Mr. Hengelmüller to Mr. Day.
Washington, April 26, 1898.
Mr. Secretary of State: I have had the honor to receive your note of the 15th instant, No. 216, as an inclosure to which you had the kindness to transmit to me the report of the Assistant Attorney-General concerning the trial of Sheriff Martin and his deputies at Wilkesbarre.
I see, by a careful examination of the latter document, that the representative of the Federal Government expresses the opinion that there is no ground for a claim for indemnity for the Austrian and Hungarian subjects who were killed or injured at Lattimer, or for their surviving relatives, and that he bases his conclusion mainly upon the following considerations:
- 1.
- That the case was tried in all respects soberly, properly, and fairly, and the verdict of the jury was a just and righteous one.
- 2.
- That the testimony on the subject and the study and consideration of the facts and questions involved have led him to the conclusion that the sheriff and his deputies conducted themselves, throughout the events which led up to the fatality, with patience and forbearance; that the conflict was inevitable, if order was to be preserved and law enforced, and that, under the circumstances, the action of the sheriff:’ and his posse, although lamentable in its results, was clearly justifiable.
- 3.
- That there is no good authority to support the right to indemnity in the absence of any suit brought or civil decision rendered, and that the liability of the sheriff and his deputies for damages to those injured must be established by a civil suit before any larger or other claim can be considered.
As to the first point, I have the honor to call your attention to the fact that my Government, which from the outset has reserved the right to present a claim for indemnity to the Federal Government on account of the occurrences at Lattimer, has repeatedly, and especially by my note of the 30th of December last, stated that it can not consider the question of the guilt or innocence of Sheriff Martin as synonymous with the question whether its subjects are entitled to an indemnity, and that it can not make the presentation of a claim for indemnity contingent upon the result of the verdict at Wilkesbarre.
As to the second point, I have the honor to inform you, Mr. Secretary of State, that the reports made to me by the counsel of this legation concerning the result of the trial, lead to an opinion concerning the action of Sheriff Martin which is quite different from the conclusions reached by the Assistant Attorney-General. I shall soon take the liberty again to discuss this point in detail, it being decisive as regards the question now before us, and to transmit the documentary evidence. I will here merely state that the very assertion of Sheriff Martin clearly shows the lack of any sufficient ground for the destruction of so many human lives, and causes his own action and that of his deputies to appear at least precipitate and inconsiderate.
As regards the third point, the reference of a claim for indemnity by one Government against another to civil process seems to me to be an absolute innovation in international law. I am not aware that the Federal Government, in cases in which its citizens have suffered injury through the action or failure to act of the authorities of another State, [Page 111] and in which it has claimed an indemnity therefor from the Government of that State, has made the presentation of its claims contingent upon a civil suit, against those authorities before the courts of that State.
I have, in the meantime, transmitted the report of the Assistant Attorney-General to the Imperial and Royal Government, and after receiving its answer I shall have the honor to resume the discussion of this matter.
I avail myself, etc.,