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Mr. Blaine to Marquis Imperiali.
Letter of Secretary of State.
DEPARTMENT OF STATE,
Washington, April 14, 1891. SIR: I have the honor to acknowledge the receipt of your note dated Thursday, April 2, 1891. It contains a second telegram from the Marquis Rudini, a part of which I here quote:
The Government of the King of Italy has asked nothing beyond the prompt institution of judicial proceedings through the regular channels. It would have been absurd to claim the punishment of the guilty parties without the warrant of a regular judgment. The Italian
a Government now repeats the same demand. Not until the Federal Government shall have explicitly declared tha the aforesaid proceedings shall be promptly begun can the diplomatic incident be considered as closed.
This Government certainly had no desire whatever to change the meaning of the Marquis Rudini's telegram of March 24. It was delivered at the State Department by Baron Fava in person, written in his own hand, and expressed in the English language. The following is the full text of the telegram:
ROME, March 24, 1891. ITALIAN MINISTER, Washington:
Our requests to the Federal Government are very simple. Some Italian subjects, acquitted by the American magistrates, have been murdered in prison while under the immediate protection of the authorities. Our right, therefore, to demand and obtain the punishment of the murderers and an indemnity for the victims is unquestionable. I. wish to add that the public opinion in Italy is justly impatient, and, if concrete provisions were not at once taken, I should find myself in the painful necessity of showing openly our dissatisfaction by recalling the minister of His Majesty from a country where he is unable to obtain justice.
RUDINI. The words underscored are precisely those which I quoted in my former note; and I am directed by the President to express the satisfaction of this Government with the very material qualification of the demand made by the Marquis Rudini on behalf of the Italian Government.
You quote in your note another part of the Marquis Rudini's telegram of April 2 in these words:
Meanwhile His Majesty's Government takes note of the declaration whereby the Federal Government recognizes that an indemnity is due to the families of the victims in virtue of the treaty in force between
the two countries. Indemnity to foreigners
If the Marquis Rudini will carefully examine my note wronged by vio of April 1, he will discover that I did not recognize that lation of treaty rights. an indemnity is due to the families of the victims in vir
tue of the treaty in force between the two countries." What I did say was in answer to Baron Fava's assertion that the United States Government refused to take this demand for indemnity into consideration. I quote my reply:
The United States, so far from refusing, has distinctly recognized the principle of indemnity to those Italian subjects who may have been wronged by a violation of the rights secured to them under the treaty with the United States concluded February 26, 1871.
The Marquis Rudini may be assured that the United States would recompense every Italian subject who might “be wronged by the violation of a treaty” to which the faith of the United States is pledged. But this assurance leaves unsettled the important question whether the treaty has been violated. Upon this point the President, with sufficient facts placed before him, has taken full time for decision. He now directs that certain considerations on the general subject be submitted to the judgment of the Italian Government.
Violence As a precedent of great value to the case under discus
against property sion, the President recalls the conclusion maintained by and other opan
consul Mr. Webster in 1851, when he was Secretary of State 18h, subjects in under President Fillmore. In August of that year a mob in New Orleans demolished the building in which the office of the Spanish consul was located, and at the same time attacks were made upon coffeehouses and cigar shops kept by Spanish subjects. American citizens were involved in the losses, which, in the aggregate, were large. The supposed cause of the mob was the intelligence of the execution of 50 young Americans in Havana and the banishment to Spanish mines of nearly 200 citizens of the United States. The victims were all members of the abortive Lopez expedition.
In consequence of these depredations of the mob upon the property of the Spanish consul, as well as against the Spanish subjects, Don Calderon de la Barca, the minister of Spain, demanded indemnification for all the losses, both official and personal.
Mr. Webster admitted that the Spanish consul was. Indemnity due entitled to indemnity, and assured the Spanish minister if the injured consul, Mr. Labordeshall return to his post, or any other consul for New Orleans shall be appointed by Her Catholic Majesty's Government, the officers of this Government resident in that city will be instructed to receive and treat him with courtesy and with a national salute to the flag of his ship, if he shall arrive in a Spanish vessel, as a demonstration of respect,
such as may signify to him and to his Government the sense entertained by the Government of the United States of the gross injustice done to his predecessor by a lawless mob, as well as the indignity and insult offered by it to a foreign State with which the United States are, and wish ever to remain, on terms of the most respectful and pacific
intercourse. Demand for in
But when pressed by the Spanish minister to afford demnity other Spanish indemnity to Spanish subjects injured by the mob in comsubjects not acceded to
mon with American citizens, Mr. Webster declined to accede to the demand, and
gave his reasons as follows: This Government supposes that the rights of the 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, yet it is understood that many American citizens suffered equal losses from the same cause; and these private individuals, subjects of her Catholic Majesty, 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. Indemnity ac- It is proper, however, to add that two years after Mr. tually paid as an
Webster wrote the foregoing note Congress, in recognition of certain magnanimous conduct on the part of the Queen of Spain in pardons bestowed on Americans who had unjustifiably invaded the island of Cuba, enacted a joint resolution, approved by President Fillmore March 3, 1853, the last day of his term, indemnifying the Spanish consul and other Spanish subjects for the losses sustained in the New Orleans mob of 1851. The considerations upon which this resolution was passed were held not to contravene the original position of Mr. Webster, shared
also by President Fillmore. Judicial rem- The right to judicial remedy which Mr. Webster assured edy open to Italian subjects. to the Spanish subjects is likewise assured to the Italian
subjects. The right is specially guaranteed in the second section of the third article of the Constitution. And, as Mr. Webster points out, the resident alien has a privilege which is denied to the citizen. The widows and children of the citizens who lost their lives by mob violence may sue the leaders and members of the mob only in the courts of
act of grace.
Different characteristics of the
the State of Louisiana, while the widows and children of the Italian subjects who suffered death have 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.
Provision is made in the revised civil code of Louisiana for redress of such grievances as the widows and children of the victims of the mob may plead. I quote:
ART. 2314. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. The right of this action shall survive, in case of death, in favor of the minor children and widow of the deceased, or either of them, and, in default of these, in favor of the surviving father or mother, or either of them, for the space of one year from the death.
ART. 2316. Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.
Art. 2324. He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable in solido with that person for the damage caused by such act.
The Government of the United States would feel justified in resting on the argument and conclusion of Mr. mobs of 1851 and Webster if the mob of March 14, 1891, did not, in some of its characteristics, differ from the mob of 1851. But it is due to entire candor, due to this Government, and due to the Government of Italy to point out certain differences of which the Government of the United States is honorably bound to take notice. In the case of the mob of 1851 Mr. Webster asserts that “no personal injury was offered to anyone;" that "the police and other legal authorities did all that was possible to preserve the peace and arrest the rioters;” that “the mob acted in the heat of blood, and not in pursuance of any predetermined plan or purpose of injury or insult;" that “the mob was composed of irresponsible persons, the names of none of whom are known to the Government of the United States, nor, so far as the Government is informed, to its officers or agents in New Orleans.”
As promptly as possible after the lamentable occurrence at New Orleans the President directed the AttorneyGeneral to cause, through his Department, a full inquiry to be made into all the facts connected therewith, and solicited his opinion whether any criminal proceedings would lie under the Federal laws in the Federal courts against persons charged with the killing of Italian subjects. He has not yet received the official report. If it be found that a
United States does not insure
prosecution can be maintained under the statutes of the United States, the case will be presented to the next grand jury according to the usual methods of criminal administration. But 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. This was done in his telegram to the governor of Louisiana as early as the 15th of March.
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 indictments, the United States can not assume that such will be the case.
The United States did not by the treaty with Italy belives or property come the insurer of the lives or property of Italian sub
jects resident within our territory. No government is able, however high its civilization, however vigilant its police supervision, however severe its criminal code, 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 and when it the twenty-third articles, clearly limits the rights guar
antied 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,
When indemnity may not,