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, ho wever, 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 putcomplete stop to the outrages which they claimed had been committed through the "Mafia." ting a 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 See § 88 ante. $90. 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 Government 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. 1The 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 in New Orleans in 1891. The plaintiff recovered a judgment for five thousand dollars for the death of her son, who was killed during the of the riots. He was an course Italian and Carrollton Railroad Company, 6 La. Ann. 495; Hermann vs. The New Orleans and Carollton Railroad Company, 11 La. Ann. 5. In the absence of a statute giving a remedy, public or municipal corporations are under no liability to pay for the property of individuals destroyed by mobs or riotous assemblages. Addison on Torts (notes by Dudley & Baylies, 1880), sec. 1530; 2 Dillon's Municipal Corporations, sec. 959." citizen. The liability of the municipal governments arising out of the treaty relations of the treaty with Italy of 1871, involved this case. The Circuit Court of Appeals reversed the decision with instructions to maintain the exception of non-liability of the city and to dismiss the plaintiff's petition as stated in the opinion (pp. 541-42): and disposed of at the opening of "The City of New Orleans by The effect of a treaty upon the question involved was discussed the opinion as follows: her pleadings admits the gross neg-| ligence charged in the petition in dom of Italy and the United States, 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 they shall enjoy in this respect presented in this case is whether the same rights and privileges as on such admission of facts the city are or shall be granted to the nacan be held liable in damages. tives, on their submitting them "It is well settled that at com- selves to the conditions imposed mon law no civil action lies for an upon the natives.' Treaty of Noinjury to a person which results in vember 23, 1871, 17 Stat. (Treaties) his death. Insurance Company vs. 49, 50, art. 3. This treaty applies to Brame, 95 U. S. 754, 756; Dennick vs. this case only so far as to require Railroad Company, 103 U. S. 11, 21; that the rights of the plaintiff shall The Harrisburg, 119 U. S. 199, 214. be adjudicated and determined exThe rule is the same under the actly the same as if she were, and civil sions of the Louisiana Supreme tive citizen of the United States." § 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 "I have now before me a note addressed to you by Secretary Blaine, April 14. Its perusal produces a most painful impression upon me. 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 |