Mr. Tower to Mr. Day.
Vienna, June 1, 1898.
Sir: I have the honor to recall to your attention my dispatch No. 34, of the 31st of December, 1897, in which I reported to the Department of State a conversation which I had had on the previous day with the Count Goluchowski, Austro-Hungarian minister of foreign affairs, in relation to the killing and wounding of certain Austrian and Hungarian subjects during the strike which took place at Hazleton, in Pennsylvania, upon the occasion when the sheriff of Luzerne County and his deputies fired against a riotous assemblage of people at Lattimer on the 10th of September, 1897. I presented therein the views expressed to me by the minister of foreign affairs, and I reported the replies which I had thought proper on that occasion to address to him, in view of the fact that I had received no instructions from the Department of State to treat directly with the Government of Austria-Hungary upon this subject, all the correspondence between the two Governments prior to that time having been carried on in Washington.
In answer to the minister of foreign affairs, who informed me of the complaint made by the Austro-Hungarian envoy in Washington that, although he had presented the claims of these people or their families to the Department of State, he had been unable to secure recognition for them, I said that, in so far as I understood the case, it related to the maintenance of public order under the laws of the State of Pennsylvania, and that the sheriff had acted in his official capacity when he gave the command to fire upon a body of men assembled in a riotous manner, who, in spite of his summons to disperse, had persisted in conduct which threatened the peace of the Commonwealth.
I said further, in reply to statements of eyewitnesses quoted in the dispatches of the Austro-Hungarian envoy in Washington from American newspapers, which set forth that the subjects of this Empire who had been killed or wounded were entirely peaceable and in no way concerned in or threatening a breach of public order, that I believed the action of the sheriff was about to be examined into by a court of competent jurisdiction in Pennsylvania, and that I felt certain no claims for damages could properly be entertained pending the decision of the court as to whether the sheriff was or was not completely justifiable in the steps he had taken as a public official.
My action was approved of by the Secretary of State in his dispatch No. 66 of the 20th of January, 1898, in which he inclosed to me for my information copies of the correspondence relating to this subject [Page 112] between the Department of State and the Austro-Hungarian envoy in Washington up to that time. I learned in a subsequent interview with the Count Goluchowski that copies of this correspondence had been transmitted to him, also, by the Austro-Hungarian envoy.
No further steps have been taken by me nor any further communication relating to this matter made to me until yesterday, when I received a note requesting me to call at the ministry of foreign affairs in order to discuss a question of importance to the interests of the United States and Austria-Hungary.
Upon presenting myself there, accordingly, I was met by the Count Welsersheimb, first chief of section of that ministry, who informed me that he wished to see me in connection with the Hazleton riots and the claims for damages arising therefrom as the result of the killing and wounding of certain Austrian and Hungarian subjects who were in the assemblage fired upon by the sheriff and his posse last September. The killing and wounding of these people, said the Count Welsersheimb, has produced an exceedingly painful impression in Austria-Hungary, where the accounts of it have been widely read and the various reports from American sources republished in the newspapers of the Empire, and the Imperial and Royal Government is solicitous that the subject may be brought once more to the serious attention of the Government of the United States. The Austro-Hungarian Government desires earnestly that the Government of the United States may entertain the claims for indemnity, which it believes itself to be in a position justly to present on behalf of the wounded men and of the families of those who were killed in Pennsylvania. The Count Welsersheimb informed me that the Austro-Hungarian envoy in Washington had complained that he could not obtain the satisfaction which he has hitherto sought in this matter at the Department of State, and that, in view of the fact that this important negotiation had not progressed as had been hoped that it would, and as the Imperial and Royal Government is exceedingly desirous that it should, the ministry of foreign affairs had decided to ask me to take up the question, in order that it might be presented directly to the Department of State from the standpoint adopted by the Austro-Hungarian ministry of foreign affairs.
I replied to the Count Welsersheimb, as I had previously done in this connection to the Count Goluchowski, that although I had received no special instructions to treat in regard to the claims of Austrian and Hungarian subjects arising out of the sheriff’s action at Lattimer, and I was not officially informed as to the decision which the Government of the United States may have arrived at in relation to the validity or inadmissibility of such claims, I should cheerfully accede to his request, and should convey to the honorable Secretary of State such communications as the Austro-Hungarian ministry of foreign affairs might wish to make through me, to the end that possible differences of opinion might be adjusted and the traditional relations of friendship and cordiality between the Government of the United States of America and that of His Imperial and Royal Majesty strengthened and maintained.
I called the attention of Count Welsersheimb to the fact, however, that since the former conversation which I had had with the minister of foreign affairs the question of the legality of the sheriff’s action upon the occasion of the shooting at Lattimer had been examined into in due form of law; that the sheriff himself and 68 of his deputies had been indicted by the grand jury of Luzerne County, Pa., in the month of October, 1897; that the defendants were indicted jointly for murder, with a second count for manslaughter in the case of each man killed. [Page 113] They were also indicted jointly, in a separate indictment, for the felonious wounding of each man; and they were all indicted jointly, under a third indictment for murder, with a second count for manslaughter of ail the men killed; that the indictment selected for trial was one for murder and manslaughter of one Michael Ceslak, which was regarded as a test case, and that the trial was duly held at the court-house in the city of Wilkesbarre, the county seat of Luzerne County, Pa., before the Hon. Stanley Woodward, president judge of the courts of said county, and a jury, in the months of February and March, 1898; that after a full and fair trial, during which the whole testimony of the prosecution was presented by 103 witnesses, consisting of strikers who accompanied the march to Lattimer and were present at that place, of bystanders and eyewitnesses, of clergymen and others who saw and attended the dead and wounded after the firing had taken place; and, after the testimony of 111 witnesses for the defense, the jury rendered a verdict of not guilty on the charge, as contained in the indictment, as to all defendants.
The Count Welsersheimb informed me that he was aware of these facts, and that he had in his possession a copy of the official report of Henry M. Hoyt, esq., Assistant Attorney-General of the United States, who followed the trial at Wilkesbarre on behalf of the Department of State, which had been transmitted to the ministry of foreign affairs by the Austro-Hungarian envoy at Washington.
I then called his attention particularly to the statement of Mr. Hoyt made in that report that—
The case was earnestly and thoroughly conducted for both the prosecution and defense. The trial was dignified and orderly. There was no evidence of feeling or prejudice on the part of the audience, and opposing counsel, while keen and earnest in their conduct of proceedings, fully submitted themselves to the control of the court and the proprieties of the situation. I am clearly of the opinion that the case was in all respects soberly, properly, and fairly tried; that there was abundant evidence to support the verdict, and that it can not be successfully claimed that, under all the circumstances involved, the verdict was not a just and righteous one.
On the other hand, however, the Count Welsersheimb exhibited to me a report, also transmitted by the Austro-Hungarian envoy in Washington, made by Robert D. Coxe, esq., of Philadelphia, who followed the trial of the sheriff and his deputies at Wilkesbarre on behalf of the Austro-Hungarian Government. This paper is dated on the 22d of April, 1898.
Mr. Coxe opens his report by the statement in the first sentence: “The trial resulted in a miscarriage of justice.” Continuing, he says:
Of the 109 witnesses called by the prosecution a very large majority were actual eyewitnesses of the occurrence at Lattimer on the 10th of September, 1897. Their great number entirely precludes the possibility of their having told a prearranged story to the jury. It is a remarkably consistent narrative that each witness relates. Had the Commonwealth confined itself to a moderate though legally sufficient amount of proof, it might have eventually left room for a just doubt as to the actual merits of the important issue. This was indeed in substance the tactics adopted by the other side, and the Commonwealth’s liberal contribution to the history of the affair presents a suggestive contrast to the meager testimony offered by the defense as to what transpired at Lattimer September 10, 1897.
It would accordingly appear to be Mr. Coxe’s opinion that the prosecution proved too much.
Arguing further, he observes:
It is true that the defense called a host of witnesses. A large proportion of these were, however, offered solely for the purpose of showing a condition of affairs previous to the shooting, in justification of the summoning of the posse comitatus. This part of the defense entirely failed to fill the measure of proof necessary to establish such a justification.
Mr. Coxe declares that he does not believe it possible for any impartial person, uninfluenced by local passion or prejudice, to realize from all this mass of testimony that in the Hazleton region during the week ending September 10, 1897—
The community was in terrorem publici, which condition of the population of the neighborhood is an essential prerequisite to the summoning of a posse comitatus. It is highly probable, indeed, and there is fair ground for argument favorable to the prosecution based upon such probability, that the mere presence of the posse comitatus in the neighborhood of Hazleton for the week preceding the occurrence at Lattimer unduly excited the population and gave birth to those very apprehensions. Certainly the evidence is insufficient to establish a legal warrant for the formation of the posse comitatus on September 6. Therefore the summary organization of the posse comitatus was a precipitate and premature performance. It was a palpable device, in the interest of the coal operators, to thwart the lawful schemes of the employees under the color of law.
Turning to the subject of the witnesses called by the defense to testify to the Lattimer shooting, Mr. Coxe declares:
The most important of these were the sheriff and deputies themselves. It is not to be overlooked that but seven of the posse comitatus, including the sheriff, were put upon the witness stand, and that all of them but one—Haen—denied having fired at the strikers. When it is considered that the sole defense interposed was justification created by the presence of a dangerous mob of rioters, it is difficult to explain, on any theory consistent with the innocence of the deputies, why the fact of the shooting, impliedly admitted by the very character of the defense, should not have been testified to by some of these witnesses. Its careful exclusion by the counsel for the defense finds its obvious and only adequate explanation in the consciousness of guilt. The preponderance of evidence as to the true character of the Lattimer affair is, then, unquestionably that of the Commonwealth.
Referring to the question whether the strikers were armed, he concludes:
No threatening display or use was made of any weapons by the main body of the strikers on September 10, or, indeed, at any other time; and giving the testimony for the defense on this subject the widest possible range and indulgence—all that may with any approach to accuracy be asserted—is that two or three of this large assemblage of strikers did, on the occasion in question, indulge in an alarming manifestation of weapons. Conceding so much, and it is the very utmost the evidence permits, there still remains an absolute absence of provocation for the wholesale destruction of human life which attended the encounter of the sheriff and his deputies with the miners on September 10. Mr. Martin was the principal defendant, and, of course, the most important witness for the defense, and, as observed, the merits of the defense depend, in very great measure, upon the efficacy of his testiony. It is there shown, it is believed, that by the sheriff’s own carefully considered and rehearsed testimony a substantial provocation for the shooting by the deputies fails to be disclosed.
I did not consider myself, of course, either authorized or empowered to dispute the merits of this case with the learned counsel employed by the Austro-Hungarian Government, with whose conclusions I do not in the least agree. Though I ventured to suggest to the Count Welsersheimb caution in placing reliance, after the verdict, upon arguments as to questions of fact which under our procedure are properly, and in this instance no doubt were fully, submitted to the court and jury during the pendency of the trial.
In terminating his report Mr. Coxe advises his clients that—
There is no question that the verdict of the jury met with general acceptance throughout the country. The opinion has been almost universally expressed that the killing of the miners at Lattimer had a salutary effect, even though, as was commonly conceded might be the fact, there was no legal justification for the firing by the deputies. The state of mind which is crystallized in this opinion, no doubt, entered into the jury box. This indicates how impossible it is to secure local justice for those who suffered, directly and indirectly, by the Lattimer affair, or to obtain punishment for those who, without sufficient warrant, assumed to interpret [Page 115] and summarily execute the law. For this failure of justice on the part of the duly constituted authorities of the Commonwealth of Pennsylvania a responsibility attaches to the Government of the United States for the deaths and personal injuries of subjects of a foreign power in consequence of such denial and miscarriage of justice.
The claim of the Austrian Government against the United States is materially strengthened by the circumstance that the action of the sheriff and his deputies at Lattimer on September 10, 1897, was by no means of effect to restore order and obedience to law. So far from that result, it precipitated a condition of affairs in the Hazleton region infinitely worse than that which, according to the testimony in the case of the Commonwealth v. Martin, existed previous to that date. There was thereby rendered imperatively necessary the immediate calling out of the State troops, whose presence was required to restore that peace and order which the unjustifiable shooting at Lattimer had destroyed, and the expense of whose transportation and maintenance entailed a charge upon the State of Pennsylvania of over $150,000. In the light of this remarkable sequel to the occurrence at Lattimer, it is impossible to adopt the conclusion that it was either inevitable as a lawful necessity or as a means to the end of enforcing obedience to the law.
It is but fair for me to say, as a matter of private opinion gained by observation in this case, that I do not believe that the Austro-Hungarian Government, which would be far from willing to concede that a verdict and judgment rendered after fair and open trial before a duly constituted tribunal in accordance with the established law of the Empire, and carried on within its jurisdiction, was “a miscarriage of justice, has been seriously influenced by the report of its counsel in Philadelphia. Upon my inquiry of the Count Welsersheimb as to what specific representations the imperial and royal ministry of foreign affairs wished me to make to the Department of State of the United States of America, he replied that there were two, to wit:
- (1)
- “That the claims for indemnity on behalf of the Austrian and Hungarian subjects killed and wounded at Lattimer ought not to be concluded by the trial for murder and manslaughter and the acquittal of the sheriff and his deputies in Luzerne County, Pa.;” and that,
- (2)
- “The injured parties in interest should not be put to the remedy indicated by Mr. Hoyt in his report to the Department of State, as follows: ‘It appears to me that the liability of the sheriff and his deputies for damages to those injured must previously be established by civil suit before any larger or other claim could be considered; and that, inasmuch as the courts of this country, State and Federal, are freely open to all parties, native and foreign, and that foreigners may elect in such cases to proceed in the Federal courts or the State courts at their pleasure, I can perceive no reason why the foregoing considerations, which are very obvious at this stage of the Lattimer transactions, are not applicable to aliens as well as to citizens.’”
The position here assumed by the Austro-Hungarian ministry of foreign affairs is that such questions ought still to remain the subject of international negotiation.
I declared to the Count Welsersheimb my willingness to present this view to the Government of the United States. But, at the same time, I called his attention to the fact that the United States Government has already established the doctrine that in the case of its own citizens who have chosen to resort to other countries and to reside there such citizens must comply with the laws which prevail in the country of their residence.
I quoted to him the report of Mr. Webster, Secretary of State, to the President in 1851 (Whart., Int. Law Dig., III, par. 230), who says:
Our citizens who resort to countries where the trial by jury is not known, and who may there be charged with crime, frequently imagine, when the laws of those countries are administered in the forms customary therein, that they are deprived of [Page 116] the rights to which they are entitled, and therefore may expect the interference of their own Government. But it must be remembered, in all such cases, that they have of their own free will elected a residence out of their native land and preferred to live elsewhere and under another Government and in a country in which different lawsprevail. Having made this election, they must necessarily abide its consequences. No man can carry the aegis of his national American liberty into a foreign country and expect to hold it up for his exemption from the dominion and authority of the laws and the soverign power of that country, unless he is authorized to do so by virtue of treaty stipulations.
And I reminded him further of the obligations to which the American Government holds its own citizens responsible in foreign countries by quoting to him the language of Mr. Marcy, Secretary of State, to Mr. Jackson, United States chargé d’affaires in Vienna, in a case which arose in 1855 in Austria itself. (Whart., Int. Law Dig., III, par. 230.) The Secretary of State declares, in that case, that the system of proceedings in criminal cases in the Austrian Government has many features which differ from our own, and “has not always provided the safeguards which our laws provide for the security of the accused; but it is not within the competence of one independent power to reform the jurisprudence of others, nor has it the right to regard as an injury the application of the judicial system and established mode of proceedings in foreign countries to its citizens when fairly brought under their operation. All we can ask of Austria, and this we can demand as a right, is that in her proceedings against American citizens, prosecuted for offenses committed within her jurisdiction, she should give them the full and fair benefit of her system, and deal with them as she does with her own subjects or those of other foreign powers. She can not be asked to modify her mode of proceedings to suit our views. It can not be expected that any Government would go so far as to yield to a pretension of a foreign power to revise and review the proceedings of its courts, under the claim of an international right to correct errors therein, either in respect to the application of principles of law or the appreciation of facts as evidence in cases where the citizens of such foreign power have been convicted. It certainly could not be expected that such a claim would be allowed before the party making it had first presented a clear case, prima facie of willful denial of justice or a deliberate perversion of judicial forms for the purpose of oppression.”
This, I reminded the Count Welsersheimb, is the principle adopted by the Government of the United States in regard to its own citizens who may become criminally liable within the jurisdiction of other sovereign States, and this is the principle which it applies to the subjects of other powers criminally liable within its own jurisdiction.
He replied that the Government of Austria-Hungary desires to treat this question in the most friendly spirit with the Government of the United States, always having due regard to the established principles of justice and equity in both countries; but that it feels itself obliged by the interests of its own subjects to urge upon the Department of State, with all reasonable force under the circumstances, the claims for indemnity of such Austrians and Hungarians as may have been wounded in the occurrence last September in Pennsylvania, and of the families of such of them as may then have been killed.
He wishes me to inform the Department of State that the Government of the Emperor trusts that the Government of the United States will be moved by considerations of charity and humanity toward those people to give a benevolent hearing to their appeal; and he besought me to convey its most earnest desire that upon this broad and liberal [Page 117] basis something may be done by which they may finally obtain the relief they have been seeking.
I promised him that I should convey this sentiment to the Government of the United States as he requested.
I have the honor, etc.,
United States Minister.