crepant results, particularly as to the alleged citizenship of the victims, and it not appearing that the State had been able to discover and punish the violators of the law, an independent investigation has been set on foot, through the agency of the Department of State, and is still in progress. The result will enable the Executive to treat the question with the Government of Italy in a spirit of fairness and justice. A satisfactory solution will doubtless be reached. "The recurrence of these distressing manifestations of blind mob fury directed at dependents or natives of a foreign country suggests that the contingency has arisen for action by Congress in the direction of conferring upon the Federal courts jurisdiction in this class of international cases where the ultimate responsibility of the Federal Government may be involved. The suggestion is not new. In his Annual Message of December 9, 1891, my predecessor, President Harrison, said: 666 "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.' "A bill to provide for the punishment of violations of treaty rights of aliens was introduced in the Senate March 1, 1892, and reported favorably March 30. Having doubtless in view the language of that part of Article III. of the treaty of February 26, 1871, between the United States and Italy, which stipulates that 'The citizens of each of the high contracting parties shall receive, in the States and Territories of the other, most constant protection and security for their persons and property, and 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,' the bill so introduced and reported provided that any act committed in any State or Territory of the United States in violation of the rights of a citizen or subject of a foreign country secured to such citizen or subject by treaty between the United States and such foreign country and constituting a crime under the laws of the State or Territory shall constitute a like crime against the United States and be cognizable in the Federal courts. No action was taken by Congress in the matter. "I earnestly recommend that the subject be taken up anew and acted upon during the present session. The necessity for some such provision abundantly appears. Precedent for constituting a Federal jurisdiction in criminal cases where aliens are sufferers is rationally deducible from the existing statute, which gives to the district and circuit courts of the United States jurisdiction of civil suits brought by aliens where the amount involved exceeds a certain sum. If such jealous solicitude be shown for alien rights in cases of merely civil and pecuniary import, how much greater should be the public duty to take cognizance of matters affecting the life and the rights of aliens under the settled principles of international law no less than under treaty stipulation, in cases of such transcendent wrongdoing as mob murder, especially when experience has shown that local justice is too often helpless to punish the offenders." President McKinley, annual message, Dec. 5, 1899, For. Rel. 1899, XXII. "In my last message I referred at considerable length to the lynching of five Italians at Tallulah. Notwithstanding the efforts of the Federal Government, the production of evidence tending to inculpate the authors of this grievous offense against our civilization, and the repeated inquests set on foot by the authorities of the State of Louisiana, no punishments have followed. Successive grand juries have failed to indict. The representations of the Italian Government in the face of this miscarriage have been most temperate and just. 66 Setting the principle at issue high above all consideration of merely pecuniary indemnification, such as this Government made in the three previous cases, Italy has solemnly invoked the pledges of existing treaty and asked that the justice to which she is entitled shall be meted in regard to her unfortunate countrymen in our territory with the same full measure she herself would give to any American were his reciprocal treaty rights contemned. "I renew the urgent recommendations I made last year that the Congress appropriately confer upon the Federal courts jurisdiction in this class of international cases where the ultimate responsibility of the Federal Government may be involved, and I invite action upon the bills to accomplish this which were introduced in the Senate and House. It is incumbent upon us to remedy the statutory omission which has led, and may again lead, to such untoward results. I have pointed out the necessity and the precedent for legislation of this character. Its enactment is a simple measure of previsory justice toward the nations with which we as a sovereign equal make treaties requiring reciprocal observance. "While the Italian Government naturally regards such action as the primary and, indeed, the most essential element in the disposal of the Tallulah incident, I advise that, in accordance with precedent, and in view of the improbability of that particular case being reached by the bill now pending, Congress make gracious provision for indemnity to the Italian sufferers in the same form and proportion. as heretofore. "In my inaugural address I referred to the general subject of lynching in these words: 666 'Lynching must not be tolerated in a great and civilized country like the United States; courts, not mobs, must execute the penalties of the law. The preservation of public order, the right of discussion, the integrity of courts, and the orderly administration of justice must continue forever the rock of safety upon which our Government securely rests.' "This I most urgently reiterate and again invite the attention of my countrymen to this reproach upon our civilization." President McKinley, annual message, Dec. 3, 1900, For. Rel. 1900, XXII. As to the indemnity paid in this case, see supra, § 387. July 15, 1901, the Italian embassy at Washington urgently presented to the Department of State the case of three Erwin, Miss., 1901. Italians, named Giovanni and Vincenzo Serio and Salvatore Liberto, two of whom were killed and the third wounded at Erwin, Miss., and asked (1) that the matter be officially investigated; (2) that the guilty parties be arrested and punished, and (3) that steps be taken to secure to Italians in the locality in question the protection to which they are entitled by treaty. The case was referred to the governor of Mississippi for appropriate action. It seems that the crime was committed under cover of darkness, and the identity of the criminals was not discovered either at the coroner's inquest or at the subsequent investigation by the grand jury. The embassy having suggested that the Federal Government should send a "detective" to the spot for the "detection of the lynchers," the Department of State in reply referred to a suggestion made by Baron Fava in the case of the Tallulah incident in 1889, that the special agent appointed by the Department to investigate the case should "discover and denounce the criminals," and to the answer then made, that"in the actual status of the matter and in the absence of Federal jurisdiction over an offense committed in a State," the agent in question could not assert any part in the administration of justice. Subsequently the Italian embassy, acting under instructions, protested against what was pronounced to be "a denial of justice, a flagrant violation of contractual conventions, and a grave offense to every human and civil sentiment," and, referring to the omission of Congress to confer jurisdiction in such cases on the Federal courts, as recommended by the President, declared that, until such a measure should have been adopted the Italian Government would not only "have grounds of complaint for violation of the treaties to its injury," but would "not cease to denounce the systematic impunity enjoyed by crime, and to hold the Federal Government responsible therefor." The protest was transmitted by the Department of State to "the committees of the Senate and House of Representatives having under consideration the President's recommendation that indemnity be graciously tendered to the families of the victims and that legislation be enacted to give the Federal courts original jurisdiction of treaty offenses against aliens." For. Rel. 1901, 283, 285, 287, 288, 289, 292–293, 297, 298, 299. By the act of March 3, 1903, the sum of $5,000 was appropriated to be paid, "out of humane consideration, without reference to the question of liability there for to the Italian Government, as full indemnity to the heirs of Giovanni and Vincenzo Serio, who were slain, and to Salvatore Liberto, who was injured, by an armed mob at Erwin, Mississippi, on July 11, 1901.” 33 Stat. 1032. The crime was committed at night, and the identity of the persons who committed it was not ascertained by the judicial investigations that were held. (For. Rel. 1901, 283-299.) 6. CASE OF BAIN, AND OTHER CASES. § 1027. Bain's case. In March, 1895, during a labor disturbance at New Orleans, James H. Bain, then purser of the British steamship Engineer, while on the wharves in the discharge of his duties, was shot and wounded by a body of armed men without provocation or warning. As Bain was apparently permanently injured the British Government informally suggested that the United States pay him £500" as a voluntary grant of compensation." It appears that the rioters did not intend to shoot Bain, but that he was struck by a shot fired at laborers whom the rioters wished to prevent from working on the levee. Six men were arrested for the shooting and indicted for assault with intent to commit murder, but the district attorney stated that as Bain, who had returned to England, was not there, the case could not be tried in his absence. The British ambassador expressed the hope that the case would be pressed upon the authorities of Louisiana, in view of the strong claims of Mr. Bain to their sympathy and liberality. He stated that some months prior to the event in question foreign ships and property were exposed to great danger owing to the lawless proceedings of certain societies which attempted forcibly to prevent the employment of colored laborers in the lading H. Doc. 551-vol 6-54 and unlading of ships, and that, notwithstanding the appeals of the foreign consuls, adequate protection was not afforded to foreign shipping. The rioters were, it was said, allowed by the police to assemble in a building, where they kept an arsenal of revolvers, rifles, and other weapons. When Bain was shot, the few policemen on the spot concealed themselves for safety behind cotton bales. Similar attacks were made on the British steamship Merrimac, but the officers and crew were unhurt though the mob fired at the laborers on the dock. The ambassador called attention to Article I. of the treaty of commerce of 1815, which provides that "the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce.' On the occasion in question, it could not be said that the British steamer had any protection whatever from the armed mob which it was the duty of the local authorities to restrain." seems that Bain subsequently proceeded to New Orleans. It A copy of the correspondence was communicated to the governor of Louisiana. The governor in reply enclosed a report of the attorney-general of the State, who denied that the State authorities were guilty of any neglect of duty or failure to protect the commerce of the city; and he referred to the opinions of some persons that "the steamship agents were largely responsible for the trouble in giving the preference to unorganized colored labor." But without regard to the merits of this controversy, he stated that the governor called out the militia and gave full and ample protection to the commerce of the city as soon as practicable, after his attention was called to the threatening situation; that the rioting occurred early in the morning before the governor arrived, and that neither he nor any other State authority was to blame for it. It was also intimated that Bain should bring suit against the city for any damages he had received. The British ambassador decided not to press the case further upon the authorities of Louisiana, but expressed the hope that the Government of the United States might take such action as might "be necessary to obtain from Congress or otherwise the relief to which Mr. Bain is so justly entitled." The deficiency act of June 8, 1896, contains the following provision for the payment, out of humane consideration and without reference to the question of liability therefor, to the British Government, as full indemnity to certain British subjects: "To James Bain, who was assaulted and injured in the State of Louisiana by residents of that State, $1,000; to Frederick B. Dawson, wife and daughter, for loss of property and bodily injuries inflicted in the State of Nebraska by residents of that State, $1,800." The money in these cases was transmitted to the British ambassador, June 12, 1896. For. Rel. 1895, I. 686, 689, 690-691, 694-696; For. Rel. 1896, 300. |