Baron von Riedenau to Mr. Hay.
Washington, April 28, 1899.
Mr. Secretary of State: As I had the honor to inform you on the 11th of February last, I laid your note of the 4th of that month, relative to the awarding of a suitable indemnity to the families of the victims of the catastrophe at Lattimer-Hazelton, before my Government. My Government has most carefully examined the reply communicated by the aforesaid note in a thoroughly impartial manner, but after an [Page 32] attentive study thereof has, to its regret, reached the conclusion that the reply of the Federal Government (which, on the basis of its views concerning the facts and the law in the case, reaches the conclusion that our demand for an indemnity must be rejected as unwarranted) is such, both in its nature and especially in regard to the grounds alleged, that we are unable to accept it, and consequently can not consider the case as having been thus settled.
Immediately after the unfortunate occurrence of September 10, 1897, we informed the United States Government of the investigation concerning the disaster at Lattimer, which had been held on the spot by our representatives by taking a number of sworn depositions of disinterested and impartial eyewitnesses, and on the basis of the result of that investigation we requested the Government of the Union to order an accurate investigation of the facts in its turn, and (eventuellement) to grant a suitable indemnity to the Austrian and Hungarian subjects who had been killed or wounded in consequence of the disturbances at Lattimer, or to their families.
The United States Government, which answered our first communication to it with the prompt assurance that the matter would be carefully investigated, as its importance demanded, nevertheless did not send us any communication until some time had elapsed, and, in the communication which it then sent, it confined itself to informing us of the inquiries made by the governor of Pennsylvania, and declared that it would await the result of the trial of Sheriff Martin and his deputies before taking a positive attitude with regard to the question of indemnity.
After a further lapse of time, during which the trial took place at Wilkesbarre, the United States Government, without adding a single word of its own, sent us the report which had been made by the delegate of the Federal Government who had been sent to attend the trial. Finally, the esteemed reply of the Department of State, of February 4, 1899, was received by us.
In that reply the Federal Government points out the facts of the case merely by referring to the result of the trial, and, in connection therewith, expresses certain views as to the principle involved, on which it bases its rejection of our claims.
This treatment of the case by the United States Government may be viewed from the standpoint which we took from the outset in relation to the matter.
We have maintained since this case has occupied our attention, that, after the positive result of the investigation held by us, the action of the American officers at Lattimer, whereby a number of our countrymen were either killed or severely wounded, is of such a nature as, from an international point of view, to furnish a basis for a claim from the responsible American authorities for an indemnity to the victims of an offense committed by State officers. In accordance with this view, it was claimed by us both before the trial of Sheriff Martin and the deputies and afterwards that, as regarded our demands, the proper thing to be done was to determine whether the sheriff and his men, in their capacity as public officers, had acted in such a manner as to render themselves guilty of a violation of duty, or at least of overstepping the bounds of their powers, and whether an injury had been the outgrowth thereof, and if so, that we must hold the Government that was answerable therefor, and (since in the present case foreign [Page 33] subjects were concerned) that we must hold the Federal Government responsible for an indemnity. We claimed this whether Sheriff Martin and his deputies were or were not found guilty of the crime of murder with which they were charged.
That this view of ours was not regarded by the Federal Government as one that was to be rejected by it at the outset is shown beyond a doubt by the fact that after the acquittal of the sheriff and his deputies by the jury at Wilkesbarre, Mr. Day, then Secretary of State for Foreign Affairs, declared that he still considered this question an open one.
In accordance with the attitude taken by us, we informed the United States Government of the result of the investigations held by us concerning the occurrences at Lattimer, and, as a necessary consequence thereof, asked for a careful investigation of the case by the Government.
This request of ours was not complied with, and all that is alleged by the Federal Government in its final reply with regard to the facts (without going into a critical refutation of the facts presented by us as the result of bur inquiries) is based solely upon the facts as elicited in the courts of the trial of Sheriff Martin and his deputies.
The object of the prosecution in the elicitation of the facts at the trial could, of course, be simply to show by the aid thereof that Sheriff Martin and his deputies were guilty of the crime of murder with which they were charged.
On the part of the defense, on the other hand, the object had in view was necessarily to show, by the testimony of the witnesses who were produced for the defense, that there was no legal evidence that murder had been committed, so as to secure the acquittal of the accused persons of the crime with which they were charged.
No importance, however, was attached by anyone to showing (and this is of the highest importance as regards our claim) whether any offense had been committed by the public officers in the performance of the official duties with which they were charged in one way or another—any offense, I say, which, outside of the trial and independently thereof, must be followed by consequences.
An examination of the facts from this latter point of view was, however, in the present case, the more necessary, since, as regards the conduct of the criminal proceedings, the Department of State does not hesitate to admit that while there was no interference with the performance of the duty of the judges and juries, still, in the general feeling of the country, an excitement was manifested which gave rise to an unmistakable prejudice, although, it is added, such prejudice “can not be justly characterized as prejudice in the judicial sense of that term.”
We thus stand facing the fact, on the one hand, that a thorough investigation of the case, the result of which would have deprived our investigations of all their force, was not held by the Federal Government; and, on the other hand, we stand facing the verdict of a jury which was not wholly uninfluenced by human feelings and considerations. We can therefore by no means reach the conviction that the facts presented by us have lost their weight, and that by the sentence which was pronounced a decision was reached which positively settles this question so far as we are concerned; still less can we admit that this decision was one that excludes diplomatic negotiations in the case.
Under these circumstances we can not do otherwise than establish [Page 34] the facts already stated by us and confirmed by a series of depositions, which facts have not yet been refuted, and which are as follows:
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; they were, on the other hand, determined to do everything in their power to furnish evidence of the peaceable character of their march.
Sheriff Martin, whose order not to march through West Hazelton had been quietly obeyed by the men, did not, on his second meeting with them near Lattimer, exhaust all means of peaceably asserting his authority. So far from this having been done, fire was opened on unarmed and defenseless people. They broke and ran at their first shot, without offering any resistance, but the fusilade was continued for several minutes while they fled, and until the last cartridge in the magazine guns of the deputies had been used.
From these facts, which show that the victims of the disturbance at Lattimer had been guilty of no act of violence or insurrection against the lawful authorities that could justify the severity which was used against them, the conclusion is inevitable that action was taken by the armed police force which was not justified by the circumstances; that the sheriff and his deputies acted illegally and exceeded their powers, and that their acts were the cause of the disaster, and hence is to be drawn the inference that the United States is responsible for the injury thus done to our countrymen, for which no redress has thus far been furnished.
That this view of ours is by no means strange in international law is sufficiently shown by the statements of W. E. Hall, one of the most recent authorities in matters of international law, who in his Treatise on International Law, Article II, chapter 4, page 26, expresses himself as follows as regards the responsibility of a State for acts committed by its naval and military administrative officers:
* * * Its administrative officials (i. e., those of the State) and its naval and military commanders are engaged in carrying out the policy and the particular orders of the Government, and they are under the immediate and disciplinary control of the Executive. Presumably, therefore, acts done by them are acts sanctioned by the State, and until such acts are disavowed and until, if they are of sufficient importance, their authors are punished, the State may fairly be supposed to have identified itself with them. Where, consequently, acts or omissions which are productive of injury, in reasonable measure, to a foreign state or its subjects are committed by persons of the classes mentioned, their government is bound to disavow them and to inflict punishment and to give reparation when necessary.
Easy as it would be to supplement the facts already stated by additional facts which were brought to light at the trial (said additional facts having reference to the legality of the whole proceedings of the sheriff, and being calculated to throw a characteristic light thereon) no attempt will here be made to do. so, inasmuch as the result of our own investigations is sufficient to exhibit the facts exhaustively.
No attempt, therefore, will here be made to ascertain whether the formation of the posse comitatus by the sheriff was according to law, whether he himself was legally authorized to stop the peaceful march of the strikers to Lattimer, and no lengthy consideration will be given to the remarkable phenomenon that Sheriff Martin, who was, it is said, surrounded by the alleged riotous crowd at the critical moment and thrown upon his knees, whereupon two men pointed their revolvers at him, while a third stood before him with a drawn knife, and is even [Page 35] said to have struck at him with that weapon, came out of the affair wholly uninjured.
Without attempting to cast any further light upon the facts as they were laid before the Federal Government on the basis of our investigation, the reply of the State Department contents itself in the main with mentioning the depositions of the witnesses both for the prosecution and the defense—i. e., with reproducing the report made by Mr. Hoyt, the delegate of the Federal Government at the trial, and with then referring to the verdict rendered in the case, which is characterized as a just one.
Although we can not recognize this portion of the note of the State Department, which is devoted to considering the facts, as a refutation of the facts presented by us, inasmuch as the statements contained in the aforesaid reply of the Department which relate to this matter, and which are limited to the directions above pointed out, do not amount to a de facto refutation, still the considerations and conclusions reached by the United States Government in connection with the result of the trial, call for a series of remarks which show the controvertibility of said considerations and conclusions.
Four fundamental thoughts appear from the statements of the Federal Government, on which this legal argument is chiefly based, which argument culminates in the conclusion that it can not recognize the legitimacy of the claim presented by us.
In the first place, the rule is laid down that the responsibility of a government toward aliens does not extend any further than toward its own citizens or subjects, and that aliens can claim no more favorable treatment than natives can.
The legitimacy of this position can not be thus generally admitted.
It follows from the idea and the nature of sovereignty, on the one hand, and from citizenship on the other, that the supreme power of the State embraces the legal personality of all individuals who belong to the State exclusively and entirely, and that, vice versa, the individual is unconditionally subject to the State to which he belongs in all matters that concern his legal existence. Whatever the State orders to be done in legal form to its own subjects is juridically “right.” The case is otherwise with the alien.
Although he is without a doubt subject to the laws of the country of his abode as soon as he sets foot on foreign soil, still he is not obliged to suffer absolute wrong. On that point the situation of an alien is quite different from that of a native citizen, for behind him stands international law and the State, whose duty it is to protect him, even beyond its own borders.
By a manifest wrong, however, committed against a foreign subject, not only the individual, but in him the foreign State is wronged, and consequently has a right to seek redress.
Thus Andres Bello, a not very recent author, who is so highly esteemed in America, says in his Principles of International Law, page 82:
The jurisdictional acts of a nation over aliens residing in its territory must be respected by other nations, because when we set foot on the soil of a foreign State we incur * * * the obligation to submit to its laws, and consequently to the rules which it has established for the administration of justice. The State, however, likewise incurs the obligation to observe the same as regards the alien, and in case of a palpable infraction the injury that is done to him is an injury done to the society of which he is a member.
In the same sense, Franz yon Listz says in his International Law, which appeared in the year 1898, page 126:
Any violation of international duty is an injury done to a State. That State, however, may be injured not only directly * * * but indirectly in its subjects or citizens and its protégés.
The second principle on which the arguments of the State Department are based is that aliens in general have no claim to indemnity for damages resulting from the necessity of watching over the public safety and welfare, especially if they take part in an insurrection or in a civil war. When the United States Government rests its case, in this connection, on the principles of law which govern the question of the duty of governments to pay indemnity in case of an insurrection or civil war (in another part of its note it says, with reference to the present case: “This Government can not tolerate a state of anarchy, either threatened or inaugurated”), it bases its action on the supposition that the circumstances which prevailed at Lattimer and in the vicinity on and about September 10, 1897, must be considered as a civil war, or at least as an insurrection.
Although it may be admitted as a general rule that, according to the prevailing doctrine of international law, it is not the duty of a government to pay indemnity for damages that have accrued to foreign subjects or citizens from an insurrection, attention must be called to the fact that this principle is not recognized generally, and without exception, and that Alphonso Rivier, the very authority on international law whom the State Department quotes in support of its international assertions, considers in his Principles du Droit des Gens, volume 2, page 43, that, in case an indemnity of aliens can be obtained through the intervention of their Government, such an indemnity is based upon right. “An obligation quasi ex delicto” it is said there, “which is of considerable importance, is that which is incumbent upon the State by reason of damage done to the subjects of another State by a civil war, an insurrection, or a riot.” It is alleged, in order to deny the existence of this obligation, that an alien who is settled in the territory shall not be treated better than a native. This is true in principle; but if the native suffers from the disorder that prevails in the country, it is because he has not the means of securing indemnity.
“Why should an alien be obliged to suffer likewise, if his State, taking his cause in hand, has the means to compel the other to indemnify him?”
Laying the question wholly aside whether a government is or is not bound to pay indemnity in case of internal disturbances, it can not be admitted that, in connection with the occurrences at Lattimer, a civil war or an insurrection can properly be spoken of, and thus all conclusions that might be drawn from these inadequate premises must lose all their force.
It is possible to speak of civil war as an internal state of war only when there has been an uprising, “thus, when the existing Constitution is positively rejected, arid recourse is had to arms, whether the contest that arises concerns the existing form of government or the existing principles of government.”
Civil war thus offers an essentially political condition of facts, and a disturbance can never be considered as civil war if “recourse is had to armed force against authorities or governmental acts with a view to compelling certain acts or omissions on the part of the authorities of the State.”
[Page 37]Just so the political purpose, and especially the de facto suspension, of the authorities of the State must be regarded at a given moment as decisive criteria of an insurrection. (See F. von Martiz, International Redress in Penal Cases, p. 283, et seq.)
It seems wholly incompatible with the essential characteristics of civil war and insurrection here mentioned—nay, it seems wholly impossible to include that which took place at West Hazelton and Lattimer on the 10th of September, 1897, and the following days in the two above-named categories. That the strikers of Harwood had no political object in view in their march to Lattimer, and had no intention save that which they are said to have characterized by the words placed in their mouths by the witnesses for the defense viz, “Stop Lattimer mines,” can not be disputed any more than can the fact that there can be no question of a suspension or a refusal of the power of the State to act, since that power was unfortunately quite too strongly asserted, and in our view in an unjustifiable manner.
In continuation of its deductions the Department of State remarks that the Government can not admit that, in the present case, legal injustice has been done. Even if it were to be conceded that the sheriff and his deputies acted unlawfully—which has not been proved— still, the remedy by way of diplomatic intervention can not be invoked until all remedies have been exhausted before the ordinary judicial tribunals, which remedies in this case are abundantly afforded.
In connection with this assertion the final fundamental view is expressed that, in this case, there has been no denial of justice on which diplomatic intervention could be based, because a careful investigation of the rulings of the court at the trial and of the instructions to the jury show they were characterized by ability, learning, integrity, and impartiality, in addition to which the remark already quoted is made that, although there was a certain degree of excitement in the community in which the strike occurred, it can not be justly characterized as prejudice in the judicial sense of that term.
These arguments can not be considered as cogent.
There is a denial of justice, not only when a well-founded 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.
If the case arises, in one way or another, of a de facto denial of justice, then, since the making of reprisals (which was originally closely connected therewith as the immediate consequence of a denial of justice) has now ceased to be the usual way of immediately answering such denial, then, I say, the State which considers that there has been a denial of justice is undoubtedly authorized to use its intervention, diplomatically, with the foreign State concerned in order to secure redress for the wrong that has been done.
In corroboration of these statements, reference may be made to Hugo Grotius, De Jure Belli ac Pacis, book 3, chapter 11, where we find the following words:
Another kind of forcible execution is the ἐνεχῦρᾶбἱoς or the taking of a pledge (security) among the various peoples, which the more recent jurists call the right of reprisals * * * There is ground for this, as the jurists say, when right is denied.
This is understood to be the case, not only if judgment against a guilty person or a debtor can not be obtained within a reasonable time, but also if, in a case that is in [Page 38] no way doubtful, * * * judgment be rendered evidently against right, for the authority of the magistrate pronouncing judgment has not the same weight in the case of aliens that it has in that of the subjects of the Government.
The majority of recent authors agree with Grotius; thus, for instance, A. W. Heffter, in his book entitled “European International Law of the Present Day,” section 103 a, says:
There is a denial of justice when a well-founded legal claim is not recognized or executed by the competent authorities, either judicial or executive, * * * and also when no redress is secured by the highest authority in the State.
The effect of a denial of justice which has been proved consists in the obligations of the State which is bound to afford redress to furnish due satisfaction to the party who has been wronged at the instance of his Government.
In further corroboration of this principle special passages may be quoted from the writings of American statesmen, viz, Mr. Forsyth, Secretaiy of State, to Mr. Semple, February, 1839, MSS. Inst. Colombia; Mr. Fish, Secretary of State, to Mr. Foster, December 16, 1873, MSS. Inst. Mex.; Mr. Bayard, Secretary of State, to Mr. McLane, June 23, 1886, MSS. Inst. France, which latter again refers to Phillimore, Int. Law, and to Sir Travers Twiss, Law of Nations.—Wharton, A Digest of the International Law of the United States, vol. 2, Chap. IX, sec. 230.
As to the statement that in the present special case abundant remedies are afforded for redress, among which remedies the Federal Government evidently had in mind the bringing of a civil action for damages, the answer may be made that the result of the trial held and the fact that at that trial the action of the sheriff and the deputies was in nowise censured must render all claims for damages by the parties concerned, by means of a civil action, almost entirely hopeless from the very outset, and that the men are scarcely in a position to defray the expense connected with such steps.
Finally, as regards the assertion made in this connection that the illegality of the sheriff’s course has not been shown, attention may once more be called to the fact that the trial which was held, at which only the charge of murder was considered, can not furnish a standard for the consideration of the question of the legality and propriety of the action of the sheriff and the deputies, but that we must insist that until proof to the contrary shall be furnished the illegality of the action of the sheriff and his men appears to have been shown by the evidence collected by us and laid before the American Government.
It is readily seen from the foregoing statements that we can not consider the view taken by the Department of State in its note of February 4, 1899, as conclusive, and that we must consequently again bring our claim to the attention of the United States Government, both from our original point of view and also on the basis in which it now thinks proper to rest its case. We must leave it to the friendly feelings of the Federal Government to reconsider the case in the light of the considerations presented by us and to adopt such a decision as it may think proper.
In case the new appeal which we hereby make to the sense of justice and equity of the United States Government shall not succeed in causing it to deviate from its present attitude we propose that the difference between us shall be submitted to a court of arbitration for settlement.
Inasmuch as the case in question is not of a territorial character, and [Page 39] is not a question of political power, but as the difference of opinions merely relates to the legal view taken of the case, the matter seems to be a very proper one for submission to court of arbitration in order that the two Governments may reach an agreement without in any way sacrificing their dignity.
It may the more confidently be assumed that the United States Government will not hesitate to accept this proposition, since it has always made more earnest efforts than have other powers to pave the way for the acceptance of the doctrine, on a liberal scale, of the settlement of international disputes by arbitration, and since the states of Europe are just now seriously considering the question of bringing this doctrine nearer to its practical realization.
In having the honor, Mr. Secretary of State, to bring these considerations of my Government (in pursuance of instructions received) to your notice, I avail myself of this additional occasion to renew to you the assurance of my most distinguished consideration.