§ 528. Withdrawal of American Minister.-Mr. Porter, the American Minister, after the withdrawal of Baron Fava, the Italian Minister at Washington, withdrew from Rome and was granted leave to visit the United States. President Harrison, in his annual message of December 9, 1891, stated that it would be competent for Congress to make offenses against treaty rights cognizable in the federal courts, but that this had not been done. and that federal officers and courts have no power to intervene. It would seem to follow, he said, that the officers of the state should be regarded as federal agents, so as to make the government responsible for their acts in cases where it would be responsible, if it had used its constitutional power to define and punish crimes against treaty rights.59

§ 529. Tender of indemnity.-Mr. Blaine, in a note dated April 12, 1892, tendered to the Minister of Foreign Affairs of Italy 125,000 francs, or $24,330.90, stating that while the injury was not inflicted directly by the United States, still, in the opinion of the President, it was the solemn duty as well as the great pleasure of the national government to pay a satisfactory indemnity, and expressed the hope that all memory of the unhappy tragedy might be effaced. The Marquis Imperiali, Minister of Foreign Affairs, accepted the indemnity, but stated that he did so "without prejudice to the judicial steps which it may be proper for the parties to take," and that by the instructions of his gov ernment diplomatic relations between Italy and the United States were fully re-established.60

XIV.

For. Rel. 1891, V; For. Rel. 1892,

co For. Rel. 1891, 665, 671, 674, 712, 727, 728; For. Rel. 1891, V.; For. Rel. 1892, XIV; 6 Moore's Int. Law Dig., sec. 1026. The language of President Harrison in his message of December 9, 1891, on this subject

was:

"The lynching at New Orleans in March last of eleven men of Italian nativity by a mob of citizens was a most deplorable and discreditable incident. It did not, however, have its origin in any general animosity to the

Italian people, nor in any disrespect to the Government of Italy, with which our relations were of the most friendly character. The fury of the mob was directed against these men as the supposed participants or accessories in the murder of a city officer. I do not allude to this as mitigating in any degree this offense against law and humanity, but only as affecting the international questions which grew out of it. It was at once represented by the Italian minister that several of those whose lives had been taken by the mob were

§ 530. Suits to recover damages.-Suits were brought to recover damages by the relatives of those killed in the riot, but it was decided that the killing of a human being by a mob allowed to congregate by the negligence of municipal officers does not render the municipal corporation liable for damages in the absence of a statute so declaring. The treaty between the United States and Italy, then in force, guaranteed to the citizens of either nation in the territory "the most constant protection and security for their persons and property," and also that "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."61 The court decided that this treaty was applicable only so far as to require that the rights of the Italian mother, who was suing for the death of her son, should be adjudicated and determined exactly the same as if she were, and her deceased son had been, a native citi

Italian subjects, and a demand was made for the punishment of the participants and for an indemnity to the families of those who were killed. It is to be regretted that the manner in which these claims were presented was not such as to promote a calm discussion of the questions involved; but this may well be attributed to the excitement and indignation which the crime naturally evoked. The views of this Government as to its obligations to foreigners domiciled here were fully stated in the correspondence, as well as its purpose to make an investigation of the affair with a view to determine whether there were present any circumstances that could, under such rules of duty as we had indicated, create an obligation upon the United States. The temporary absence of a minister plenipotentiary of Italy at this Capital has retarded the further correspondence, but it is not doubted that a friendly conclusion is attainable.

"Some suggestions growing out of

this unhappy incident are worthy the attention of Congress. It would, I believe, be entirely competent for Congress to make offenses against the treaty rights of foreigners domiciled in the United States cognizable in the Federal Courts. This has not, however, been done, and the Federal officers and courts have no power in such cases to intervene either for the protection of a foreign citizen, or for the punishment of his slayers. It seems to me to follow, in this state of the law, that the officers of the State charged with police and judicial powers in such cases must, in the consideration of international questions growing out of such incidents, be regarded in such sense as Federal agents as to make this Government answerable for their acts in cases where it would be answerable if the United States had used its constitutional power to define and punish crimes against treaty rights.''

61 Treaty of 1871, art. 3; 17 Stats. at Large, 845.

zen of this country.62 The statute of Louisiana makes a municipal corporation liable for the destruction of property by mobs. but this does not render a city liable for the killing of a person by a mob. The protection of life by a municipal corporation is a public duty required of the government, and, in the absence of statute, a city is not liable for failure in its performance.&

§ 531. Killing of Italian subjects in Colorado in 1895.-Congress again, on another occasion, by an act approved June 30, 1896, out of humane consideration and without reference to the question of liability therefor, made an appropriation to the Italian government of $10,000 for full indemnity to the heirs of three of its subjects who were riotously killed and two others who were injured in the state of Colorado by residents of that state. A coroner's jury found that A. J. Hixon, an American saloon-keeper, whose corpse was found in the coal-field of Rouse, Colorado, had been murdered by an Italian miner named Andinino. He was apprehended and lodged in jail at Walsenburg, situated seven miles from the scene of the murder, and other Italian miners who were implicated by the inquest were also arrested, and four of them, named respectively, Vittone, Ronchietto, Giacobini, and Gobetto, were, under the escort of two deputy sheriffs, being taken to Walsenburg, when they were intercepted by half a dozen men on horseback and in the encounter Vittone was instantly killed. Giacobini and Gobetto escaped, and Ronchietto escaped with a wound but was shortly after recaptured and placed in the same cell with Andinino. On the evening following, seven masked and armed men entered the jail, killed Andinino and Ronchietto, thus making three in all who were killed. The other two prisoners, Giacobini and Gobetto, who had escaped, were subsequently found wandering in the mountains with their feet frost-bitten to such a degree that it became necessary to amputate them. Ronchietto and Vittone had declared their intention to become citizens of the United States, but had not been naturalized, and Andinino had, so far as the evidence showed,

62 New Orleans v. Abagnatto, 62 Fed. 240, 10 C. C. A. 361, 26 L. R. A. 329.

63 Gianfortone v. New Orleans, 61 Fed. 63, 24 L. R. A. 592. In the

L. R. A. just cited there is an elaborate note on the subject of liability of a municipal corporation for property destroyed by a mob.

taken no steps to throw off his Italian allegiance. A German who was in the same cell when the attack was made on the prisoners at the jail was unmolested.

§ 532. Variance between consul and ambassador.-The Italian consul at Denver reported that he enjoyed the co-operation of the authorities, from the governor down, in his efforts to secure the prosecution of the offenders, but that delays and difficulties had occurred in the institution of proceedings, owing to various causes, among which were the sparseness of the population and the infrequency of terms of court. The Italian ambassador, however, in his representations to the Department of State, asserted that neither in the attack on the road nor in the breaking into the jail was any resistance made by the public force, which fact, he claimed, fixed the responsibility on the local authorities.64

§ 533. Action of the United States.-The Secretary of State suggested to the Italian ambassador that he formulate a claim, which he did, leaving it to "your high and benevolent appreciation to suggest the amount which may be deemed suitable to indemnify the families of the victims of the Colorado mob, according to the spirit of justice which prompts all your actions." Mr. Olney, Secretary of State, in reporting the claim to the President, with a view to its submission to Congress, stated that the facts were without dispute, and no comment or argument could add to the force of their appeal to the generous consideration of Congress, and he declared: "The only question would seem to be as to the amount of the gratuity in each case, which must rest, of course, wholly in the discretion of Congress, to whom it can hardly be necessary to cite the statutes of many states of the Union fixing the maximum to be exacted in the case of death caused by negligence at the sum of $5,000." 65

President Cleveland, in a message to Congress of February 3, 1896, communicated Mr. Olney's report, and after stating the facts added: "Without discussing the question of the liability of the United States for these results, either by reason of treaty obligations or under the general rules of international law, I venture to urge upon the Congress the propriety of making from the pub

For. Rel. 1895, II, 950.

es For. Rel. 1895, II. 938.

lic treasury prompt and reasonable pecuniary provision for those injured and for the families of those who were killed." 66

§ 534. Lynching of Italians at Hahnville.-On August 8, 1896, three Italians, Salvatore Arena, Lorenzo Salardino, and Guiseppe Venturella, who were held on a charge of homicide, were lynched in the jail at Hahnville, Louisiana, while they were still in the custody of the legal authorities. When they were first imprisoned the sheriff, on account of the prevailing excitement, placed an extra guard around the jail, but subsequently, in the belief that the excitement had subsided, removed the extra guard, and, according to his usual custom, left the jail in charge of the jailer. An armed mob, composed of unknown persons, broke into the jail and lynched the prisoners, but did not molest three other Italians who were confined in the same prison.

In this case, Secretary Olney, in his correspondence with the Italian Minister, asserted that the lawless act was directed against the victims as criminals, and not because of racial prejudice, as was shown by the fact that three other Italians, confined in the same jail, were not harmed, and also that the three lynched men, by taking part in the political affairs of this country and voting at elections, must be regarded as having renounced their legal status. Salardino had lived for twelve years in Louisiana and had participated in the civil affairs of the state, by voting at elections, and that Venturella and Arena had also resided in Louisiana for several years and had voted at elections, Arena having declared his intention to become a citizen of the United States. The crime, Mr. Olney said, of which they were accused was peculiarly atrocious, the attack on the jail unexpected, and its success was not imputable to any negligence or connivance on the part of the authorities, and that there was no reason to suppose that the result would have been different had the victims been citizens of the United States. He laid particular emphasis upon the point that they were not "Italians temporarily residing in the United States," and that although a declaration of intention had been found only in the case of one, it had doubtless been made by the others, for the reason that they could not have voted otherwise, and that by their qualifying and acting as electors they, in ac

6 H. Doc. 195, 54 Cong. 1 Sess.; For. Rel. 1895, II, 938.