439.41 St 3/18

The Secretary of State to the British Chargé (Brooks)

Sir: Referring to your note No. 290 of April 1, 1924, with which you enclosed a memorial of claim prepared by the legal representatives of Mr. D. McPhail setting forth that he claims indemnity from the Government of the United States on account of personal injuries and financial losses suffered by him in the Dominican Republic arising from an attack made upon him by bandits September 27, 1921, I have the honor to recall to your attention that this matter [Page 687] has previously formed the subject of correspondence between the Department and your Embassy, and, as stated in the Department’s note of July 5, 1922,50 this Government considers that Mr. McPhail’s claim, if any, is against the Government of the Dominican Republic, and cognizable by the courts of that country, and in such correspondence as the Department conducted relative to the case it acted merely as the medium of transmission, and at the express request of your Embassy, in acquainting the Embassy with the views of the Dominican Foreign Office with regard to the claim.

As further stated in the Department’s note of July 5, 1922, the Dominican Foreign Office advised the American Legation at Santo Domingo that Mr. McPhail should submit his claim to the Procurador Fiscal of the Judicial District of San Pedro de Macoris.

Your Embassy replied August 16, 1922,51 that Mr. McPhail had been advised to apply to the authority mentioned, but that your Government reserved the right to press the claim through diplomatic channels if there should be a denial of justice in the courts.

It does not appear from the memorial of Mr. McPhail that he acted upon the advice of your Embassy to resort to his remedies in the Dominican courts, and it is inferable from statements contained in the memorial that he failed to take this step. Therefore, it would seem that Mr. McPhail is not at this time in a position to assert his claim diplomatically since he has not complied with the generally accepted principle that the legal remedies in the country against which a claim is made should be exhausted before diplomatic intervention is resorted to.

The foregoing statements have been based upon the possibility that Mr. McPhail may have a just claim against the Dominican Republic. So far as concerns his assertion of a claim against the Government of the United States, I beg to refer you to the position consistently taken by the Department in the previous correspondence with your Embassy regarding this case that Mr. McPhail’s claim, if any, is against the Dominican Republic.

With respect to the merits of the claim, and as bearing upon statements contained in Mr. McPhail’s memorial, the following observations may be made:

Mr. McPhail seems to imply that bandit activities in the Dominican Republic did not exist prior to the time when American troops entered the Republic, or in 1916. On this point it may be observed that in a letter addressed to the Department October 3, 1921,52 by Mr. F. A. Vicini, President of the company which owned the plantation upon which Mr. McPhail was employed at the time he suffered [Page 688] the injuries in question, Mr. Vicini referred to the bandits who committed the outrage, and said: “Bands of this nature are called in Santo Domingo ‘gavilleros’, and they operated in the country long before the American occupation and were usually formed during revolutionary times.”

As you are aware the British subject Thomas J. Steele was kidnapped by bandits on the occasion when Mr. McPhail was injured, and in a report on this matter from the American Legation at Santo Domingo dated October 9, 1921,53 the Legation said: “The Marines had been quite active around the neighborhood of the sugar estate of which Mr. Steele is manager for several weeks, and the very night he was taken they caught up with the band that had him but were unaware of this fact. In the encounter that followed, several of the bandits were wounded, but all escaped.” Referring to the leader of the band which committed the outrage in question, the Legation said: “From the time of the death of ‘Vicentico’, Nateras has been the acknowledged leader of the bandits in the East. For some time he has been, apparently, quiet.” The Legation added: “It is a very difficult matter to deal with this present condition of bandit revolution. Every sugar estate has amongst its own employees emissaries of the bandits, who are working peacefully during the day and in connection with the bandits at night. The bandits are bold and with absolutely no respect for life.”

The Navy Department advised this Department November 21, 1921,53 that during the month following the attack upon Mr. McPhail 223 bandits were captured by the United States military forces in the Dominican Republic, of whom, at the date of the letter, 105 had already been tried, convicted and sentenced by Provost Court.

In your Embassy’s note of December 21, 1921,54 the Embassy submitted statements by Messrs. Steele and McPhail of the incident in question, and in Mr. Steele’s statement he referred to the “successful efforts of the United States troops” as against the bandits, and stated that because of the information he had given the troops it would be necessary for him to leave the country, and therefore requested the British Government to support his claim for $120,000 against the Dominican Government. However, in neither of the statements is it alleged that the troops of the United States failed to afford proper protection to the plantation on which Messrs. Steele and McPhail were employed, or to the officers or employees of that plantation.

As you were advised in the Department’s note of May 10, 1924,53 the claim of Mr. McPhail was referred to the appropriate authority [Page 689] of this Government. That authority has now replied at length to the statements contained in the memorial, and I beg to set forth below a synopsis of certain portions of that reply:

The forces of the United States did not proceed to the Dominican Republic in 1915, and it was only on May 15, 1916, that they were landed in the Republic.

Mr. McPhail’s veiled assertion that banditry did not exist in the Dominican Republic before the military government was constituted is not only unfounded but preposterous. Ample evidence exists in the possession of authorities of the United States to demonstrate that banditry was rife in the Dominican Republic prior to the constitution of the military government, and that sugar estates and planters were victims of depredations by bandits. Indeed, it may be stated that the lawless acts of bandits and the inability of the Republic to suppress them was one of the main causes for the landing of naval forces of the United States. Banditry in the Dominican Republic was closely associated with the political and revolutionary movements, which perpetually disturbed the Republic, and it was customary for each new government to grant amnesty to bandits upon the conclusion of a revolution, thus, not only preventing the suppression of brigandage but countenancing its existence.

Mr. McPhail’s statement that the Dominican Government afforded protection to planters in the Republic is hardly conceivable in the light of Dominican history, since between 1899 and 1916 parts of the Republic were in almost constant revolution, and thirteen different Presidents functioned during this time, who, with but one exception, were inaugurated and deposed by revolutionists. It is unreasonable to believe that a country so affected by political and revolutionary strife could guarantee protection to planters, and if such protection were enjoyed it was not afforded by the Dominican Government but attained by the employment of other means. In this relation it may be said that a communication in the possession of authorities of the United States from a manager of one of the large sugar estates concedes that during the various revolutionary movements the Dominican Government was unable to afford any relief to the property and that protection was afforded through the efforts of a notorious bandit chief. It is common knowledge that when the American forces entered the Republic a large number of bandit leaders were carrying on operations.

Mr. McPhail’s statements that less, rather than more, protection was afforded after the advent of the United States forces, and that the estate by which he was employed was deprived of any protection from such forces, are misleading and erroneous. United States marines were frequently stationed on sugar estates between the years [Page 690] 1917 and 1921, and the properties of the sugar estates were constantly patrolled by the American forces, which action constituted a greater protection to the estates than would have been afforded by the posting of fixed guards within the enclosures of the sugar mill premises. However, the American forces could not, of course, devote their entire energies to the protection of sugar estates, and extended their efforts to protect the people of the Republic as a whole, and to this end were obliged to adopt offensive measures for the suppression of bandits, the primary necessity of which was to maintain fresh troops in the field of operation to pursue bandits unceasingly.

The rugged and inaccessible character of the country was a great obstacle to military operations and largely rendered it difficult to keep in constant touch with the bandit groups, and this was especially the case in the Provinces of Seibo and Macoris, the territory of which constituted a principal field of bandit operations and comprised within its borders the rich sugar cane belt and other sources of wealth which were tempting to the bandits.

The military government was not delinquent in affording reasonable protection, and did not fail in taking adequate measures to suppress banditry. From January 10, 1917, to February 25, 1919, the First Battalion, Third Regiment, continuously occupied the Provinces of Macoris and Seibo and constantly maintained patrols in the field. The record of this Battalion for the period mentioned shows that its detachments covered thousands of miles of territory and captured large quantities of firearms, had over a hundred contacts with the bandit groups, and inflicted losses on them estimated at 350 killed and wounded.

February 26, 1919, the First Battalion was relieved by the Fifteenth Regiment, consisting of approximately 800 officers and men, which was assigned to garrison the Provinces of Macoris and Seibo, and devoted its entire attention to the suppression of banditry and restoration of peace and order within these two Provinces. During 1919, 1920 and 1921 it conducted over 600 patrols resulting in about 270 bandit contacts, and losses to the bandits estimated at 600 killed and wounded. The Regiment maintained from 10 to 14 permanent outposts within these Provinces, and continuously sent patrols and detachments from these outposts, keeping the entire territory under close surveillance.

The forces of the United States in the Dominican Republic never received repeated requests from the sugar estates for more protection. Such requests as were received were given every consideration possible under the circumstances, and every resource at the disposal of the military government was fully utilized to destroy banditry.

The Guardia Nacional was organized April 17, 1917, and was a variable quantity fluctuating with the amount of available national [Page 691] funds, but was not fully established as a definite fixed force until October 20, 1922.

After the abduction of Mr. Steele every means at the disposal of the military government was set in operation to effect his immediate release, and the pressure exerted against the bandits became so strong that they were compelled to release Mr. Steele September 30, 1921, or two and one-half days after his abduction.

Banditry in the Eastern district was completely suppressed in May 1922, practically seven months after the abduction of Mr. Steele, and as a result of the persistent and continuous operations of the Marine forces of the United States. Since that time the Dominican Republic has enjoyed a state of tranquillity never before realized, and which is reflected in the improvement of conditions in general.

Accept [etc.]

Charles E. Hughes