Mr. Coxe to Mr. Hay.
My Dear Sir: In the matter of the claim for indemnity by the Austro-Hungarian Government for the shooting of certain of its subjects at Lattimer, Pa., on September 10, 1897, I desire to present to you, by way of supplement to my brief of April 22, 1898, embodying a review of the trial of James Martin, sheriff, and others, a few observations explanatory of that brief. The matter has already been brought to the attention of the Department through your predecessor, the Hon. William R. Day, in May, 1898.
It is but just to myself and to the national and State authorities that I should mention that originally my inclinations were by no means favorable to the contentions of the friends of the victims of the Lattimer shooting. As a citizen of Pennsylvania and a member of its bar, I was animated by a strong bias in favor of the processes of the law and their vigorous enforcement. In this frame of mind I attended the preliminary investigations at Hazleton in September, 1897, and the subsequent trial of the sheriff and deputies for murder at Wilkesbarre in February and March, 1898. I was thus able to consider the evidence as it was daily presented, at least impartially, so far as the defendants were concerned. I was, so far as the accused were involved as well as the Commonwealth of Pennsylvania and the particular tribunal, competent to view the whole proceeding judicially and dispassionately. My conclusions, accordingly, were reached not as a partisan advocate of the Austrian Government, but rather as an amicus curiæ, conscientiously considering the case from an especially advantageous and conservative point of view. My instructions from his excellency Mr. Hengelmuller von Hengervar, the minister from Austria-Hungary, were of such a character that I should have been seriously derelict in my duty to him and his Government had it been at all apparent to me that there was any justification for the killing of the subjects of that Government at Lattimer on September 10, 1897, and I had failed to so advise him.
My review of the testimony is before your Department, and I challenge the counsel for the defendants, as well as the representative of the United States Government who attended the trial, to indicate any omission or misstatement in my extensive and thorough analysis of the evidence prejudicial in the slightest degree to any of the accused.
If my review of the testimony may not be thus successfully impeached, it is impossible to conclude that the law was not violated by James Martin and his deputies at Lattimer on September 10, 1897.
The responsibility of the United States Government for the failure of justice in Pennsylvania is established by numerous precedents, as I have stated in my printed brief. The latest and most scholarly authority on international law thus presents the matter:
There are no well-regulated States in which the judiciary is not so independent of the executive that the latter has no immediate means of checking the acts of the former; judicial acts may he municipally right, as being according to law, although they may affect an international wrong; and even where they are flagrantly improper no power of punishment may exist. All, therefore, that can be expected of a Government in case of wrongs inflicted by the courts is that compensation shall be made, and if the wrong has been caused by an imperfection in the law of such kind as to prevent a foreigner from getting equal justice with a native of the country, that a recurrence of the wrong shall be prevented by legislation. (International Law, W. E. Hall, 4th edition, Part II, Ch. IV, sec. 65.)
In conclusion, I beg to respectfully suggest that the matter is of sufficient urgency to invite the very serious and most earnest attention of [Page 152] the United States Government by invoking Congressional action in accordance with the familiar rules of international jurisprudence.
I have, etc.,
Counsel for the Austro-Hungarian Government.
14 South Broad Street, Philadelphia.