Abstract
One of the many issues raised by these occupations, friendly or otherwise, is the thorny matter of criminal jurisdiction. In the difficult negotiations that followed the initial exchange of notes, the United States insisted that American servicemen not be subject to local courts. The British authorities resisted these demands, as did the base colonies themselves.1 Indeed, the territorial delegations from Newfoundland, Bermuda, and Jamaica were adamant that all mention of U.S. sovereignty be dropped. After three weeks of often rancorous debate, the negotiation of the Bases Agreement of March 1941 nearly collapsed over jurisdiction and customs duties. It was only Prime Minister Winston Churchill’s personal intervention that saved the day. Yet the resulting compromise satisfied no one.2
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Notes
Note by Secretary Circulating Report by COS, 5 September 1940 meeting, CAB 98/6, War Cabinet, Committee on United States Bases, Minutes and Memos, 4 September 1940, Public Record Office (hereafter PRO), London, England; also see Commonwealth Relations Officer, November 1949, File: Note 1, Dominion Office (hereafter DO) 114/111, “Newfoundland United States Leased Bases Correspondence, 1940–1947,” PRO.
The best analysis of the negotiations can be found in Charlie Whitham, “On Dealing with Gangsters: The Limits of British ‘Generosity’ in the Leasing of Bases to the U.S., 1940–41,” Diplomacy & Statecraft 7, 3 (November 1996), 589–630.
Other articles of the agreement gave the United States additional rights and responsibilities. For example, Article VI ensured that U.S. servicemen would not face arrest without the approval of their commanding officer. Similarly, Article VII indicated that Americans being tried in civilian courts had the right of audience for U.S. legal counsel.
Archibald King, “Further Developments Concerning Jurisdiction Over Friendly Foreign Armed Forces,” The American Journal of International Law 40, 2 (April 1946), 264–276.
W. Adolphe Roberts, “Caribbean Headaches,” The Nation (September 20, 1941). This opinion was shared by upper echelon officers: Admiral Greenslade, “Social and Economic Conditions in Jamaica,” October 26, 1940, Box 3788, RG 59: Decimal Files, 1940–44, 811.34544, National Archives and Records Administration (hereafter NARA), College Park, Maryland.
Howard Johnson, The Bahamas from Slavery to Servitude, 1783–1933 (Gainesville: University Press of Florida, 1996), 97–101; and Michael Craton and Gail Saunders, Islanders in the Stream: A History ofthe Bahamian People Volume 2, (Athens: University of Georgia Press, 1992).
These “old” colonies had houses of assembly that went back centuries. Bermuda’s legislature dated back to 1620, making it the oldest one outside of England.
Resistance to segregation during the 1940s and 1950s is outlined in one file found at the Bermuda Archives. S 32/2/2, “Racial Discrimination,” Bermuda Archives. Jewish soldiers and sailors also faced discrimination. According to one U.S. journalist, Bermuda had “no Jews to hate but plenty of hatred for Jews.” William Saphire, “British Bermuda: A Land of Bigotry,” Jewish Examiner (October 25, 1946).
See Sean Cadigan, “Battle Harbour in Transition: Merchants, Fishermen, and the State in the Struggle for Relief in a Labrador Community during the 1930s,” Labour/Le Trctvail26 (Fall 1990), 125–150.
There is a considerable literature on the Commission of Government era in Newfoundland history. The most extensive study to date is Peter Neary, Newfoundland in the North Atlantic World, 1929–1949 (Montreal: McGillQueen’s University Press, 1988) See also David Mackenzie, Inside the Atlantic Triangle (Toronto: University of Toronto Press, 1986). The suspension of democracy is critically examined in James Overton, “Economic Crisis and the End of Democracy: Politics and Newfoundland during the Great Depression,” Labour/Le Travail 26 (Fall 1990) and in Garfield Fizzard, ed., Amulree’s Legacy: Truth, Lies and Consequences Symposium (St. John’s: Newfoundland Historical Society, 2001). Changes to the fisheries are examined in Miriam Wright, A Fishery for Modern Times: The State and the Industrialization of the Newfoundland Fishery, 1934–1968 (Don Mills: Oxford University Press, 2001) and in David Alexander, The Decay of Trade: An Economic History of the Newfoundland Saltfish Trade, 1935–1965 (St. John’s: ISER Books, 1977).
For the functioning of segregation in the U.S. South see John Hope Franklin, “History of Racial Segregation in the United States,” Annals of the American Academy of Political and Social Science 304 (March 1956), 1–9; C. Vann Woodward, The Strange Career of Jim Crow. Third Edition (New York: Oxford University Press, 1989); Robert Haws, ed., The Age of Segregation: Race Relations in the South, 1890–1945 (Jackson: University Press of Mississippi, 1978); and, W. Fitzhugh Brundage, Lynching in the New South: Georgia and Virginia, 1880–1930 (Urbana: University of Illinois Press, 1993).
Michael L. Conniff, Black Labor on a White Canal: Panama, 1904–1981 (Pittsburgh: University of Pittsburgh Press, 1985), 4–8. Another example is Puerto Rico. See Efren Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico (Washington, DC: American Psychological Association, 2001).
Neil A. Wynn, The Afro-American and the Second World War (New York: Holmes and Myer, 1975).
Until 1942, the Red Cross even refused to accept blood donations from nonwhites for the wounded. This was followed by a Jim Crow blood bank. Jean Byers, A Study of the Negro in Military Service (in WWII), June 1947, Box 783, RG 341: Headquarters U.S. Air Force, Deputy Chief of Staff, Personnel Director of Personnel Procurement and Training, Executive Office Records on Racial Policies, 1944–50, NARA.
Harvey Neptune, “White Lies: Race and Sexuality in Occupied Trinidad,” Journal of Colonialism and Colonial History 2, 1 (2001).
Soldiers who committed crimes were brought before one of three types of courts martial. First, general courts martial were convened to hear the most serious cases. Smaller matters were heard by special courts martial that could imprison an offender for a maximum of six months. Finally, summary courts martial heard minor cases and could punish offenders with a maximum sentence of one month jail time. Military law was so comprehensive that it encompassed virtually every imaginable offense whether military or civil. Brigadier General A. G. Strong to American Consul General, April 8, 1943, File 319.141, “Staff Judge Advocate. Annual Reports,” Box 57, RG 338: BBC, NARA; also see Harry N. Deyo, Staff Judge Advocate to Commanding General, Bermuda Base Command (hereafter BBC), February 18, 1944, File 250.401, “Jurisdiction (Conf),” Box 42, RG 338: BBC, NARA.
Colonial Office to the Governors of the base colonies, November 30, 1942, CO 975/2541, PRO.
Roberts-Wray, Minute, September 26, 1942, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO.
To quote from the minute: “In view of the acceptance by the United States of our views of concurrent jurisdiction, the question of trial by coloured jury becomes a real and pressing importance. If the United States raise objection in every case in trial by coloured jury, and the objection is sustained (as I think it would have to be) we shall in practice be deprived of jurisdiction in every case.” Minute, September 26, 1942, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO.
Fraser, Amhiroalent Anti-colonialism, 61–62.
Memorandum from Lt. Colonel W.F. Train, War Department, General Staff, Operations Division, Washington to Mr. John D. Hickerson, Department of State, January 26, 1943, Box 3798, RG 59: 811.34544, NARA.
W. Adolphe Roberts, “Caribbean Headaches,” The Nation (September 20, 1941).
Notes by Roberts Wray, February 1945, CO 971/20/3, PRO.
Robert C. Bates, “Strictly Confidential Background Report,” January 21, 1942, File 610: Economic Reports, Box 5, Volume 3 (1941), RG 84: British Guiana Consulate, General Records, 1940–47, NARA.
A double standard already existed in the colony as the courts proved reluctant to imprison the white population of the Colony and “where it is practicable fines instead of prison sentences are imposed.” Ibid.
Conn and Fairchild, The Western Hemisphere, 404.
Colonial Office to the Governors of the base colonies, November 30, 1942, CO 975/2541, PRO.
Douglas Jardine, Governor Leeward Islands to H. Beckett, December 17, 1942, CO 975/25/1, PRO.
N.L. Mayle, January 16, 1943, Minute, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO.
Ibid.
N.L Mayle, July 6, 1943, Minute, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO.
William Battershill, Minute, September 12, 1942, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO.
K.O. Roberts-Wray, January 16,1943, Minute, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO.
“K.E.P.,” January 21, 1943, Minute, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO
Colonial Secretary, Bahamas to H. Beckett, Minute, January 8, 1943, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO.
William Beckett, July 28, 1942, Minute, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO. Roberts Wray believed that Sections 13, 33, and 36 of the Bermuda Jury Act would probably ensure a white jury if desired.
W.G. Hayter, British Embassy in Washington to H. Hohler, Foreign Office, October 13, 1942, CO 975/25/1, PRO.
N.L. Mayle, Minute, September 8, 1942, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO.
Governor of British Guiana to H. Beckett, January 11,1943, CO 975/25/1, PRO.
Governor of Trinidad to H.Beckett, January 19, 1943, CO 975/25/1, PRO.
Governor of Jamaica to H. Beckett, January 13, 1943, CO 975/25/1, PRO.
K.O. Roberts-Wray, November 4, 1942, Minute, CO 971/25/1, “U.S. Bases: Jurisdiction Coloured Magistrates and Juries,” PRO.
Mr. Chancery, British Embassy, Washington to North American Department, Foreign Office, May 4, 1942, File: CO 971/13/2, “U.S. Bases Act IV Jurisdiction,” PRO.
Emerson was knighted in 1944 and made chief justice of the Supreme Court of Newfoundland. Robert H. Cuff, Melvin Baker, and Robert D.W. Pitt, eds., Dictionary of Newfoundland and Labrador Biography (St. John’s: Harry Cuff Publications, 1990), 99.
Quoted in Neary, Newfoundland in the North Atlantic World, 151.
Ibid., 150–151.
L.E. Emerson to Colonel Welty, July 11, 1941, File: Jurisdiction of Local Government over Federal Property and Operations, Box 16, Newfoundland Base Command, NARA.
Colonel Welty to L.E. Emerson, October 4, 1941, File: Jurisdiction of Local Government over Federal Property and Operations, Box 16, Newfoundland Base Command, NARA.
L.E. Emerson to Colonel M.D. Welty, May 7, 1941, File: Jurisdiction of Local Government over Federal Property and Operations, Box 16, Newfoundland Base Command, NARA.
Superintendent to Deputy Commissioner of Police, December 31, 1942, CO 975/25/1, PRO. Cases of a more serious nature involving American servicemen were tried by military courts martial. Governor of Trinidad to H. Beckett, January 19, 1943, CO 975/25/1, PRO.
Governor of British Guiana to H. Beckett, January 11,1943, CO 975/25/1, PRO.
July to September 1943, CO 971/24/9, “US Bases. British Guiana. Quarterly Reports,” PRO.
K.O. Roberts-Wray, September 4, 1942, File: CO 971/13/2, “U.S. Bases Act IV Jurisdiction,” PRO.
Henry Field, March 1942, File: “Henry Field. Trinidad, March 8–30, 1942,” Box 57, RG 43, NARA.
Ibid.
Paul Blanshard, Democracy and Empire in the Caribbean (New York: Macmillan, 1947), 116.
The Officer Administering the Government to Secretary of State, December 13, 1943, DO 35/1736, PRO.
Minute, N.L. Mayle, November 21, 1941, CO 971/20/6, “US Bases. Criminal Offences: Leeward Islands,” PRO; and see Governor Sir D. Jardine to Colonial Office, December 26, 1941 in the same file.
Frank A. Schuler, Jr., American Consul to Secretary of State, May 19, 1942, Box 3796, RG 59: 811.34544/1753, NARA.
The growing dissatisfaction with the exercise of criminal jurisdiction by the U.S. military courts extended to St. Lucia where the Marines fired on several unarmed civilians, including the accidental shooting of Arnold Maynard by a U.S. Marine sentry in March 1942; the May 26, 1942 shooting of a St. Lucian lorry driver by a Marine guard; the shooting of a St. Lucian laborer on October 21, 1943; and the shooting of George Pamphille on February 18, 1944. Assistant Administrator F.E. Degazon, File: “Service Officers’ Report; Assistant Administrator; Administrator; and Governor, Period March 1941-June 1944,” CO 971/21/7, “Periodical Reports of Incidents, Etc, United States Bases-Secretary of State’s Windward Islands Dispatch No. 131 of 1 October 1943,” PRO.
The Officer Administering the Government to Secretary of State, December 13, 1943, DO 35/1736, PRO.
See, for example, this 1944 incident: File: “Private Mifford Simon, 1944,” Box 10, RG 338: BBC, NARA.
July 1-September 20, 1944, CO 971/24/5, “US Bases. Windward Islands-Periodical Reports. Quarterly Report,” PRO.
J.B. Oldendorf, U.S. Naval Operating Base, Trinidad, November 24, 1942, File: Correspondence, 1942, Box 2, RG 84: Trinidad Consulate, Confidential Files, NARA.
January-March 1944, CO 971/24/9, “US Bases. British Guiana. Quarterly Reports,” PRO. For an Antiguan example see Governor Sir D. Jardine to Colonial Office, November 20, 1941, CO 971/20/6, “US Bases. Criminal Offences: Leeward Islands,” PRO.
However, in the case of an African American soldier charged with the rape of a Trinidadian of Portuguese descent, the trial was only open to local government officials due to the nature of the evidence. William J. Epes, Lieutenant Colonel, GSC, Chief of Staff to Claude H. Hall, Jr., U.S. Consul, June 15, 1942, File: 834.5, Box 32, RG 84: Trinidad Consulate General Records, 1941–44, NARA.
A series of meetings were held between the Staff Judge Advocate’s office of Bermuda Base Command (United States) and the Bermuda government in Fall 1941. The United States asked that the government hand over all American nationals charged with crimes outside the leased areas. After its initial refusal to consider this option, the Bermuda government relented in December 1941. Bermuda justified this decision, in part, by noting that private citizens could still initiate private prosecutions should justice not be found in the U.S. service courts. However, the Americans simply refused to hand over any serviceman for such a trial. The right of private prosecution was thus an illusory guarantor of British rule of law. Charles P. Light, Jr., Memorandum for the Commanding General, Bermuda Base Command, Annual Report of Staff Judge Advocate for Fiscal Year 1942, August 31, 1943, File 319.141, “StaffJudge Advocate, Annual Reports,” RG 338: BBC, NARA.
Question and Answer to Major Light, Judge Advocate General’s Department, June 30, 1941, File: 250.401, “Jurisdiction, Military Courts, Tribunals,” Box 42, RG 338: Bermuda Base Command, NARA.
Legal Officer, U.S. Naval Operating Base to Staff Judge Advocate, Bermuda Base Command, 10 January 1942, File 319.141, “Staff Judge Advocate. Annual Reports,” Box 57, RG 338: BBC, NARA.
Governor to Secretary of State, January 13, 1943, File: USB/17/B, “Jurisdiction: Case of Private William Ferell (Rape), 1942–3,” Bermuda Archives.
The Bermuda government regularly handed over members of the command who had committed offenses outside the leased areas. Charles P. Light, Jr., Memorandum for the Commanding General, Bermuda Base Command, Annual Report of Staff Judge Advocate for Fiscal Year 1943, July 26, 1943, File 319.141, “Staff Judge Advocate. Annual Reports,” Box 57, RG 338: BBC, NARA.
A.G. Strong, Brigadier General, Commanding, to Commanding General, Eastern Defense Command, November 30, 1942, File 250.4 Courts Martial, 1944–45, Box 42, RG 338: BBC, NARA.
“Reports Concerning United States Army and Navy Personnel from the 1st day of April, 1941 to the 28th day of February 1944.” File 250.1 Morale and Conduct, Box 41, RG 338: BBC, NARA.
Royal Gazette and Colonist Daily (Saturday, February 12, 1944). The U.S. reaction to this courtroom drama can be found in: Basil F. Macgowan, U.S. Vice Consul to Secretary ofState, June 13,1944, Box 3801, RG 59: 811.34544, NARA; and, Major Bates Raney, Military Intelligence, February 14, 1944, File 319.1, “Periodic Reports (S-2 Reports),” Box 51, RG 338: BBC, NARA.
John B. Brooks, Major General, Commanding Newfoundland Base Command, June 1, 1943, Binder 1: “Monthly Reports of Operations,” Box 79, Newfoundland Base Command, NARA.
George D. Hopper made this estimate in September 1943.
“Classification of American Persons Committed to H.M. Penitentiary since January 1st, 1941 to Date,” October 5, 1945, File 19: U.S. Effect of Agreement on Colonies, Box 365, GN 13/1/B, PANL.
Quoted in Neary, Newfoundland in the North Atlantic World, 204.
John B. Brooks, Major General, Commanding Officer, May 1, 1943, Binder 1: Monthly Reports of Operations, Box 79, Newfoundland Base Command, NARA.
Major General G.C. Brant to Consul General Hopper, September 10, 1942, File: “Jurisdiction of Local Government over Federal Property and Operation,” Box 16, RG 338: Newfoundland Base Command, NARA.
George D. Hopper, “Political Developments during the Month of August 1942,” Box 48, RG 84: St. John’s Consulate. General Records, 1936–49 (1942), NARA.
Ibid.
Humphrey Walwyn to Machtig, March 4, 1944, File: DO 35/1736, “U.S. Bases. Preparation of a Paper on the Probable future Effects on the Territories Concerned of the Leasing of the Bases to the U.S.,” PRO.
Cordell Hull to Frank Knox, Secretary of the Navy, Box 3798, RG 59: 811.34544/2646, NARA.
M.P. Mahoney, Sergeant, “Jurisdiction of Security Officers,” September 15, 1942, File 101: “U.S. Base, Arrest British Seaman Kemp and Meechan at Torbay, 1942–43,” Box 109, PANL.
These incidents are outlined in File 27, “American Bases,” September 1942, Box 34, GN 13/1/B, PANL.
Newfoundland Governor to the Secretary of State for the Dominions, May 8, 1942, File 10: PU-General, 1942–44, Box S 5–1-3, GN 38, PANL.
Secretary of State for the Dominions to the Governor of Newfoundland, May 15, 1942, File 10: PU-General, 1942–44, Box S 5–1-3, GN 38, PANL.
Major General John Brooks was a natural conciliator and soon reported that relations had warmed up considerably: “On the question of jurisdiction it has been agreed that in each borderline case a conference will be held and a decision will be made, based upon the facts of the case. This decision will be by consent and agreement of both parties.” John B. Brooks, Major General, Commanding Officer, May 1, 1943, Binder 1: Monthly Reports of Operations, Box 79, Newfoundland Base Command, NARA.
L.E. Emerson to Charles Reed II, American Consul, April 29, 1943, File 1: Jurisdiction Prior to 1945, Box 1, Argentia U.S. Navy—Newfoundland, Naval Historical Center (hereafter NHC), Washington Navy Yard, Washington, DC.
Knox reasoned that the “long established policy of the Navy Department is not to surrender its personnel to a foreign government for trial.” Secretary of Navy, Frank Knox, to Cordell Hull, Secretary of State, August 18, 1943, File 1943, Box 56, RG 84: St. John’s Consulate. General Records, 1936–49, NARA.
Charles S. Reed II, American Consul to Secretary of State, Washington, May 18, 1943, File 1: Jurisdiction Prior to 1945, Box 1, Argentia U.S. Navy—Newfoundland, NHC.
George D. Hopper, Consul General, to Secretary of State, Washington, June 3, 1943, File 1: Jurisdiction Prior to 1945, Argentia U.S. Navy—Newfoundland, NHC.
Ibid.
The relevant section read as follows: “Nothing in this Agreement shall be construed to effect, prejudice or restrict the full exercise at all times of jurisdiction and control by the United States in matters of discipline and internal administration over members of the United States forces, as conferred by the law of the United States and any regulations made thereunder.” Article IV is quoted in its entirety in Malcolm MacLeod, Peace of the Continent: The Impact of Second World War Canadian and American Bases in Newfoundland (St. John’s: Harry Cuff Publications, 1986), 76. Acting Secretary of the Navy to the Secretary of State, December 13, 1943, File: 811.34544, Box 3800, RG 59, NARA.
The question ofjurisdiction remained “unsettled” in September 1944 when the navy’s commandant at Argentia reported that no personnel would be released to local trial without the expressed permission of the Secretary of the Navy. L.J. Hudson, Captain, U.S. Navy, Commandant to Commander Task Force 24, “Relations with Governments and their Nationals,” September 4, 1944, File 1: Jurisdiction Prior to 1945, Box 1, Argentia U.S. Navy-Newfoundland, NHC.
Newfoundland to British Embassy, Washington, June 25, 1946, File: American Bases in Newfoundland, Volume 8, Box 11, GN 4/1/D, PANL.
Secretary of State for Dominion Affairs to Governor, Newfoundland, File: American Bases in Newfoundland, Volume 8, Box 11, GN 4/1/D, PANL.
Summary Minutes of Special Meeting, United States Section, Permanent Joint Board on Defense, October 31, 1949, Base Files, 1942–52, Box 22, File: Newfoundland Bases (October–December 1949), RG 59: Secretary of State, Permanent Joint Board of Defense, NARA.
This chronology of events was established in court. See the text of the Supreme Court judgment by Judge Brian Dunfield in the St. John’s Evening Telegram (February 28, 1949).
Ibid. It is worth mentioning that Prenoveau refused to pay the fine and that the U.S. Army ordered that he be “protected and defended” as he was acting under orders. James H. Brewster, Jr., USAF Deputy Chief of Staff to Headquarters of Newfoundland Base Command, File: “Newfoundland Bases—Jurisdiction (1949),” Box 23, RG 59: Secretary of State. Permanent Joint Board of Defence Base Files, 1946–52, NARA.
The various responses are held in File: G 11/02/28, “American Bases in Newfoundland,” Volume 9, GN 4/1/D, PANL.
Much of the recent scholarship is inspired by David R. Roediger, The Wages of Whiteness: Race and the Making of the American Working-Class (New York: Verso, 1999 [1991]). For a devastating critique of whiteness studies see Eric Arneson, “Whiteness and the Historians’ Imagination,” International Labor and Working Class History 60 (Fall 2001), 3–32.
Summary Minutes of Special Meeting, U.S. Section, Permanent Joint Board on Defense, October 31, 1949, File: Newfoundland Bases (October– December 1949), Box 22, RG 59, Secretary of State, Permanent Joint Board of Defense, Base Files, 1942–52, NARA.
Mr. Perkins to Secretary of State, November 1, 1949, File: Newfoundland Bases (October–December 1949), Box 22, RG 59, Secretary of State, Permanent Joint Board of Defense, Base Files, 1942–52, NARA.
Edwin G. Moline, American Consul General, Trinidad, “Antigua Agenda for Leased Base Talks,” October 7, 1960, File 430: U.S. Military Base, 1960. 1 of 5, Box 4, RG 84 Trinidad Declassified Box 4, NARA.
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High, S. (2009). The Racial Politics of Criminal Jurisdiction. In: Base Colonies in the Western Hemisphere, 1940–1967. Studies of the Americas. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230618046_8
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