or upon what agency, does the exigent responsibility rest.

True, the Government of the United States has no responsibility in this matter under the Treaty of 1907; and, as is well said in the next succeeding sentence of the quoted paragraph, ‘This bond issue is not contemplated in any Convention between the United States and the Dominican Republic, and the General Receiver of Dominican Customs is given no authority by treaty over funds to be collected for the payment of these bonds.’ But I do not understand that elsewhere than in this paragraph is there any claim or intimation that the 1918 bond issue is in any way whatever contingent upon the provisions of the Treaty of 1907. Decidedly otherwise, the 1918 bond issue was authorized by the Government of the United States in its approval of Executive Order No. 193, issued by its agent, the Head of the Military Government, quite without reference to any treaty. Furthermore, the Receivership has been definitely confirmed and continued, for the prosecution of its duties during the indefinite period of occupation, by the provisions of the twelfth paragraph of the Proclamation of Occupation. Reference to the treaty of 1907 in this connection seems scarcely even apposite.

Nevertheless, the obligation and responsibility of the Government of the United States in relation to the faithful performance of the terms of this order and the complete maintenance of the integrity of the bond issue are, it would appear, hardly susceptible of question.

15. As to the functions and prerogatives of the General Receiver, these attributes extend beyond the limits described in the treaty. While he ‘is given no authority by treaty over funds to be collected for the payment of these bonds,’ he is, very specifically given such authority under the provisions of paragraph 9 of Executive Order [Page 144]No. 193, ‘Issued at Washington, D.C., U.S.A., by authority of the Government of the United States, 2 August, 1918.’ That paragraph reads as follows:

‘9. The General Receiver of [Dominican] Customs is hereby authorized to make monthly deductions, commencing January 1, 1918, from the customs receipts of the Dominican Republic, to cover the amounts referred to in the preceding paragraph, and in accordance with the official advice thereof furnished him by the Contaduria General de Hacienda, and immediately to deposit said amount[s] with the Designated Depositary for the Dominican Government in a special account entitled “Dominican Republic 5 per cent bond issue 1918;” and such monthly deductions and deposits shall be regularly continued by the General Receiver of Dominican Customs until all of the bonds herein provided for shall have been redeemed and paid.’

Who, other than the Government of the United States, shall require the General Receiver to exercise this specifically conferred authority?

16. In the concluding sentence of its letter the State Department expressly disclaims the right to require the exercise of authority by the General Receiver of Customs and implies that the Government of the Dominican Republic should take the requisite action in the matter.

As an immediate consequence of such conclusion there arises the question, ‘What is the actual status of the Dominican Republic?’

In reply to this question I would present my opinion that—

(a)
The Dominican Republic may be described as not altogether extinguished but temporarily suppressed and, for the time being, in a state of suspended animation.
(b)
There is no existing Government of the Dominican Republic in the ordinary acceptation of the words, i.e., a government of the Dominicans, by the Dominicans, for Dominicans, actually functioning.
(c)
The governmental attributes of the Dominican Republic are, for the present, merged or submerged in the Military Government of Santo Domingo, an agency of the Government of the United States, deriving its powers therefrom and functioning solely ‘by authority of the Government of the United States.’
(d)
Under existing circumstances, therefore, in all that relates to the administration of the national governmental affairs of the Dominican Republic, the Government of the United States and the Government of the Dominican Republic are in fact synonymous.

17. With particular reference to the specific inquiry in the first endorsement hereon it is my conclusion, to which I have led up at some length, that the Military Government by armed forces of the United States in the Dominican Republic should not be regarded as ‘administering affairs for the Government of that Republic’ by virtue of any authority derived from the sovereign people of Santo Domingo, but as administering the affairs of the Government of that Republic for, on account of, and by authority of, the Government of the United States whose agent it, the Military Government, is; the Government of the United States having taken over in their entirety the Governmental functions of Santo Domingo, the Dominican Republic.”

Sincerely yours,

Josephus M. Daniels