In a note of April 28, 1899, the Austro-Hungarian legation at Washington expressed the dissent of that Government from the views stated in the foregoing note. The Government of Austria-Hungary had, it was said, consistently maintained that the real question to be determined was whether the sheriff and his men, in their capacity as public officers, had violated their duty or overstepped the bounds of their powers; and that if by so doing they had inflicted an injury, the Federal Government was liable to make indemnity for it whether the sheriff and his deputies were or were not found guilty of murder. The United States had based its reply solely on the facts elicited at the trial, where the only question at issue was whether the defendant. were guilty of the crime with which they were charged; and, as the United States had not investigated the charges based upon the inves-◄ tigation made in behalf of the Austro-Hungarian Government, it could not be admitted that the question of indemnity was disposed of by the result of the trial. It was alleged and had not been refuted, said the note, that the workmen who took part in the procession from Harwood to Lattimer, September 10; 1897, were unarmed and had no intention of resorting to deeds of violence; that the sheriff, whose order not to march through West Hazleton had been quietly obeyed by the men, did not on his second meeting with them near Lattimer exhaust all means of peaceably exerting his authority; that, on the contrary, he opened fire on unarmed and defenseless people who broke and ran without offering any resistance. It thus appeared, said the note, that the victims had been guilty of no act of violence or insurrection which could justify the severity used against them, and that the sheriff and his deputies acted illegally and in excess of their powers."

The Austrian note, while discrediting in general terms the danger to which the sheriff was alleged to have been exposed, proceeded to examine the four legal positions advanced in the reply of the United States. As to the first-that the responsibilty of governments toward aliens is not more extensive than that toward citizens or subjects, and that aliens can not claim more favorable treatment than natives-its general validity could not, said the note, be admitted. The individual is unconditionally subject to the action of his own State, but not so the alien. The latter doubtless is subject to the laws of the country, but he " is not obliged to suffer absolute wrong.' 990

a In this relation the note quoted from Hall's International Law, p. 266, the statement that the State is responsible for the acts or omissions of its administrative authorities which are productive of injury to a foreign state or its subjects so long as such acts are not disavowed and punished.

Citing Bello, Principles of International Law, 82; Franz von Liszt, International Law, 126.

As to the second position-that aliens in general have no claim to indemnity for injuries resulting from acts necessary to the public safety and welfare, especially if they take part in an insurrection or civil war the note maintained that, even admitting the principle to be correct, it could not be conceded that the disturbances at Lattimer amounted to such a condition of things. The strikers had no political object in view and no intention except that which related to the stopping of work in the mines, nor was there any suspension of the power of the State to act."

As to the third position-that, even if the sheriff and his deputies acted unlawfully, diplomatic intervention could not be invoked, since all the judicial remedies had not been exhausted-the Autrian note maintained that "there is a denial of justice, not only when a wellfounded legal claim, preferred by the competent authorities, does not receive attention, but there is, in principle, a denial of justice when, in any particular case, a decision is pronounced which is evidently in contravention of right, even if the case had been conducted in such a way that all legal forms have been accurately and strictly observed." Hence, if there arises "a de facto denial of justice," then, since the making of reprisals has fallen into disuse, the state which considers itself wronged is undoubtedly authorized to intervene diplomatically. Besides, the result of the criminal trial by which the sheriff and his deputies were in no wise censured would render civil suits for damages almost hopeless from the beginning, and the men were not in a position to defray the expense connected with such steps.

As to the fourth position-that the illegality of the sheriff's course had not been shown-the Austrian note contended that such illegality was established by the evidence collected by the Austrian representatives and laid before the United States. An appeal was therefore made to the sense of justice and equity of the United States, with a proposal that, if the appeal should not be granted, the question should be submitted to international arbitration.

Baron von Riedeneau to Mr. Hay, Sec. of State, April 28, 1899, For. Rel. 1899, 31.

The Government of the United States answered that nothing was found in the note to alter the conviction previously expressed that the case was "not one for diplomatic intervention. The parties,' said the United States, "have a resort to the courts for the recovery of damages if any have been unlawfully occasioned, and this remedy

a Citing F. von Martiz, International Redress in Penal Cases, 283.

b Citing Grotius, De Jure Belli ac Pacis, book 3, chapter 11; Heffter, sec. 103a; Wharton, Int. Law Digest, II. sec. 230.

has not ever been invoked. This Government is convinced that said strikers were engaged in acts of lawlessness and that any injuries inflicted were sustained by them in resisting the lawful efforts of the local authorities to keep the peace. . .. The maintenance of internal law and order is of sovereign concern to the Government of the United States; and while, out of consideration for the Government of His Imperial and Royal Majesty, this Government would be pleased to defer much to His Majesty's wishes and feelings, I regret that it is unable to do so in this case by consenting to the arbitration of a claim which, in any form, is believed to be inadmissible."

Mr. Hay, Sec. of State, to Baron von Riedenau, June 11, 1899, For Rel. 1899, 39.

See, also, President McKinley's annual message, Dec. 5, 1899.

X. CLAIMS BASED ON WAR.

1. CLAIMS NOT USUALLY ALLOWED ON ACCOUNT OF OPERATIONS OF WAR.

§ 1032.

A claim was presented to the Russian Government in behalf of a citizen of the United States for the loss of certain property destroyed by the burning of Moscow in 1812. The request for redress was so peremptorily refused that it appeared to be "utterly vain and useless" further to press the matter, which was accordingly dropped.

Mr. McLane, Sec. of State, to Mr. Treadwell, Nov. 30, 1833, 26 MS. Dom.
Let. 103.

"The liability of this Government to make amends to those Prussian subjects who complained of maltreatment and robbery by soldiers in the service of the United States in Mexico, can not be acknowledged. It is believed that no war in modern times has been prosecuted with greater forbearance towards non-combatants of all descriptions, than that which characterized the conduct of our forces in the war between the United States and Mexico. Not only was it our belligerent policy to respect private persons and property, as indicated by the orders to our commanding officers in that country, but everything was done which could reasonably have been expected towards carrying that policy into effect. Instances of irregularities undoubtedly occurred, in which both foreigners and Mexicans may have suffered, but this should be considered the fortune of war, from which no foreigners settled in that country had any right to expect to be free.

"You seem to suppose that because the United States claimed and may have received indemnification for injuries done to their citizens during the civil wars in Mexico, they ought to indemnify those for

eigners who may have been injured during our war with that country. No analogy can be perceived between the two cases. The United States had a treaty with Mexico which promised protection to their citizens in that country. When this stipulation was disregarded by Mexican officers, during the commotions in the Mexican Republic, the Government of that Republic became accountable therefor. If the United States had a treaty stipulation with Prussia by which they engaged to indemnify Prussian subjects domiciled in a country with which we might be at war, for injuries from troops engaged in prosecuting the war in such foreign country, that stipulation would be applicable in this instance and would be respected. No such stipulation, however, exists. It is not even pretended that the injuries complained of resulted from any orders or connivance of officers of the United States. On the contrary, upon the complaint of the sufferers, measures were adopted to inquire into the subject, which, it seems, were defeated by their failure to appear before the proper tribunal.” Mr. Marcy, Sec. of State, to Baron Gerolt, Prussian min., Feb. 15, 1854, MS. Notes to Pruss. Leg. VII. 10.

“Baron Gerolt intimates that foreigners in Mexico must be considered as under the special protection of their respective governments on account of the almost constant state of anarchy in that country. The undersigned, however, understands that Prussia as well as the United States has recognized Mexico as an independent nation. This implies an acknowledgment that the Mexican Government is entitled to the rights and is capable of discharging the duties of a sovereign state, and as such is competent to protect foreigners within her jurisdiction. But even if, for argument's sake only, it were to be allowed that foreign governments were warranted in considering their citizens or subjects as under their own protection in Mexico, at least during the frequent civil wars in that country, the same right cannot be held to exist during a war between Mexico and any other foreign power. The rights of neutrals in Mexico must, in such a case, be measured by the general law of nations."

Mr. Marcy, Sec. of State, to Baron Gerolt, June 15, 1854, MS. Notes to
Prussian Leg. VII. 15.

This note related to certain claims of Prussian subjects domiciled in
Mexico against the United States for the acts committed by the
latter during the war between the United States and Mexico.

A citizen of the United States while on his way from California, in May, 1856, was, as he alleged, induced to stop in Nicaragua for the purpose of engaging in a certain business. While so engaged, in the following October, his establishment was attacked by a party of soldiers, by whom he was wounded, and his property plundered.

He sought to make a claim against Nicaragua for $80,000. The Department of State declined to present it. "When Mr. Butts," said the Department," domiciled himself in Nicaragua, he knew that the Republic was in a state of war, and assumed therefore the necessary hazards which attend the residence even of a neutral in a belligerent country. In estimating these hazards, he probably weighed against them the profits which he hoped to derive from this business, and if he has been disappointed in his expectations, this Government can only lament that it is unable to afford him any remedy."

Mr. Cass, Sec. of State, to Mr. Burns, M. C., April 26, 1858, 48 MS. Doin.
Let. 323.

Persons domiciled in the Confederate States can not claim for damages sustained by them from the forcible manumission of their slaves by Federal troops.

Mr. Seward, Sec. of State, to Mr. Mercier, French min., Nov. 8, 1862,
Dip. Cor. 1863, II. 742; same to same, Feb. 24, 1863, id. 752.

"The undersigned Secretary of State of the United States, having taken into further consideration the note of the 9th instant, which Count Wydenbruck, envoy extraordinary and minister plenipotentiary, of His Majesty the Emperor of Austria, addressed to this Department, claiming indemnification for certain tobacco belonging to the Austrian Government, the principal part of which was destroyed by the insurgents in consequence of their having set fire to the warehouses where it was stored on the evacuation of the city of Richmond, he has the honor to communicate the decision of this Government upon the subject.

"It is believed that it is a received principle of public law, that the subjects of foreign powers domiciled in a country in a state of war, are not entitled to greater privileges or immunities than the other inhabitants of the insurrectionary district. If, for a supposed purpose of the war, one of the belligerents thinks proper to destroy neutral property, the other can not legally be regarded as accountable therefor. By voluntarily remaining in a country in a state of civil war, they must be held to have been willing to accept the risks as well as the advantages of that domicile. The same rule seems to be applicable to the property of neutrals, whether that of individuals or of governments, in a belligerent country. It must be held to be liable to the fortunes of war. In this conclusion, the undersigned is happy in being able to refer the Austrian Government to many precedents of comparatively recent date, one of which, a note of Prince Schwartzenberg of the 14th of April, 1850, in answer to claims put forward in behalf of British subjects, who were represented to have suffered in