by Julie Greene
Legal precedents in the United States and the demands of the construction project had the greatest influence over the new judicial system, but it was also shaped by the Spanish Empire, by Colombian law, by tensions between Colombia and Panama, and by U.S. officials’ experience with their new colonial acquisitions in the Philippines and Puerto Rico. The Canal Zone judiciary therefore reveals how judicial traditions, precedents, and personnel flowed across the boundaries of diverse nation-states. When the United States took occupation of the Canal Zone, the laws in force were effectively those of Colombia, since Panama as a nation-state was too young to have established its own legal code. Colombia’s legal system derived originally from the civil law of Spain. After they won independence in 1819 from Spain, Colombians revised their nation’s legal code and moved it closer to legal traditions prevalent in the Anglo-American world. Nonetheless, when the United States began its occupation of the isthmus in 1904, the laws of Colombia still reflected Spain’s judicial system.5
Nor did the United States shift quickly or decisively away from the laws of Panama and Colombia once occupation began. Roosevelt declared in a 1904 executive order that laws already operating on the isthmus would remain in force until amended or annulled by the ICC. Throughout the construction era, Colombian and Panamanian law remained central to the Zone’s judicial system. In the summer of 1912, Frank Feuille, who headed the Canal Zone’s Department of Law, complained that the Zone’s government consisted of a combination of Colombian and Panamanian laws plus presidential executive orders and ICC ordinances. The Colombian laws, he noted, are “spread throughout a number of books and many of them are inaccessible except to the very few persons who possess a Colombian law library.” He recommended an overhaul of Canal Zone law both to simplify administration and to reduce costs.6
Because of the urgent need for absolute labor discipline, from early on American officials shaped law and order in the Canal Zone with efficiency in mind. As part of his 1904 executive order, Roosevelt began to reshape the legal structure of the Zone so that it would reflect American jurisprudence while simultaneously reinforcing the ICC’s emphasis on maximizing every resident’s productivity. Roosevelt declared that “certain great principles of government” would have force in the Zone, by which he meant some of the Bill of Rights. He combined this validation of the Bill of Rights with an ominous proviso giving the ICC sweeping powers of deportation, which in essence negated much of the Bill of Rights. The ICC could deport anyone who might “create public disorder, endanger the public health, or in any manner impede the prosecution of the work of opening the canal.” This specifically included “idiots,” the insane, epileptics, beggars, felons, anarchists, and those seeking to incite insurrection.7
In the years to come, the ICC annulled or amended dozens of acts, gradually bringing the law of the Zone closer to U.S. common law. In particular the ICC issued in 1904 a penal code and a code of criminal procedure that departed significantly from those of Panama (officials used the codes of the state of California as their model), although the Zone’s civil law would remain essentially Panamanian until a major revision occurred in the 1930s. Thus lawyers and judges in the Canal Zone had to sort through many judicial traditions as they did their work during the construction era and well into the mid-twentieth century.8
The judges who presided over the Zone embodied the hybrid character of its legal culture. The first circuit judge appointed in the Zone was Osceola Kyle, a white Alabaman. Kyle had lobbied hard to win the job, writing Taft with endorsements from prominent Alabama residents, including Booker T. Washington. As the only judge in the Zone during those early months, Kyle was responsible for opening court in all three circuit districts while serving also as the sole Supreme Court judge. He lasted less than five months, however. Kyle neglected important cases for months, and when he was asked to explain, his only defense was that he lacked knowledge of both the Spanish language and Panamanian law. Taft demanded his resignation, declaring that Kyle was “not disposed to fit in with the Spanish law, which … ought to prevail in the Zone so far as possible, because it is no purpose of our Government to take from the people of the Zone the laws to which they have been accustomed.”9
The men appointed to take Kyle’s place would all be fluent in Spanish, and two of them, Hezekiah Gudger and Facundo Mutis Durán, had extensive experience with the laws of Panama. Gudger, a North Carolinian, had served as consul general in Panama since 1897and had extensive experience with the laws, culture, and language of the country. Mutis had a more glittering vitae. A Panamanian citizen, he had served twice as governor of Panama before it achieved independence from Colombia, although one of his terms ended prematurely when a conflict with the military led to Mutis’s fleeing from his home in women’s clothes and hiding out at the American consulate. In between Mutis worked for many years as an attorney for the Panama Railroad and was later appointed to the Supreme Court of Panama. He was considered one of the top authorities on Spanish, Colombian, and Panamanian law, and in 1905 Taft appointed him to serve as chief justice of the Canal Zone Supreme Court.10
Similarly, the lawyers arguing cases before courts might be Panamanian or American. Any attorney allowed to practice law on the isthmus when U.S. occupation began preserved that right in the new Canal Zone. American lawyers who had been admitted to the bar in any state or territory of the United States could also practice in the Zone, although they might be asked to sit for an examination on the Zone’s legal codes. According to scholar Wayne Bray’s analysis of lawyers who argued before the Canal Zone Supreme Court, approximately two-thirds of them were American and one-third Panamanian. Some lawyers who often argued before the Supreme Court were Panamanian, such as Oscar Terán. Only three lawyers argued more cases before the court than he did. Another active lawyer was Harmodio Arias, who would later be elected to the presidency of Panama.11 In these ways the boundaries between American, Panamanian, and even Spanish legal cultures were extremely fluid.
Finally, there was the challenge of reconciling the tensions between constitutional rights and matters of empire. In the aftermath of the War of 1898, American jurists needed to reassess constitutional law in light of the colonial expansionism of the United States. Beginning in 1901in the Insular Cases, the Supreme Court justices accomplished that, and in doing so, they provided the framework for legal decisions in the Canal Zone as well. With rather tortured prose, the same Court that had upheld racial segregation in Plessy v. Ferguson determined that colonial acquisitions by the United States did not contradict the Constitution and that such areas should be considered “unincorporated territories” in which the United States could decide which—if any—constitutional protections would apply to residents. In the most famous case, the 1901 Downes v. Bidwell, Justice Edward DouglassWhite justified his decision in this way: “While in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, because the island has not been incorporated into the United States, but was merely appurtenant thereto as a possession.”12 This decision divided the justices, but in Dorr v. United States in 1904 a majority rallied to support the incorporation doctrine. The Supreme Court found in Dorr that Filipinos were not fit for jury trials and that Congress need not extend such rights to them until and unless it chose to incorporate the islands.
The Insular Cases freed the U.S. government to pursue its expansionist policies with full latitude. They followed closely after the election of 1900, in which William McKinley and William Jennings Bryan had debated imperialism, and the latter, an ardent anti-imperialist, went down soundly to defeat. The relation between the Supreme Court decisions and this election led humorist Finley Peter Dunne to famously quip, “No matther whether th’ constitution follows th’ flag or not, th’ Supreme Coort follows th’ iliction returns.”13 The beliefs underlying these decisions closely mirrored the worldview of expans
ionists like McKinley and Roosevelt. The Supreme Court justices were implicitly agreeing that the empire-building of the United States was a positive development for world civilization; that there existed no conflict between democracy and colonialism; that some racial or ethnic groups were superior to others; and that it was the responsibility of superior groups to help others rise to a higher level of civilization. The Insular Cases thus accomplished for empire what Plessy v. Ferguson accomplished for domestic race relations. While Plessy was famously overturned in 1954, the Insular Cases remain decisive even today for questions of “unincorporated territories”—Downes v. Bidwell was cited as recently as 1990 as a precedent in a Supreme Court decision. Furthermore, while Plessy argued that segregation could exist amid fundamental equality, the Insular Cases forsook even the pretense of equality by asserting that residents of territories could not make claim to equal treatment. Secretary of State Elihu Root summed up the importance of these cases: “The Constitution follows the flag, but it does not catch up with it.”14
Throughout the construction period, government officials looked closely at the experience of the United States in Puerto Rico and the Philippines as they sought to adjust the laws and legal procedure to U.S. precedents while also retaining, when possible, the flavor of Spanish precedents. By 1904, when the United States established the judicial system of the Canal Zone, officials in the Philippines and Puerto Rico already had several years of experience melding American and Spanish laws. One sign of the close relationship officials saw between the judiciary of the Canal Zone and that of the Philippines and Puerto Rico was the appointment of Charles Magoon as governor of the Canal Zone in 1905. Magoon had previously served as an official with the Bureau of Insular Affairs, where his specialty had been resolving legal problems in the United States’ new colonial acquisitions, namely in the Philippines, Puerto Rico, and Cuba.15 These provided the major models of colonial jurisprudence the ICC relied on when deciding difficult cases.
The case of Fitzpatrick v. Panama Railroad Company provides some insight into the ways that judges in the Canal Zone melded these diverse legal cultures in making their decisions. In 1910 the ICC secured permission from the Panama Railroad Company (a corporation owned and run by the U.S. government) to run a special train carrying some of its officials home after they attended an opera in Panama City. That train collided with one run by the Panama Railroad Company as a result of negligence by some of its workers, particularly one brakeman. A man named C. C. Fitzpatrick riding the ICC’s special train received injuries during the collision and sued the Panama Railroad Company for damages. The circuit court awarded him $7,000. The Panama Railroad Company appealed this decision, arguing that it should not be liable for an injury caused by its workers. In a lengthy decision the Supreme Court judges of the Canal Zone considered the issues, casting their net widely for legal advice and precedents. Their decision held that the Panama Railroad was liable for the acts of its servants and employees. It was based on a “careful review” of decisions made by a wide variety of judicial systems: the supreme courts of Panama and of Colombia, the courts of the Philippines and Puerto Rico, and the supreme court of the state of Louisiana.16 The judiciary of the Canal Zone was thus a complex combination of legal cultures, particularly American and Panamanian courts and sites of U.S. colonialism.
Somehow this hybrid system would have to rule over a society capable of significant conflict, and there were important issues to determine. When was a problem severe enough to require judicial intervention, and then what punishments would be appropriate? Did it matter whether the perceived disorder occurred in public or in private? Were certain forms of conflict tolerated more than others? Most often such questions fell to Goethals’s personal investigator as well as to the judges and policemen of the Canal Zone to resolve.
JOLLIFICATION AND LABOR DISCIPLINE
Maintaining discipline among workers required cooperation among various branches of the Canal Zone government. In addition to the municipal, circuit, and supreme courts of the Canal Zone, the police with their labor spies, and the government’s powers of deportation and eviction, chief engineer George Goethals held a personal court every Sunday morning. Many of the cases put before him were minor disagreements, but others might have gone to court if the petitioners had chosen that route. Goethals tried when possible to devise a solution that would seem reasonable to all sides, but if no solution presented itself, he was willing to resort to deportation. The socialist Arthur Bullard observed one Sunday morning session, in which a Jamaican couple appealed to Goethals to solve a dispute over who owned the money the wife had earned washing clothes. Goethals ruled that the money belonged to the wife. When the husband demurred that under English law the property should be his, Goethals responded, “Say the word, and I’ll deport you. You can get all the English law you want in Jamaica.”17
Despite these broad powers of deportation, ICC officials still found it difficult to rule over Zone residents. Deportation meant losing much-needed laborers and was expensive. Although useful in certain situations, deportation alone could not manage the huge population of the Zone. This became apparent as the number of people climbed during 1906and 1907and arrests quickly increased. The ICC reported in June 1907that arrests by Zone policemen had nearly doubled compared with the previous year, from 3, 356 to 6, 236. Officials attributed this not only to the increase in population but particularly to the importation of many European laborers who were generally “restless, suspicious, and excitable.” Intoxication, disorderly conduct, fighting, and violent crimes had all increased, and as a result the ICC began building more jails. Ten police stations and jails were built in 1907, plus three lockups. Four other buildings were adapted to become jails. A penitentiary already existed at Culebra.18
In late 1907, ICC officials requested yet more weapons to manage and discipline the Zone’s growing population. President Roosevelt complied by issuing an executive order which declared that any vagrant, beggar, or loiterer, or anyone intoxicated or engaging in disorderly conduct or disturbance of the peace, would be guilty of a misdemeanor and punished by a fine of up to $ 25and/or one month in prison. With this executive order supporting them, ICC officials began prosecuting men and women even for relatively unthreatening behavior. Police arrested a West Indian woman in 1911, for example, for swearing in public at someone who had angered her: she had cried out, “You damned Antiguan son-of-a-bitch.” She was fined $ 15plus all court costs.19 Such trends suggest not only that ICC officials found it difficult to make the Zone as peaceful as they desired but also that the courts and prisons gradually became more important tools of social management.
The executive order was presumably aimed at West Indians and southern Europeans who would find it more difficult than white U.S. citizens to pay a fine as high as $ 25. Likewise, the courts seemed to reserve relatively stiff penalties for West Indians accused of petty crimes, as if this were a way to ensure law and order among the vast communities of Caribbean workers. One young West Indian man named Abel Scott, for example, forged a pay certificate worth less than $ 10during the early days of U.S. occupation and was sentenced to five years’ hard labor in the penitentiary. Two years later the judge in the case wrote Joseph Blackburn of the ICC and requested that Scott be pardoned. His reasons reveal the U.S. government’s strategy for meting out punishment during the early days of construction. At the time of Scott’s original trial, the judge noted, sentences were far more severe since “a great deal of crime was expected in the Canal Zone as it was feared that it would be the refuge for a large criminal class, and it was hoped that by having quick and rather severe sentences this state of affairs would be either remedied or the amount of crime greatly reduced.” In fact, perhaps because of such severe sentences, crimes like Scott’s were unusual. Now, the judge argued, Scott would have received only a year or two in prison for such a crime, and on those grounds he asked that Scott be pardoned and released from prison. As an added incentive, pardoning Sco
tt would encourage other prisoners to behave well.20
A year or two in prison became the norm for such crimes, which still seems rather punitive. Samuel Griffith, a silver employee, changed his pay receipt from $ 10to $ 40in order to defraud the government of $ 30silver (about U.S. $ 15). The court sentenced him to a year of hard labor. A Barbadian named George Owens, described by the court reporter as a “tall, thin, yellow nigger,” forged two U.S. orders, for $ 10and $ 15, and was sentenced to two years of hard labor.21
Occasionally men accused of insubordination or mutiny appeared before the courts, as when F. Garcia, a coal passer on a steamship owned by the Panama Railroad, disobeyed his superior captain and then attempted to assault him. Garcia received a sentence of six months of hard labor for his disobedience. Seamen who deserted their ships kept the courts very busy. Some seamen deserted in hopes of securing better jobs in the Canal Zone. This particularly was the case with seamen from Europe. Chinese seamen, on the other hand, more often deserted to escape cruel treatment and poor working conditions. Two men named Ah Mee and Ah Chow, for example, deserted their British ship, claiming their foreman beat them and threatened them with a gun. The court determined that they had been gambling and were indebted to their foreman and that their unwillingness or inability to pay had caused his physical violence. The judge in this case ordered them held in a Zone prison cell until their ship was ready to leave port, partly in order to comply with the Chinese exclusion law of the Republic of Panama.22
