Mr. Hay to Baron Riedl.
Washington, February 4, 1899.
Sir: In the matter of the claim of the Austro-Hungarian Government for indemnity on account of the shooting of certain Austro-Hungarian subjects by Sheriff Martin and his deputies at Lattimer, Pa., I have the honor to inform you that the Department has given attentive consideration to the report by Mr. Robert D. Coxe, the representative of your Government at the trial of the sheriff and his deputies on September 10, 1897.
Mr. Coxe’s report opens with the statement that “it may be assumed that the prosecution made out a prima facie case.” To one not familiar with our settled course of procedure this statement, while technically accurate, is apt to be misleading. It was not disputed at the trial that the deputies shot and wounded or killed the strikers whose claim for indemnity is presented by the Austro-Hungarian Government. The bare proof of the undisputed facts, under our system of procedure, makes out a prima facie case. But this results not from any proof of actually criminal conduct or guilt on the part of the sheriff and his posse, but from the rule of procedure that any officer who may be prosecuted criminally or civilly for any acts done colore officii is required to show affirmatively in defense the fact that he was an officer, and that the act complained of was done under color of his office in the lawful discharge of his duty. When that is proven the defense is completely made out. That was done, or attempted to be done, in the trial of Sheriff Martin and his deputies; and the question of their guilt or innocence depends on the question whether the sheriff and his deputies, in doing the acts complained of, were within their right in the lawful discharge of their duty. This raises the question of fact. The sheriff is the official conservator of the peace of his county, and the crucial question is whether there was an actual or threatened disturbance of the peace such as to justify preventive or repressive measures; whether a riot was threatened or impending, and, if so, whether the rioters persisted in their unlawful conduct after the sheriff had commanded them to disperse. The facts showing that such was the condition of affairs at and previous to the time of the shooting are recited in the report of the Assistant Attorney-General, Mr. Hoyt, who witnessed the trial as the representative of this Government; and, as will be shown, they are abundantly established by the report of the testimony of the witnesses made by Mr. Coxe, the representative of the Austro-Hungarian Government.
Mr. Hoyt’s report states that the case was fairly tried; that 103 witnesses were examined for the prosecution and 111 for the defense; that the story told by the witnesses for the prosecution shows that—
On the evening of September 9, 1897, at Harwood, near Hazleton, a meeting of the strikers was held, at which it was decided to go the next day, peaceably and without any weapons, to Lattimer, and ask the men thereto go on strike, but not to use force nor to destroy property. At noon the next day about 250 men from Harwood and [Page 153] other points started from Harwood and marched to West Hazleton, receiving accessions from Crystal Ridge and other surrounding villages. At West Hazleton the sheriff and his posse met them and told them to disperse; there was some altercation there between the strikers and the sheriff’s posse, and then the strikers took a road to Lattimer which passed along the outskirts of Hazleton. At the same time the deputies hoarded the cars of a trolley line running from Hazleton to Lattimer, and reached the latter place ahead of the strikers. The deputies lined up at Lattimer in front of a row of houses along and a short distance from the road running into Lattimer from the direction of Hazleton, and when the strikers arrived there the sheriff went forward alone and met them again, his deputies remaining on the side of the road behind him, and once more ordered them to disperse. He seized successively two of the strikers by the coat, and while he was engaged in a scuffle with them and with other strikers who gathered around him, one or two shots were heard, but from what source the witnesses (or all but two or three of them) did not definitely say. Then the deputies began to shoot at the strikers, first some scattering shots and then a volley, and the strikers broke and fled. The shooting continued for several minutes while the fleeing strikers were endeavoring to get to cover up the slopes along the road. Many of the witnesses testified that the sheriff informed the strikers at West Hazleton and Lattimer who he was, and produced a paper which he stated to be a proclamation, hut did not read.
It appeared that the strikers were unarmed; that small clubs which they had previously carried were thrown away on the march between West Hazleton and Lattimer; that they were peaceable and orderly in their conduct on the march, were not riotous either at West Hazleton or Lattimer, and at neither place made an assault upon the sheriff or his deputies, or offered any violence, or used threatening language to them. When the crowd stopped before the sheriff at Lattimer 10 men or more gathered around him, and while he was parleying with them and endeavoring to pull to the side of the road the men whom he had seized by the coat, the main body of strikers pushed slowly ahead, and at that point and moment the deputies began to fire.
Witnesses among the strikers testified that they had not stopped or beaten men on the road from Harwood to West Hazleton, and thence to Lattimer, nor compelled men to join their number against their wills; that there were 300 or more in their assemblage; that they only went to Lattimer to have a talk with men there, to show themselves, and to induce the Lattimer men by peaceable means to join their strike for more wages. Witnesses also testified to violent language and threatening behavior on the part of the deputies at West Hazleton before the shooting, and again at or near Lattimer after the shooting. The testimony was cumulative that the strikers were peaceable and unarmed, and did not on the march, nor at West Hazleton, or Lattimer exhibit any such conduct as to justify the volley of the deputies.
According to the indictments, there were 19 men killed and 38 wounded.** * Of the men killed 10 were Austrian subjects, and of the men wounded 11 were Austrian subjects.
The story of the witnesses for the defense shows, according to Mr. Hoyt’s report, that—
For a week or more preceding the 10th of September the people of the region had been kept in a terror-stricken condition, owing to the fact that the employees of one of the mines near Harwood had gone on a strike and had induced and compelled the men at other mines to follow them; and had been organizing and assembling marching parties from day to day, which proceeded to various mines, colleries, and open workings, and throughout the villages and country generally; compelled men to cease work, drove the workmen away, stopped the engines, went into the houses of laborers and other residents, and by threats of violence compelled men against their wills to join them; carried and used clubs and other weapons, beating and chasing men who did not wish to join them, and driving them to the brush, shooting at them, and conducting themselves on numerous occasions throughout the week preceding September 10 in such violent, threatening, and lawless manner in both speech and deed that the law-abiding and peaceable citizens and residents were alarmed and fearful for their safety and even for their lives.
It also appeared that the sheriff, being appealed to by owners of property for protection of themselves and their employees, went to Hazleton on September 5, duly constituted a large number of citizens as armed deputies, published and posted, in concert with the sheriffs of Carbon and Schuylkill counties, a proclamation against rioting, and instructed the deputies generally that it was their duty to maintain peace at all hazards, hut not to take life unless his life or their lives were in danger. It also appeared that the sheriff carefully cautioned his men to keep cool upon all occasions, especially when they met bodies of strikers, and that if his life or their lives were in danger at any time, and that if he was not able for any reasons to give suitable commands, including the command to fire, they must proceed in such extremity according to their own discretion, under the direction of the leaders whom he had selected.
[Page 154]Between September 5 and 10 the sheriff and some or all of his deputies proceeded about the country as called upon; met on various occasions and at sundry points disorderly bands of strikers proceeding about to the collieries and mines, intimidating and stopping the workmen, and successfully dispersed them, without any more violent manifestations than some rough language and threats.
On September 10 the sheriff and his posse met the mob, consisting of 400 or 500 men, on their march from Harwood to Lattimer, at West Hazleton, read his proclamation, and commanded them to stop and disperse; arrested one man who refused to stop; passed through the strikers, who handled him somewhat roughly, but after some violent talk on the part of the strikers, refusing to heed his commands and disperse, he did nothing to prevent their march through the outskirts of Hazleton to Lattimer. At the latter place, after lining up the deputies on the side of the road so as to meet and stop the mob before they reached the breaker, the sheriff went forward and met them; commanded them to stop; asked what they were going to do, to which they replied, “Stop Lattimer mines;” and then, upon the sheriff’s proceeding to arrest one of them who spoke riotously, many men in the foremost ranks surged around him, knocked him down, and tried to take away his revolver, which he held in his hand to enforce his commands. He did not intend to shoot unless he was compelled to, and, as a matter of fact, he did not shoot, although he tried to shoot one man who struck him a blow on the face which sent him to his knees. During this altercation and assault upon him two of the strikers with revolvers endeavored to shoot him, and one with a knife struck at him.
During these proceedings the main body of strikers moved forward past the crowd, around the sheriff, and proceeded, according to many witnesses, pursuing their way toward Lattimer breaker, and, according to several witnesses, they turned at that moment and moved violently and with shouts toward the deputies.
All of these events happened within a very brief space of time, and just at this point, when the sheriff’s life was in danger and a threatening attack upon the line of deputies had begun, after one or two preliminary shots (the source of which could not be exactly located, though there was evidence showing that they proceeded from the rear of the line of deputies, where three of the strikers were located, beckoning the main body to come on to the assault upon the deputies), a portion of the line of deputies fired the volley described, but ceased firing within a half minute or thereabouts, and then the deputies, or many of them, proceeded with the sheriff to assist in caring for the dead and wounded.
It appeared from the story of the defense that the strikers at West Hazleton, as well as at Lattimer, were violent in their actions and language, as they had been during the series of occurrences leading up to Lattimer, and that the deputies made no threats and acted coolly and without violence both at West Hazleton and after the shooting.
Mr. Coxe does not report the evidence adduced on behalf of the prosecution, but contents himself with the statement that a prima facie case was made out. He does set out an abstract of the testimony of the witnesses for the defense. By his report of the testimony it is shown, out of the mouths of many witnesses, that the strikers on and prior to September 10,1897, endeavored to compel others to join them; that they pursued and chased others, who fled; that some of them had pistols, revolvers, and guns, and fired shots at inoffensive people; that large numbers of them carried clubs and pieces of iron and used intimidation, menaces, threats, and opprobrious epithets, which, in popular parlance among the laboring classes, are regarded as insulting in the last degree, as a challenge to physical conflict, and as a sign that the speakers are resolved to persist in their course without regard to consequences; that on September 10, before the shooting occurred at Lattimer, the sheriff halted the strikers, saying to them, “I want you to stop,” and one man replied, “You can’t stop us,” and they said that they would not stop, and in a few minutes they marched on, two of them grappling with the sheriff, striking him a heavy blow on the cheek, which brought him to his knees, two men holding revolvers and one holding a knife, with which he made a lunge at the sheriff, when the rest of the strikers rushed toward the deputies and the shooting began.
In his instructions to the jury the judge recited a portion of the testimony of the sheriff as not being in any material part contradicted by the evidence on behalf of the prosecution. It shows that the strikers [Page 155] used the insulting epithets above referred to; that the sheriff read the proclamation to them; that they pushed right on by him; that the crowd surged around him, striking him a terrific blow on the side of the head; that the man with a knife made a lunge at the sheriff while on his knees, and while he was in that posture the shooting began.
The legal principles by which the validity of this claim is to be determined may be stated in a few propositions.
No Government insures the absolute security of all foreigners who may happen to be within its territory. Aliens, as well as nationals, are bound to respect the laws, the institutions, and the constituted authorities of the State in whose territory they reside. They are treated the same as nationals and, like the latter, they are, in case of infraction of the penal law, prosecuted and punished. In particular, if they take part in an insurrection or in a civil war, the treatment to which they expose themselves in such lawless actions affords no legitimate ground for diplomatic intervention.
The responsibility of Governments toward foreigners is not more extensive than that of the foreign sovereign toward his own subjects. The duties of hospitality do not prevent the entire exercise of the right which belongs to sovereignty to employ the legal means to provide for the preservation of the State, nor are foreigners entitled to a privileged position, nor are they exempt from the consequences of criminal conduct, threatened or committed, nor are they to be indemnified for damages resulting from such conduct and from the imperious necessity of watching over the public safety and welfare.
This Government recognizes the international obligation to do justice, but it can not admit that in this case legal injustice has been done. Even if it were to be conceded that the sheriff and his deputies were acting wrongfully and unlawfully, still the remedy by way of diplomatic intervention can not be invoked until all remedies have been exhausted before the ordinary judicial tribunals. In this case abundant remedies are afforded for redress, if any actionable wrong has been committed; but the disposition of this claim may safely be rested on higher grounds—on the ground that aliens are subject to the same rules of law and order, of peace and justice which bind the citizens of the United States. Whoever sojourns in a foreign land having a settled and pure administration of justice impliedly submits to the local jurisdiction and to the requirements of the municipal law. This Government can not tolerate a state of anarchy, either threatened or inaugurated, in communities composed either of its own citizens or of aliens who may engage in industrial or other pursuits within its territory. If they obey the precepts of the law it will protect them; if they defy the law and the constituted authorities, then, in common with all others who participate with them in such acts of lawlessness and violence, they must be deemed to accept the consequences of the conflict which they invite.
There has in this case been no denial of justice, which should be shown as a prerequisite to diplomatic intervention. There has been no denial of justice, because a careful investigation of the rulings of the court at the trial and the instructions to the jury shows that they are characterized by ability, learning, integrity, and impartiality. And if there was any degree of feeling in the community where the strike occurred it was rather creditable than otherwise. It can not be justly characterized as prejudice in the judicial sense of that term, but was rather that sentiment which is ordinarily and inevitably felt against criminal transgressions by all well-ordered and self-governed communities who make and enforce their own laws through agencies appointed [Page 156] by law and which depends for its enforcement upon the active and healthy public sentiment which lies at the foundation of all law and order. It is not shown that the trial of the sheriff and his deputies was not a fair one, nor is it shown that a legal wrong was done by the sheriff and his deputies, because there was abundant evidence given at the trial, and justifying the verdict rendered, that the Austro-Hungarian subjects who were slain and wounded were aggressors and violators of the law in refusing to obey the command of the sheriff to disperse. The command was seasonably and lawfully given, and even though they may have felt that the command was an unnecessary one, yet the proper respect due to the sheriff as the conservator of the peace of the county and the desire to avoid disorders and the possible effusion of blood which might occur by reason thereof made it their duty as law-abiding citizens to obey the command.
The principles of international law which support the foregoing conclusions on the facts shown are enunciated by Rivier, More, and others, and accord with the uniform practice and precedents of this Government, not only in controversies in which claims for indemnity have been made by citizens or subjects of foreign States against this Government, but also where such claims have been made by its own citizens, invoking its diplomatic intervention in their behalf against foreign States. These principles were enunciated by Mr. Fish, Secretary of State, in 1873, and again in 1875; by Mr. Buchanan, Secretary of State, in 1848; by Mr. Webster, Secretary of State, in 1851; as well as by Secretaries of State, Mr. Bayard and Mr. Marcy, and as shown in 2 Wharton’s Digest, section 230.
In conclusion, the Lattimer strikers were disturbers of the public peace and violators of the law. They were rapidly drifting into a state of petty war. It was the duty of the sheriff to take measures to prevent, as well as to repress, civil tumults and disorders. On previous occasions he had commanded them to disperse and they obeyed. They were perfectly familiar with his official position and the nature of the authority he exercised. If they had obeyed his lawful command no blood would have been shed; and in their lawless and aggressive conduct, challenging the embodied force of the State, they placed themselves beyond the protecting pale of the law. To reward the wounded living and the heirs of those slain under such circumstances, would be offering a premium to lawlessness and inviting renewed outbreaks and riots.
This Government is therefore unable to admit the justice of the claim.
Accept, etc.,