§ 89. Mr. Webster's position.-The above section is quoted almost verbatim from a résumé of the occurrences of 1851,

to witness the desecration or deg- | erroneous, that they had been exeredation of the national banner of cuted without any trial whatever, his country. It appears, however, caused an excitement in the city, that in point of fact no flag was the outbreak of which the public actually flying or publicly exhib- authorities were unable for the ited when the outrage took place; moment to prevent or control. but this can make no difference in "Mr. Calderon expresses the regard to the real nature of the opinion that not only ought indemoffence or its enormity. The per- nification to be made to Mr. Lasons composing the mob knew that borde, her Catholic Majesty's conthey were offering insult and injury sul, for injury and loss of property, to an officer of Her Catholic Majesty, but that reparation is due also from residing in the United States under the government of the United States the sanction of laws and treaties; to those Spaniards residing in New and, therefore, their conduct ad- Orleans whose property was injured mits of no justification. Neverthe- or destroyed by the mob; and inless, Mr. Calderon and his gov-timates that such reparation had ernment are aware that recent been verbally promised to him. intelligence had been received from Havana, not a little calculated to excite popular feeling in a great city, and to lead to popular excesses. If this be no justification, as it certainly is none, it may still be taken into view, and regarded as showing that the outrage, however flagrant, was committed in the heat of blood, and not in pursuance of any predetermined plan or purpose of injury or insult.

The undersigned sincerely regrets that any misapprehension should have grown up out of any conversation between Mr. Calderon and officers of this government on this unfortunate and unpleasant affair; 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 "The people of the United States rights of the Spanish consul, a pubare accustomed, in all cases of al- lic officer residing here under the leged crime, to slow and cautious protection of the United States investigation and deliberate trial Government, are quite different before sentence of condemnation is from those of the Spanish subjects passed, however apparent or how- who have come into the country to ever enormous the imputed offence mingle with our own citizens, and may be. No wonder, therefore, here to pursue their private busithat the information of the execu- ness and objects. The former may tion, so soon after their arrest, of claim special indemnity; the latter the persons above referred to are entitled to such protection as most of whom were known in New is afforded to our own citizens. Orleans, and who were taken not "While, therefore, the losses of in Cuba, but at sea, endeavoring to individuals, private Spanish subescape from the island-should jects, are greatly to be regretted, have produced a belief, however yet it is understood that many

contained in a note written in 1891 by Mr. Blaine to the Marquis Imperiali, in regard to the Mafia riots, which will be referred to at a subsequent point in this chapter.1

Mr. Webster in 1851 took the position that the widows and children of the United States citizens who had lost their lives by mob violence could sue the leaders and members of the mob only in the courts of the State of Louisiana, while the widows and children of Spanish subjects had the right to sue each member of the mob, not only in the State courts, but also before the federal tribunals for the District of Louisiana; there was an attempt made to disclaim all responsibility American citizens suffered equal "In conclusion, the undersigned losses from the same cause. And has to say, that if Mr. Laborde these private individuals, subjects shall return to his post, or any of her Catholic Majesty, coming other consul for New Orleans shall voluntarily to reside in the United | be appointed by her Catholic MaStates, have certainly no cause of jesty's Government, the officers of complaint, if they are protected by this government, resident in that the same law and the same admin- city, will be instructed to receive istration of law as native-born citi- and treat him with courtesy, and zens of this country. They have, with a national salute to the flag in fact, some advantages over citi- of his ship, if he shall arrive in a zens of the State in which they Spanish vessel, as a demonstration happen to be, inasmuch as they of respect, such as may signify to are enabled, until they become cit- him, and to his government, the izens themselves, to prosecute for sense entertained by the governany injuries done to their persons ment of the United States of the or property in the courts of the gross injustice done his predecessor United States, or the State courts, by a lawless mob, as well as the at their election. The President is indignity and insult offered by it to of opinion, as already stated, that a foreign State, with which the for obvious reasons the case of the United States are, and wish ever consul is different, and that the to remain, on terms of the most government of the United States respectful and pacific intercourse. should provide for Mr. Laborde a just indemnity; and a recommendation to that effect will be laid before Congress at an early period of its approaching session. This is all which it is in his power to do. The case may be a new one; but the President, being of opinion that Mr. Laborde ought to be indemnified, has not thought it necessary to search for precedents.

"The undersigned avails himself of this occasion to offer to Mr. Calderon renewed assurances of his most distinguished consideration." (Foreign Relations of the U. S., 1851-52, pp. 63-65.) See also 2 Wharton's Digest, § 226. § 89.

1 See § 94, post, and extracts from Secretary Blaine's note in the footnote to that section.

on the part of the federal government for the violence done to Spanish citizens.2

§ 90. Indemnity ultimately paid to sufferers.-Two years later, however, in recognition of the magnanimous conduct of the Queen of Spain in pardoning American citizens who had unjustifiably invaded the Island of Cuba, a joint resolution was adopted by Congress and approved by President Fillmore March 3, 1853, indemnifying the Spanish Consul and other Spanish subjects for the losses sustained in the New Orleans mob of 1851. The State department, however, are on record as stating in the letter above referred to that the considerations upon which this resolution was passed were held not to contravene the original position of Mr. Webster, which was shared also by President Fillmore.1

§ 91. The Mafia Riots in New Orleans of 1891.-On March 14, 1891, a number of Italians then confined in the jail in New Orleans, were forcibly taken from the jail and hanged, by the action of a large number of citizens.

The episode has passed into history under the title of the Mafia Riots. Many of the respectable citizens of New Orleans, however, claim that it was not in the nature of a riotous outbreak, but a mere enforcement of justice in a summary manner after the local courts had failed to administer it in pursuance of law upon criminals who had, under a regular organization, committed many atrocious crimes, and that the method adopted was the only practical way of putting a complete stop to the outrages which they claimed had been committed through the "Mafia."

The Marquis Rudini immediataly cabled from Rome to Baron Fava, the Italian Minister to the United States, "to denounce immediately to the United States government the atrocious deed of New Orleans, requesting immediate and energetic steps to repress the riot, to protect the Italian colony endangered thereby, and also to severely punish the guilty."

Baron Fava made a formal demand at once upon Mr. Blaine, who was then Secretary of State. A lengthy correspondence ensued between Governor Nicholls of Louisiana

2 See § 88 ante.

§ 90.

1 U. S. Foreign Relations Reports 1891, p. 684.

and Mr. Blaine in regard to the occurrences, and between Mr. Blaine and Baron Fava as to the liability of the United States. § 92. Complications arising from the Mafia Riots.-This correspondence is very lengthy, comprising over fifty pages of the Foreign Relations Reports of 1891. On April 2, 1891, the Italian government repeated its demand for prompt settlement of its claims, and demanded indemnity for the families of the men who had been killed.

The correspondence shows that, at times, the situation became quite acute and various questions other than the liability of the Federal Governinent were involved, such as the conduct of the Italians, and whether or not they had retained their citizenship of Italy and were entitled to the protection of the Italian government. So strained did the relations between the Governments of the United States and Italy become that the Italian Minister withdrew from Washington and diplomatic relations were for a time practically suspended.

We are, however, interested only in the single point as to the position taken in the correspondence by the two governments as to the liability of the Government of the United States, for the failure of the State government of Louisiana, to afford to Italian citizens the protection to life and property which is reciprocally assured to the citizens of the two countries under the then existing treaty stipulations.

§ 93. Action of the State courts of Louisiana.-A grand jury, consisting of many prominent citizens of New Orleans, found that the acquittals of the Italians by trial juries were improper, and that the uprising of citizens and the resulting summary executions, or lynchings, were the result of the dangerous form which the "Mafia" had assumed; and that the respectable element of New Orleans feared that unless some such prompt and energetic action was taken it would be impossible to suppress the Italian secret societies and prevent the recurrence of similar atrocities, which had increased to a tremendous extent owing to the practical immunity afforded by the constant acquittal of persons brought to trial.1

§ 93.

The report of the Grand Jury appears at length at page 714 et seq.

of the Foreign Relations Reports for 1891.

None of the participants in the "summary execution" of the Italians were indicted or tried. The Italian government protested against the non-punishment of the parties whom it claimed had participated in the killing of Italian citizens and the gross violations of treaty stipulations. In the Circuit Court of the United States it was held that the heirs of the Italians who had been killed could not recover.

2 This was an action arising out of | Court. Hubgh vs. The New Orleans what are known as the Mafia Riots and Carrollton Railroad Company, 6 in New Orleans in 1891. The plain- La. Ann. 495; Hermann vs. The New tiff recovered a judgment for five Orleans and Carollton Railroad thousand dollars for the death of Company, 11 La. Ann. 5. In the her son, who was killed during the absence of a statute giving a remcourse of the riots. He was an edy, public or municipal corporaItalian citizen. The liability of tions are under no liability to pay the municipal governments arising for the property of individuals deout of the treaty relations of the stroyed by mobs or riotous assemtreaty with Italy of 1871, involved blages. Addison on Torts (notes by this case. The Circuit Court of Dudley & Baylies, 1880), sec. 1530; Appeals reversed the decision with 2 Dillon's Municipal Corporations, instructions to maintain the excep- sec. 959." tion of non-liability of the city and to dismiss the plaintiff's petition as stated in the opinion (pp. 541-42): "The City of New Orleans by her pleadings admits the gross negligence charged in the petition in the performance of the duties de-proclaimed on November 23, 1871, volving upon the municipality un- guarantees to the citizens of either der the constitution and laws of nation in the territory of the other the state above referred to, where- the most constant protection and by Abbagnato lost his life at the security for their persons and prophands of a mob while in the cus-erty,' and further provides that tody of the law; and the question presented in this case is whether on such admission of facts the city can be held liable in damages.

"It is well settled that at common law no civil action lies for an injury to a person which results in his death. Insurance Company vs. Brame, 95 U. S. 754, 756; Dennick vs. Railroad Company, 103 U. S. 11, 21; The Harrisburg, 119 U. S. 199, 214. The rule is the same under the civil law, according to the decisions of the Louisiana Supreme

The effect of a treaty upon the question involved was discussed and disposed of at the opening of the opinion as follows:

"The treaty between the Kingdom of Italy and the United States,

they shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives.' Treaty of November 23, 1871, 17 Stat. (Treaties) 49, 50, art. 3. This treaty applies to this case only so far as to require that the rights of the plaintiff shall be adjudicated and determined exactly the same as if she were, and her deceased son had been, a native citizen of the United States."