§ 94. Mr. Blaine's position.-On April 14, 1891, Secretary Blaine sent a lengthy note to the Marquis Imperiali containing a résumé of the positions taken by the United States on such subjects, and in which he recited the incident of the Spanish Mob of 1851, already referred to in this chapter,' and also declared, that "if it shall be found, as seems probable, that criminal proceedings can only be taken in the courts of Louisiana the President can, in this direction, do no more than to urge upon the State officers the duty of promptly bringing the offenders to trial."

A statement at the end of his letter, however, contained a qualified admission as to the liability of the United States, if the facts were as claimed by the Italian government.

Mr. Blaine's letter is exceedingly guarded as to all possible liability of the United States and the extract in the notes appended to this section shows that he took the position that the citizens of foreign countries residing in our States must seek their redress from the courts of those States, and that the United States government does not become the insurer of lives of the citizens of foreign countries, even though it may enter into treaty stipulations with them, but that all it can do or is called upon to do is to afford to citizens of those countries the same rights which citizens of the United States are accorded under similar circumstances.2

New Orleans vs. Abbagnato, U. S. Cir. Ct. App., 5 Cir., 23 U. S. App. 533, PARDEE, J.

§ 94.

1 See § 88 ante.

2 The correspondence between this country and Italy in regard to the Mafia Riots appears in the Foreign Relations Reports for 1891. The following is an extract from a note sent on April 14, 1891, by James G. Blaine, then Secretary of State, to the Marquis Imperiali, the Italian minister to the United States:

"If it shall result that the case can be prosecuted only in the State courts of Louisiana, and the usual judicial investigation and procedure under the criminal law is not resorted to, it will then be the duty of the United States to consider whether some other form of redress may be asked. It is understood that the State grand jury is now investigating the affair, and, while it is possible that the jury may fail to present the indictments, the United States cannot assume that such will be the case.

"The United States did not by the treaty with Italy become the insurer of the lives or property of Italian subjects resident within our territory. No Government is able, however high its civilization, however vigilant its police supervision, however severe its criminal code,

95. Final result of the Mafia cases.-A year after the Mafia Riots, Secretary Blaine tendered to the Italian government 125,000 francs to be distributed by that government and however prompt and inflexible its criminal administration, to secure its own citizens against violence promoted by individual malice or by sudden popular tumult. The foreign resident must be content in such cases to share the same redress that is offered by the law to the citizen, and has no just cause of complaint or right to ask the interposition of his country if the courts are equally open to him for the redress of his injuries. The treaty, in the first, second, third, and, notably, in the twenty-third articles, clearly limits the rights guaranteed to the citizens of the contracting powers in the territory of each to equal treatment and to free access to the courts of justice. Foreign residents are not made a favored class. It is not believed that Italy would desire a more stringent construction of her duty under the treaty. Where the injury inflicted upon a foreign resident is not the act of the Government or of its officers, but of an individual or of a mob, it is believed that no claim for indemnity can justly be made, unless it shall be made to appear that the public authorities charged with the peace of the community have connived at the unlawful act, or, having timely notice of the threatened danger, have been guilty of such gross negligence in taking the necessary precautions as to amount to connivance.

"If, therefore, it should appear that among those killed by the mob at New Orleans there were some Italian subjects who were resident or domiciled in that city, agreeably to our treaty with Italy, and not in violation of our immigration laws, and who were abiding in the peace of the United States and obeying the laws thereof and of the State of Louisiana, and that the public officers charged with the duty of protecting life and property in that city connived at the work of the mob, or, upon proper notice or information of the threatened danger, failed to take any steps for the perservation of the public peace and afterwards to bring the guilty to trial, the President would, under such circumstances, feel that a case was established that should be submitted to the consideration of Congress with a view to the relief of the families of the Italian subjects who had lost their lives by lawless violence." (Foreign Relations of the United States, 1891, p. 685.)

Mr. Blaine's note being transmitted to his government called forth the following cable reply from the Marquis Rudini to the Marquis Imperiali which was received at the State Department May 4, 1891:

"I have now before me a note addressed to you by Secretary Blaine, April 14. Its perusal produces a most painful impression upon me. I will not stop to lay stress upon the lack of conformity with diplomatic usages displayed in making use, as Mr. Blaine did not hesitate to do, of a portion of a telegram of mine communicated to him in strict confidence, in order to get rid of a question clearly defined in our official documents, which alone possess a diplomatic value. Nor will I stop to point out the reference in this telegram of mine of March 24, that the words 'punishment of the guilty' in the brevity of telegraphic language

amongst the families of the victims; the letter offering this indemnity disclaimed any liability on the part of the United States government, as appears by the following extract:

"While the injury was not inflicted directly by the United States, the President, nevertheless, feels that it is the solemn duty, as well as the great pleasure, of the national government to pay a satisfactory indemnity. Moreover the President's instructions carry with them the hope that the transaction of to-day may efface all memory of the unhappy tragedy; that the old and friendly relations of the United States and Italy may be restored; and that nothing unsignified only that prosecution ought to be commenced, in order that the individuals recognized as guilty should not escape punishment.

"Far above all astute arguments remains the fact that henceforth the Federal Government declares itself conscious of what we have constantly asked, and yet it does not grant our legitimate demands.

"Mr. Blaine is right when he makes the payment of indemnity to the families of the victims dependent upon proof of the violation of the treaty; but we shrink from thinking that he considers that the fact of such violation still needs proof. Italian subjects acquitted by American juries were massacred in prisons of the State without measures being taken to defend them.

"What other proof does the Federal Government expect of a violation of a treaty wherein constant protection and security of subjects of the contracting parties is expressly stipulated?

"We have placed on evidence that we have never asked anything else but the opening of regular proceedings. In regard to this, Baron Fava's first note, dated March 15, contained even the formula of the telegram addressed on the same day by Mr. Blaine, under the order of President Harrison, to the governor of Louisiana. Now, however, in the note of April 14, Mr. Blaine is silent on the subject which is, for us, the main point of controversy.

"We are under the sad necessity of concluding that what to every other government would be the accomplishment of simple duty is impossible to the Federal Government. It is time to break off the bootless controversy. Public opinion, the sovereign judge, will know how to indicate an equitable solution of this grave problem.

"We have affirmed, and we again affirm, our right. Let the Federal Government reflect upon its side if it is expedient to leave to the mercy of each State of the Union, irresponsible to foreign countries, the efficiency of treaties pledging its faith and honor to entire nations.

"The present dispatch is addressed to you exclusively, not to the Federal Government.

"Your duties henceforth are solely restricted to dealing with current business." (Foreign Relations of the United States, 1891, p. 712.)

toward may ever again occur to disturb their harmonious friendship."

The Marquis Imperiali replied, accepting the indemnity and declaring that the diplomatic relations between Italy and the United States were, from that moment, fully reestablished. Thus ended one of those unfortunate occurrences which are possible even in the most civilized countries and which, unless they are settled diplomatically by both sides making concessions, may result in strained relations between governments, which oftentimes are, unhappily, only terminated by war.1

$95.

to assure you that your prolonged

1 The correspondence was as fol- service at this capital as chargé lows:

From Mr. Blaine to the Marquis Imperiali, April 12, 1892:

"Sir: I congratulate you that the difficulty existing between the United States and Italy growing out of the lamentable massacre at New Orleans in March of last year is about to be terminated. The President, feeling that for such an injury there should be ample indemnity, instructs me to tender to you 125,000 francs. The Italian Government will distribute this sum among the families of the victims.

des affairs has been marked by every quality that renders you grateful and acceptable to the Government of the United States, and to renew to you the assurance of my high consideration." (Foreign Relations of the United States, 1891, pp. 727, 728.)

The Marquis Imperiali to Mr. Blaine April 12, 1892:

"Mr. Secretary of State: You were pleased to inform me, by your note of today, that the Federal Government has decided to pay to Italy, by way of indemnity, the sum of 125,000 francs, which will be distributed by the Italian Government among the families of the royal subjects who were victims of the massacre which took place March 14, 1891, in the city of New Orleans. Your excellency also expresses the hope that the decision reached by the President will put an end to the unfortunate incident to which that deplorable occurrence gave rise, and that the relations between the two countries will be firmly re-established.

"While the injury was not inflicted directly by the United States, the President nevertheless feels that it is the solemn duty, as well as the great pleasure, of the National Government to pay a satisfactory indemnity. Moreover, the President's instructions carry with them the hope that the transaction of today may efface all memory of the unhappy tragedy; that the old and friendly relations of the United States and Italy may be restored; and that nothing untoward may "After having taken note, with ever again occur to disturb their much pleasure, of the language harmonious friendship. used by the President in his mes"I avail myself of this occasion | sage of December last, and after

896. The Montijo" case; claims by the United States against other confederations; federal responsibility for acts of State. In April, 1871, the steamer Montijo belonging to citizens of the United States was seized by revolutionists while on a voyage to Panama, being at the time within the jurisdiction of the United States of Colombia.

The claim was duly presented and after an extended diplomatic correspondence an agreement of arbitration was entered into between the United States and the Colombian government in August, 1874. During the course of the correspondence the question of the liability of the central government of Colombia for the acts of the State of Panama which was one of the constituent States forming that confederation was raised. The United States claimed that under the peculiar circumstances the acts constituted a breach of treaty stipulations for which the federal government was liable. On the other hand the Colombian government disclaimed all lia

in the past and as it is to be hoped they will ever be in the future.

having fully appreciated the words of regret and censure uttered with so much authority by the Chief "In bringing the foregoing to Magistrate of the Republic, and your knowledge, in virtue of the likewise the recommendations that authorization given me by his exwere suggested by the lamentable cellency the Marquis di Rudini, incident to his lofty wisdom, His president of the council, minister Majesty's Government is now of foreign affairs, in the name of happy to learn that the United | the Government of his Majesty, the States acknowledge that it is their King of Italy, my August Soversolemn duty, and at the same time | eign, I have the honor to declare to a great pleasure, to pay an indemnity to Italy.

"The King's Government does not hesitate to accept this indemnity without prejudice to the judicial steps which it may be proper for the parties to take, and, considering the redress obtained sufficient, it sees no reason why the relations between the two Governments, which relations should faithfully reflect the sentiments of reciprocal esteem and sympathy that animate the two nations, should not again become intimate and cordial, as they have traditionally been

your excellency that the diplomatic relations between Italy and the United States are from this moment fully re-established.

"I hasten, moreover, in obedience to instructions received, to inform you that, pending the minister's return to this capital, I have taken charge of the royal legation in the capacity of chargé d'affaires.

"Be pleased to accept, etc." (Foreign Relations of the United States, 1891, p. 728.) § 96.

1 Moore's International Arbitrations History, vol. II, p. 1425.