Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 5, 1898

Mr. Hoyt to Mr. Day.

Department of Justice,
Washington, D. C., April 19, 1898.

My Dear Sir: I send herewith a separate memorandum on the Lattimer Case in accordance with your suggestion. I fear my consideration of the underlying facts may have outrun the limits of the inquiry; but, if so, the paper is so arranged that the questions of public law involved are embraced separately under Part III and, if you wish, the memorandum can be recast and substantially restricted to that portion. Awaiting any indication of your wishes in the matter, I remain,

Yours, very respectfully,

Henry M. Hoyt,
Assistant Attorney-General.

[Inclosure.]

Memorandum to Department of State on facts in Commonwealth v. James Martin, sheriff, et al., court of oyer and terminer, Luzerne County, Pa., February-March, 1898.—“Lattimer Case”

In considering the questions involved in this case it will be well to state some of the underlying facts and to discuss the principles of criminal law and of public law and the precedents under the latter, in order to reach a correct determination as to the proper attitude of the United States regarding the claim for indemnity presented by the Austrian Government.

I.

underlying facts—the strike.

The strike in the Hazleton coal regions, in consequence of which the sheriff called out his posse, and the fatal conflict at Lattimer took place, originated at the Audenried mines of the Lehigh and Wilkesbarre Coal Company from a trivial controversy between the local superintendent of the coal company and the mule drivers as to extra pay for overtime. This occurred in the first two or three days of September, 1897. A day or two after the dissatisfied men assembled their fellow-workers and formally organized the Lehigh and Wilkesbarre strike at Audenried. The colliers of other operators and companies were soon involved, and walking delegates appeared, formulated the grievances, and ordered a general strike.

The grievancies were that the men were not paid higher wages; that they were charged too much for powder; and “the company store,” including in the latter, complaints against the “company doctor” and the “company priest.”

Thereupon the marching and tumults began as detailed in the Lattimer trial. Employees of some of the companies and firms really had no grievances, but were compelled to quit work, and, being idle, determined that all collieries in the region should be in the same predicament.

As to the grievances.—The wages paid at the time were practically the same as had been paid for a number of years (there had been no reduction), and the operators claimed that there was nothing at the time to warrant a demand for increased wages. Because of the depressed condition of the trade, the demand for an increase in wages is claimed to have been unreasonable. The difficulty here rested not so much in the per diem wages as in the fact that, on account of the light demand for anthracite coal, the mine operators were compelled to restrict the output, and their employees were therefore placed on short time and were able to work only a few days in each week. The employers, of course, state that they had no control over this condition of affairs, and would have been glad if the market had enabled them to work full time and dispose of their product. In other words, the proper conclusion seems to be that the wages would probably have been fair if work could have been regular, but for the past few years interruptions have been so frequent and mining so fitful as to put the average mine laborer on a very low basis of living.

Similarly, the price for powder is said not to have been changed substantially for the past ten years. It is urged that it is entirely immaterial to the miner, who seems to be the only person affected, what the price of powder is. Wages in that region are upon a sliding scale, established many years ago when the price of powder was the same as to-day. The car price of coal for the miner was contracted for with reference to the then price per keg of powder, and this price has never been departed from. Wages are fixed with reference to the price per keg of powder upon the basis of the number of cars of coal that can be blasted out per keg. For example, the price for powder being always the same, the car price for coal varies, increasing with the hardness of the vein or other blasting difficulty, and the net result to the miner is derived by deducting the fixed powder price from the car price, the result being uniformity of net wages to the miner. If the price of powder were reduced, there would follow necessarily a reduction in the car price for coal, so that the results to the miner would be the same. As it would be extremely difficult to reduce the car price for coal in view of the exigencies of the trade, it is claimed to be more expedient to maintain the powder price, and that the system works no harm to the miner. Furthermore, the operators say that they supply the powder themselves for the protection both of the men and the mines, from the point of view of the quality necessary, and that they only charge such an advance on the cost price as is reasonable, to pay for the expense of safe handling. They claim that experience shows that the men can not safely buy powder whenever they choose, and that inferior powders lead to excessive smoke, poisonous gases, imperfect and unexpected explosion of charges, and other intolerable evils.

As to the company stores.—Some of them are of great benefit to the communities in which they are, and others are of great disadvantage as a means of oppression; it depends entirely upon how the particular store is managed; Therefore it could not be stated that a grievance founded upon the company’s store was well founded without knowing the facts of the special case. In the Hazleton region it seems that the larger corporations and individual operators do not maintain company stores. On behalf of the stores it is argued that they benefit by selling good articles at fair prices to men who can not wait until pay day; that no man is compelled to trade at the store, and that the complaint comes from rival interests—the saloons, itinerant hucksters, etc., who wish the business. But on the other hand, company stores have existed and probably now exist that are fairly the subject of criticism, and it is a well-known fact that the store system is made oppressive and vexatious by some operators in many ways which are obvious and in common knowledge. It would probably be of ultimate advantage to all interests if all the company stores were abolished, the good with the bad.

Thoughtful observers, therefore, conclude that the strikers in the Lehigh region, mostly foreigners, had no well founded grievances growing out of low wages, high powder, or company stores which justified them in the general strike which was brought about, although it is likely, as to the company store charge, that there may have been individual operators in the region where a strike based upon that ground would be founded upon a real grievance.

As to the people and their race affiliations.—Almost all of the people among the strikers were of foreign birth and were of the Slavonic and allied races. As a class they are ignorant and from our point of view uncivilized. Compared with such people as our own, they represent a status of civilization to find which generally we should have to go back several centuries. Their manner of life, their standard of living, their domestic relations, and moral sanctions are all crude and defective in comparison with any proper standards. They live huddled together in dwellings which are kept in an untidy and slovenly condition, and in that respect are mere hovels. They are turbulent by disposition, and while not intemperate perhaps by steady habit, indulge in orgies of intemperance on occasions, which very often result in affrays and murders; although it must be added that upon these occasions their criminal conduct is almost exclusively confined to themselves and does not break out in aggressions upon other portions of the communities where they live. The marriage relation is regarded from a lax point of view among them, and if any mishap befalls the husband, as by accidents in the mines, so that he is disabled, the wife is very apt to repudiate him, and in this respect the fate of unfortunates is somewhat like that of wounded animals. These statements are borne out within the writer’s knowledge from experience of the region and from reliable information; and recent articles in the Century Magazine (April, 1898, “A Pennsylvania colliery village;” (1) “A polyglot community,” by Henry Edward Rood; (2) “An artist’s impressions of the colliery religion,” by Jay Hambidge) confirm the statements, and in the writer’s opinion do not overstate the case. At the same time it must be said that our own citizens who come close to them, like the physicions, report them to be affectionate toward their children, attached in a certain emotional way to their churches, grateful for any service rendered them, and loyal to those who help them or show them kindness.

Notwithstanding these facts, which almost necessarily result when a lower race of people is brought into contact with a higher and different civilization, I believe that they are being and will be successfully amalgamated, and on the whole as rapidly and satisfactorily as any of the previous great race migrations to this country. Consequently, their case does not appear to me to require the application of any stricter immigration laws so long as those who are distinctly of the criminal and defective classes are barred out by the rigid enforcement of the existing laws. It seems to be the case that their violent traits are being softened in a marked degree and that their general improvement is steady, though perhaps not rapid. This is believed by thoughtful observers throughout the Pennsylvania coal regions. They are also said to be thrifty as a people, and to show a strong desire to become citizens (though this statement meets some denial); to own their own homes, to send their children to school, and to share in the advance and prosperity of this country.

Closing this general statement of their temperament, it may be said that the hope of the future, as always, rests with the children. The spiritual qualities which are claimed by enlightened observers to exist as a race trait in the Slavic strain appear most hopefully in the children. They are said to be vigorous, physically and mentally, and sound in their moral endowment. If this is so, and there appears to be no reason to doubt it, it is a case where the sins of the fathers are not such as to weigh fatally in the heredity of the children. They avail themselves largely of the public-school system, and are said to exhibit particularly bright minds as compared with the children of other races. Their proper training to achieve their right development as future citizens rests mainly with ourselves.

The majority of the Slavonic people in the Hazleton region, including most, if not all, of those killed and wounded at Lattimer, came to this country from territory within the present empire and kingdom of Austria-Hungary. They embrace the Magyar, the superior native stock of Hungary, appearing to be of western rather than of eastern origin, and the Slavs or Slavak, mainly from the northern districts of Hungary, who are of the Slavonic race, and originally came into Hungary from the east. The majority of the Hungarians in the Hazleton region are of the latter class, but they are all called Huns in common parlance, which term is also extended, but ignorantly, to the other race elements there now to be mentioned. There are a few Lithuanians. The Lithuanian comes from Lithuania, in Russia, and is a Russia Pole. There are also many Austrian Poles; they come mostly from Gallicia, which fell to Austria in the last partition of Poland. There are some German Poles and Germans from the contiguous territories of Bohemia and Moravia and from Prussia. The larger number of such people about Hazleton appear to be Huns of the Slavic stock and Poles of the same stock, now under Austrian dominion. The language and dialects spoken follow these distinctions. The Magyar, which stock has few representatives here, is not much spoken, although it is the classical and official Hungarian tongue. The Magyar and Slavak are distinct peoples. They can not understand each other and differ in appearance and in physical and mental make up. Many of the witnesses examined spoke through sundry interpreters in these various tongues. It should be added that there are numerous Italians in the district, but none seem to have been included among the men killed and wounded. There were a few Italian witnesses. They come from Lombardy and Naples. There are some Italians in the region who are Tyroleans. They come from that part of the Austrian Tyrol which fell to Austria as the result of the last war with Italy. These people are Italians in race and language, but Austrian in nationality.

In their religious relations there seems to be a division without much regard to race lines between Protestants of the Lutheran faith and Catholics, the latter perhaps predominating. Some of the Catholics are of the Greek Church and some of the Roman, but the latter appear to be what are called “Uniats,” which term indicates the historical admission into the administration of the Roman Church about a century ago of a section of the Greek Catholic Church, under which the latter was permitted to retain many distinguishing features of the Greek creed and ecclesiastical system. Some of the Hungarian Catholics are “Uniats”or of the Roman Church. There are some inhabitants of ancient Poland (Gallicia) who are Greek Catholics. These are of the “Little Russia” race and speak the “Little Russia” dialect.

As to citizenship and-naturalization.—It is stated that all these peoples wish to become citizens of the United States, and that many individuals have become naturalized, particularly among the Poles; that few of them return to their own country, except the Magyars, who are more apt to go back. On the other hand, it is confidently stated by some people that the general tendency of all these foreigners is to stay here for a few years without becoming naturalized (or, if they do become citizens, without meaning much by it or attaching much importance to it) to amass by the utmost frugality and narrow way of living what is to them a competence, and then to return to their native countries.

There appears to be more ignorance among the Lithuanians or Russian Poles than in any other strain. There are few of such Poles, however, and few Jews among any of the races; probably 90 per cent of them being strongly anti-Semetic. The naturalization records in Luzerne County do not show, apparently, that any of the men killed and wounded, nor, so far as examined, any of the witnesses of these foreign origins, have been naturalized. This is not, of course, conclusive, because they may have been naturalized elsewhere, and some allowance must be made for the interminable variation in the spelling of names, by which, for instance, the name Ceslak becomes Czeslach and Cheslock (although this particular name is easily traced), and the termination “Kawitch” becomes “Cavage” and “Kiewicz.” If, however, it becomes necessary as a result of the trial to pursue investigation on this line, it is suggested that it could be learned through a detective, and by careful examination of the naturalization records there and in contiguous counties, and by the voting registry lists in the various election precincts what the status as to citizenship of the men killed and wounded was. Furthermore, light will be thrown on this subject by the corporation records kept under an act of Pennsylvania, approved June 15, 1897 (P. L. 1897, p. 166), by which the employment of alien labor is regulated and a per capita tax imposed in respect thereof and records required to be kept. The constitutionality of this act has been assailed and is not yet determined, but many of the coal companies in the Hazleton district have kept the naturalization record therein provided for. It is also the fact that most of the people killed and wounded come from the village of Harwood, near Hazleton, and the inquiry concerning their status as citizens or foreign subjects would therefore be within-narrow limits.

The conclusion to be drawn from the foregoing consequently is that the men killed and wounded were of Hungarian or Polish origin in most instances; that they probably were or originally had been Austrian subjects, but that since these people, when arriving here, may or may not have sought naturalization, the status of any individual as a foreign subject, in case a claim for identity is made, should be affirmatively established.

There is probably no doubt that while, owing to their turbulent character and the reckless temperament developed by the hard conditions and precarious circumstances under which they live, there were leaders among these strikers who deliberately fomented disturbances and not only sympathized with hostility to the more prosperous classes of the community and to the interests of capital, but were ready to lift their hands in positive attack against these interests, a great mass of them were duped and misled, owing to their ignorance, to their unfamiliarity with our system of law and government, and to the pernicious efforts among them of members of the class of political agitators and organizers. For instance, two remarks made by strikers at West Hazleton to the sheriff, brought out in the testimony, show the ignorance and the recklessness born of it under the inspiration of which they spoke and acted. One man said to the sheriff: “I am no citizen, so you can’t do nothing to me. You can’t stop me.” And another said to him, pointing to his own breast: “Me no citizen. You shoot me here; you kill me; my wife and children get lots of money.”

Another fact to be noticed is that there was no apparent indication that the conduct of the trial and its result was not fully acquiesced in by all classes in the community. When the tragedy first happened, and before all the facts that led up to it and all the circumstances connected with it were known, the feeling even of the more responsible and reliable elements of the community held the sheriff and his men up to stringent criticism, and much indignation was aroused. But subsequently, as the facts became known (and they were not fully known until the evidence at the trial brought them out), the public sentiment underwent a complete change, and the feeling that the sheriff and his deputies had acted justifiably and should be supported became the dominant opinion of the entire region.

This suggests the question as to the trial of the remaining indictments and the change of venue. I do not believe, however, that a change of venue to any other county of eastern Pennsylvania, or for the matter of that to any county in Pennsylvania, would result otherwise than, in acquittal. The editorials of the significant newspapers of the country, which were followed by me quite thoroughly, fully support the view that the conflict was unavoidable, and that the sheriff was properly vindicated.

II.

the criminal law involved.

In viewing the principles of criminal law applicable to the case, we can not do better than follow the course of the luminous and admirable charge of the court to the jury. The judge defines murder under the common law, quoting Coke’s definition, and under the statute law of Pennsylvania creating the division into murder of the first and second degree, shows the distinction between manslaughter and murder and the limits of the doctrine of self-defense. He states the contention of the prosecution that the circumstances did not demand the calling out of the sheriff and his posse, and that the latter were not properly organized or legally constituted, and that in any event the killing was unnecessary and unjustifiable, from which the prosecution deduced the argument that the killing of the deceased by any member of the posse was a malicious murder for which all were responsible. Was there such a disorder in the region, the judge asks, as to justify the sheriff? This question is to be answered in the light of the whole testimony, at which point the court discusses the nature of the office of the sheriff, his powers and duties. He is the chief peace officer of the county, and his power is largely discretionary. In times of emergency its limits are not fixed. The military arm of the Government awaits his action, and, indeed, he may call the militia into his service as members of a posse, not, however, as soldiers, but as citizens. The posse must obey him. The court then points out that the respective views of the prosecution and defense as to the facts of disorder are wide apart. Thence he discusses the law of riot in Pennsylvania and defines riot under the common law and under the law of Pennsylvania. In effect a state of riot exists which is obnoxious to the law and subject to punishment when three or more persons do an unlawful act of violence or do a lawful act in a violent and tumultuous manner. He does not discuss strikes, but states the law upon the subject briefly as found in statutes and adjudicated cases. There is no law against going on strike or against employees combining together and refusing their employment until a dispute with their employer is settled. The liberty of contract is not to be infringed, either by employer or employed. Employers can not compel their men to work, and on the other hand it is equally true that employees can not compel a workman to quit work if he wishes to work. Further, the compulsion denounced is not only physical force, but overawing and intimidating conduct of any kind. The jury must apply these principles to the facts, and the conclusion on this branch of the case is of vital importance in disposing ultimately of the main question, namely, are the defendants guilty of the charge in the indictment? If the calling out of the posse was unnecessary, and the consequent action unjustifiable, the act of one is the act of all, and all are equally responsible with the man who fired the fatal shot, because where several take part in the execution of a criminal purpose all are equally liable for the acts of each; but the question whether the purpose of the sheriff and his posse was criminal can not be fairly answered without a comprehensive review of all the occurrences leading up to the final volley. If the sheriff becomes satisfied that the public peace is threatened and that people are terrorized, it is his duty to act. It is the duty of the sheriff to prevent disorder just as much as to suppress a riot which has become flagrant and destructive. Leaving out the controverted facts, it is certainly true that the strikers failed to obey the sheriff at West Hazleton and Lattimer, and insisted on pushing on. The sheriff had the right to issue the order to the strikers to disperse, and the right to give the order implies the corresponding duty of obedience by all, rich and poor alike. If the jury is satisfied that the intent of the sheriff was to preserve order, then his action was not criminal. If on the contrary, they are satisfied that his purpose was not to preserve peace, but was base and malicious, then the unlawful or malicious act of one of the deputies is the act of all. Yet if, under all the evidence, they are not satisfied of a malicious purpose beyond reasonable doubt, then the doctrine that the act of one is the act of all has no place in the case. Finally, if the original purpose was lawful, but if one or more of the deputies continued to fire after the necessity ceased, then if such slayer or slayers are identified they ought to be convicted of one or other of the offenses charged, as the jury may decide; but it is to be observed that two rights attached to the accused in every view and at every stage of the proceedings, namely, the presumption of innocence and the benefit of reasonable doubt. (End of abstract of court’s charge.)

The law of Pennsylvania upon the subject of a sheriff’s duty in the face of a mob is clearly shown in the charge of Judge Jones to the grand jury of Philadelphia County in the case in re Riots of 1884. (2 Pa. Law Journal Reports, 138.) The principles of this case have been followed since in later cases, in Pennsylvania and elsewhere, in which it has been pointed out that there are two kinds of riot, one an overt actor acts done in addition to the riotous assembling together; and second, where no acts are done or are necessary, but the assembling in terrorem populi constitutes the offense; that it is not enough to show error in judgment on the part of the sheriff, but there must be malicious and willful error; that the sheriff has not only the right, but is bound to keep the peace, and that while executive power is always liable to be dangerous to liberty, on the other hand, without it a government dissolves in anarchy.

My conclusion, from review of the facts and law, is that the sheriff and his posse followed violent, turbulent bands of strikers about the Hazleton region for a week, meeting them with tact and patience, dispersing and repressing them without any conflict and almost without altercation, and that, although in any such case it can not properly be said that forbearance ceases to be virtue, the limits of forbearance had been reached at Lattimer, and the culmination of disorder and riot could not have been suppressed without, the conflict that occurred and the consequent loss of life, unless the sheriff and his men had yielded and retreated or had become the victims of infuriated men whom they were unavailingly seeking to repel without an appeal to arms. If the case were less strong than this I can see no escape from the following statement:

The sheriff is, and from time immemorial has been, an officer of large powers and wide discretion. His powers are executive in one aspect, and in another largely judicial. He is not required to wait to be moved to their exercise upon the action or command of a court or a superior executive officer or the military authorities. He determines in the necessarily large discretion assigned him when the circumstances are such, or such an emergency has arisen, as to demand his action, and it is for him also to say when it is necessary that the action shall be extreme. The ultimate protection against unjustifiable action resides here, as it does in any similar case, in the judgment, sense, and self-control of the official, founded, as these qualities are, upon the final power of relf restraint and self-government in the community. The underlying sanctions and restraints affecting both the official and the people are moral and instinctive, and consequently they evade any further analysis or legal definition,

The jury, as stated, was a representative and intelligent jury of the people. I do not believe that they were swayed by prejudice or passion. Their verdict seemed to have been reached after due deliberation with promptness and without dissent. Their verdict, of course, means that the sheriff and his men, under all the circumstances, were fully justified in what they did, and I can not see why this does not entirely settle the matter.

These last considerations have an intimate bearing upon the question of public law next to be discussed. It is sufficient here merely to refer again to the contention in the report itself, namely, that irrespective of further criminal trials on this issue, and before the question of indemnity can properly be considered, in my judgment the right to damages ought to be established, or the effort to establish it ought to be made by a civil suit or suits for damages in the common pleas court of Luzerne County, to be brought against the sheriff and his deputies.

III.

the principles of public law applicable.

May indemnity from the United States properly be claimed by foreign Governments in behalf of the widows and next of kin of aliens killed and wounded at Lattimer?

The Lattimer Case clearly does not fall within the class of cases of which the Spanish incident at New Orleans in 1851 is a striking example. In that case a riotous mob attacked and sacked the Spanish consulate at New Orleans and the shops of sundry Spanish residents, in consequence of which the lives of Spaniards seem to have been endangered and considerable property belonging to them was destroyed. The circumstances leading to the attack—the summary execution in Cuba of a number of American citizens who had accompanied the insurrectionary expedition of Lopez to that island—explain, while they do not justify, the vindictive passion and violence of the mob. The special rights and immunities of a consul entered into this case, and the United States accorded to Spain, as a matter of grace, indemnity for the redress of his injuries and the indignity to the nation which he represented. It was recognized that a consul’s privileges, being under the protection of the Government to which he is accredited, are greater and are to be more scrupulously regarded, because of his public character, than those of an ordinary alien resident for commercial purposes. Mr. Webster, in his note as Secretary of State to the Spanish minister in this case (6 Webster’s Works, p. 507, et seq.), announced the following principles as bearing on the case:

The assembling of mobs happens in all countries; popular violences occasionally break out everywhere, setting law at defiance, trampling on the rights of citizens and private men, and sometimes on those of public officers and the agents of foreign Governments especially entitled to protection. In these cases the public faith and national honor require not only that such outrages should be disavowed, but also that the perpetrators of them should be punished wherever it is possible to bring them to justice; and, further, that full satisfaction should be made in cases in which a duty to that effect rests with the Government, according to the general principles of law, public faith, and the obligation of treaties.* * * But while this Government has manifested a willingness and determination to perform every duty which one friendly nation has a right to expect from another in cases of this kind, it supposes that the rights of a Spanish consul, a public officer residing here under the protection of the United States Government, are quite different from those of the Spanish subjects who have come into the country to mingle with our own citizens and here to pursue their private business and objects. The former may claim special indemnity; the, latter are entitled to such protection as is afforded to our own citizens. While, therefore, the losses of individuals, private Spanish subjects, are greatly to be regretted,* * * these private individuals,* * * coming voluntarily to reside in the United States, have certainly no cause of complaint if they are protected by the same laws and the same administration of law as native-born citizens of this country. They have, in fact, some advantages over citizens of the State in which they happen to be, inasmuch as they are enabled, until they become citizens themselves, to prosecute for any injuries done to their persons or property in the courts of the United States or the State courts, at their election.

(See also reference to the foregoing case in letter from Mr. Bayard, Secretary of State, to the Chinese minister, February 18, 1886, 1 Wheat. Int. Law Dig., 2d ed., pp. 474, 484.)

These views have been held and applied by the United States in many other instances of foreigners residing here, and per contra of American citizens residing in foreign countries.

In suggesting to the Chinese ambassador that the President would recommend to Congress the granting of an indemnity (which was afterwards granted) for the slaughter of inoffensive resident Chinese aliens in the then Territory of Wyoming by a mob largely composed of other aliens, and for accompanying destruction of property, Mr. Bayard affirmed these doctrines and pointed out the peculiar form of our Government by reason of which such crimes and injuries are within the jurisdiction and punitive processes of the courts of sovereign States, and not of the Federal courts; and that while in the case of a Territory the local government is in certain respects subject to Federal control, the ordinary proceedings for the punishment of crime and redress of injuries is through the Territorial tribunals. Denying the existence of any personal or peculiar responsibility in respect to the Chinese in our midst, and calling attention further to the difficulty of carrying the safeguards of law and order to remote and uncivilized communities, where the ordinary bonds of control and restraint are relaxed, and to the circumstance that those who resort to such districts do so voluntarily and must be assumed to have accepted the risks encountered, Mr. Bayard, however, recognized the case as one of gross outrage and as presenting a failure of justice. As indicated, the Government admitted the claim as strongly appealing to its sovereign grace. (Mr. Bayard, Secretary of State, to the Chinese minister, supra; see also pp. 477, 482, with special reference to the standing and rights of aliens before our courts, pp. 483, 485, 486; see also quotation from special message of President Cleveland, March 2, 1886, pp. 470 et seq.)

Similarly, in the case of the Italian subjects at New Orleans killed by unknown persons, acting perhaps rather as a vigilance committee of citizens than as an ordinary mob, who broke the jail in which the Italians were confined or detained after their trial and acquittal on the charge of murder, although the acquittal of the Italians, who were assassins of the order of the Mafia or some allied secret organization, was as palpable a failure of justice as the acquittal of their slayers, the United States granted a moderate indemnity to the Italian Government on behalf of the families of those who were proved to have been Italian subjects. (Foreign Relations, 1891, pp. 727, 728; see also a review and discussion of the New Orleans Case by James Bryce, M. P., Littell’s Living Age, No. 2449, June 6, 1891, p. 579.) In this case also the United States contended that ordinarily the recourse of alien residents here to our courts was sufficient protection without the interposition of their Government, and that the interposition of their Government would not be justifiable.

In cases of the massacre of American citizens abroad or of riotous attacks upon them or destruction of or injury to their property, this Government has been accused of ignoring these principles and as demanding as a matter of right reparation and redress from the sovereignty in whose domains such occurrences took place. (Hall’s Int. Law, pp. 227, 228, note 1.) But such cases have arisen in countries where there was no effective punitive or civil procedure, as in nations of high civilization, open to foreigners as well as to natives; or where the Governments were unwilling or unable to secure a retributive or reparatory justice upon the application of private initiative, so that their judicial proceedings were either actually oppressive or futile; or where there was the additional reason that the injury consisted of attacks or aggressions upon a detachment of the naval or military forces of the United States temporarily ashore in the port of a friendly nation; or, finally, where the riot was understood to have been instigated by authorities charged with the duty of preserving the public peace. (Mr. Fish, Secretary of State, to Mr. Partridge, 2 Wheat. Int. Law Dig., 6025 Mr. Evarts, Secretary of State, to Mr. Bacon, ib., p. 696, passim; ib., pp. 642, 646; ib., p. 439 et seq.; assault on seamen of the Baltimore at Valparaiso, Foreign Relations, 1891, p. 194, passim.)

The case in our diplomatic history which comes nearest the present one in its main features is the Tunstall Case, the facts of which were that process of execution having issued from the courts of Lincoln County, N. Mex., against personal property of the partner of an English subject, a domiciled resident in New Mexico, a deputy sheriff proceeded to the Englishman’s ranch in order to attach certain live stock covered by the writ. He did not, however, then attach the property, and departed for the purpose of assembling a numerous posse, with which he returned to the ranch. Mr. Tunstall meanwhile had driven the stock away from the ranch, going in the direction of the county town. The deputy sheriff deputized one of his posse, with 18 others acting under his orders, to follow Mr. Tunstall and seize the stock. After pursuit this party overtook Mr. Tunstall, and, it was claimed, opened fire upon him. He retreated, but was shot and killed within a short distance. It further appeared that of the three members of the posse who saw the shooting (two of whom were probably guilty of it) two were afterwards killed and the survivor did not seem to have been brought to justice. The claim made by the English Government was that the sheriff, acting through his deputy and he in turn through the subdeputized leader of the pursuing party, was accountable for a murder committed in the execution of a process of law, and that the father of the murdered man, having a pecuniary interest in the life of his son, had a right to recover indemnity from the Government of the United States. The murder occurred in 1878.

In the note of Mr. Bayard, Secretary of State, to Mr. West (2 Wheat. Int. Law Dig., p. 679, passim) the following language is used:

Where a foreigner claiming to be injured has redress by appeal to the courts in the processes of the English common law, a diplomatic demand for indemnity will not he granted by the Government of the country in which the injury is claimed to have been received.* * * Numerous cases of this kind where the plaintiff was a foreigner and the defendant an officer by whom he was assaulted or falsely imprisoned or maliciously prosecuted are reported in the English books, and in no one of these cases can it be alleged that justice was not meted to the foreign plaintiff as freely as if he had been a British subject. It is with some pride, also, that it may be declared by this Department that throughout the United States the same impartial justice is administered. Even beyond this, in its scrupulous protection of the rights of foreigners, has our peculiar jurisprudence gone. A citizen of one of our States* * * is in ordinary cases limited to the State courts for redress. A foreigner suing in such State is given the election between the State courts and the district courts of the United States. The practical result of this fair dealing is even more marked in this country than in England. There are reported in our books multitudes of cases in which local officers of justice have been sued by foreigners in our courts for false imprisonment or for malicious prosecution or for assault, and this must needs be the case in communities like ours, in which a large proportion of the population consists of foreigners unfamiliar with our laws.* * * * The principle is therefore to be regarded as adjudicated as established by the highest international and domestic authority in accordance with the enunciation above given.* * * To accept the position of the British Government in this matter would, moreover, lead to utter confusion in the constituted arrangements of our system, which, like that of England, sedulously maintains the executive, judicial, and legislative departments distinct from each other. The claim now put forward, if allowed, would usurp judicial functions by the executive and legislative branches, and would substitute a government of will for a government of law. Private loss and injury ensue from temporary disorders and breaches of the peace under any government.

Referring to the mob at Pittsburg in 1878, the note proceeds:

No person who lost his property, nor the relatives of any who lost his life—and many lives were lost—ever pretended to hold the United States Government responsible. Under no aspect of the case is there any right under our law to redress such injuries as Mr. Tunstall suffered which is not as open to a foreigner lawfully within the United States as to any one of our own citizens. There is no discrimination between them in the forum in which all such claims are to be heard and decided, and that sole forum is provided in the courts of justice.* * * After a full review of all the facts and circumstances of the case, I am constrained to inform you that this Government can not admit any liability as attaching to it in the premises, either directly toward the representatives of the murdered man, or internationally toward Her Majesty’s Government demanding in their behalf.

The existing treaties with Austria throw no special light on the Lattimer Case. By Article I of the treaty of 1829 (Treaties and Conventions between the United States and other powers, 1776–1887, p. 23) it is provided that the citizens of the respective contracting powers shall mutually enjoy “the same security, protection, and privileges as natives of the country wherein they reside, on condition of their submitting to the laws and ordinances there prevailing.” And the Governments of Austria-Hungary and the United States, by Article I of the treaty of 1870 (ib., p. 37) reciprocally agree that their respective citizens who have resided under the dominion of the other Government uninterruptedly at least five years, and who, during such residence, have become naturalized citizens in the country of residence, shall be held and treated as United States citizens and citizens of the Austro-Hungarian monarchy, respectively, but that the declaration of an intention to become a citizen of one or the other country has not with either party the effect of naturalization. Article IV of this treaty provides that emigrants from either State, who are to be held as citizens of the other State, shall not on return to their original country be held to resume their former citizenship unless of their own accord they reacquire it and renounce the citizenship obtained by naturalization.

It may also be observed that under the treaty of 1829, Article XI, page 26, the Emperor of Austria reserves the right to prevent the emigration of his subjects.

It may be said, in view of the Thrasher Case (Ex. Doc, 1851–52, vol. 3, No. 10, pp. 1–7) that, without any formal domiciliation, a foreigner who comes to a country to settle permanently or for an indefinite time is not entitled to interposition of his Government if he is treated unjustly to the same extent or in the same sense as one who clearly does not change his position, and who therefore owes no more than a local or temporary allegiance to the country of residence. The chief point to be considered is the animus manendi, and a person residing in a foreign country is presumed to be there animo manendi; and if he commits a violation of the municipal law in the country of residence, a fortiori the interposition of his Government is not justifiable.

Quoting again from the Tunstall Case (p. 691):

He had entered upon what appears to have have been a permanent residence in New Mexico, and had engaged in a business conditioned on such permanency. If, as we must infer from this, when there is no evidence to the contrary, he was then domiciled in New Mexico, he was not, even as far as concerns the administration of the judicial function there, a foreigner, and on this issue alone his representatives can not appeal to the Government of his established domicile through a foreign sovereign for redress.

Before proceeding to the final consideration of the Lattimer Case upon its own facts, it may be well to quote from the article of Mr. Bryce referred to the following succinct statement of the principles and difficulties involved in questions arising on the status and treatment of aliens:

We may now sum up the conclusions to which the foregoing discussion has led us. They are these:

1. A foreign Government is prima facie entitled to redress for injuries lawlessly inflicted on its subjects, even if no treaty grants this right, and a fortiori if a treaty does in fact secure it.

2. This redress may be civil by way of pecuniary compensation, or criminal by the punishment of the offenders.

3. The civil form of redress presents no great difficulty. Primarily it may be had by way of civil action against the wrong doers; but if that is refused, or proves insufficient, the Government, in this instance Congress, may grant compensation, and to any extent it pleases.

4. The criminal form is more important, because it affords better security for the protection of alien residents in future. Redress in this form—that is, punishment, can be given, not by the Executive or legislature, but only by prosecution to conviction of the offenders under the ordinary law.

5. If punishment fails to be awarded, the defects of judicial procedure, or the perverseness of those who administer it locally, will be no answer to the complaint of a foreign Government, and if the denial of justice is palpable, and the case serious, a foreign Government will be entitled to treat such denial as a grave breach of international rights, possibly even as a casus belli.

6. This complication may arise in any country where the Executive cannot interfere with the ordinary process of law. It is, however, specially apt to arise in the United States, because—

(a) The Federal Government has, apparently, at present, no power to institute a prosecution for the lynching of aliens in a State.

(b) The Federal Government, even if it has this power, or if (as appears to be possible) it obtains this power by appropriate legislation, can not transfer the trial from the district where the offense was committed to some other district, still less create a special tribunal.

7. The Federal Government of the United States is in the further difficulty of not being able to interfere with the police of a State for the protection of aliens.

8. These difficulties are not, however, inherent in every Federal Government eo nomine. They arise out of the actual provisions of the United States Federal Constitution, and might have been avoided by a different drafting of that Constitution.

The Lattimer Case is clearly within the general principles laid down in international law and acted upon by the Department of State on the subject of aggressions toward and injuries to aliens and their property, even when resulting in their death. The basis upon which the law appears to rest is that, inasmuch as the courts of a civilized country are open for civil and criminal redress, and the machinery of justice to these ends is voluntarily and promptly set in motion by autonomous communities, and inasmuch as the means of redress in the election between State or Territorial and Federal courts is broader in the case of aliens than of citizens, no international right or claim is properly at issue. Much stronger, surely, is the case when, as here, upon a prompt examination, indictment, and arraignment, and upon a careful and orderly trial and solemn review of the facts by the court and the jury under full testimony taken, in a settled and long established portion of the country, an intelligent and impartially selected jury determines in effect by their verdict that those killed and wounded composed part of a riotous and lawless assemblage engaged in breaking the law and refusing obedience to the sheriff when repeatedly commanded to disperse by him, and that the consequent action of the sheriff and his posse was justifiable. Furthermore, as pointed out briefly in the report on the subject, even conceding for argument’s sake (which can by no means otherwise be conceded) that the action of the sheriff outran good judgment and sound discretion, and was consequently illegal; that the occasion did not justify his intervention with force, and that the killing was not only deplorable, but unnecessary, nevertheless, civil proceedings in the courts for damages on behalf of the sufferers should be brought and should appear to result in a failure of justice before a claim upon the Government may properly be presented.

In view of these considerations, it is impossible to admit that an appeal for reparation lies, so to speak, from the verdict of the jury to the high tribunal of the sovereign grace of the nation.

Respectfully submitted.

Henry M. Hoyt,
Assistant Attorney-General.

Washington, D. C., April 19, 1898.