In

against the State for outrages committed by rioters.

So much for the case considered on the assumption that the national government has complete control of the matter. Now, let us see how far the case is affected by the fact that the powers of the national government are limited.

Austria was told that the courts were | lynching took place with the connivance open; the offending draymen might be of the public authorities, or through any indicted; Haynau might bring a civil ac- deficiency in prompt action on their part. tion for damages. Further than this it In his last despatch, Mr. Blaine admits was beyond the power of the queen to that any neglect attributable to these auhelp him. No doubt if an outrage on for-thorities might properly form a ground for eigners were of an atrocious nature, and asking Congress to vote a compensatory if juries refused to convict in the teeth sum to the relatives of the slain men. of evidence, and, still more, if similar the absence of such neglect, there is not outrages became frequent and went un- by English law, nor, I think, by the mu punished, the nation to which those for-nicipal law of any American State, a claim eigners belonged might properly insist that some better security might be provided for its subjects than the law and courts actually gave, and might treat the refusal as an offence justifying retaliation or war. Something like this has seemed not unlikely to happen as regards the Chinese in those parts of America where they abound, and where they are frequently illused by the populace. A European gov-leaves with the States of the Union the ernment would have resented such ill usage more warmly than China has done. The question what amount of palpable and recurring denial of justice would justify strong retaliative measures is one of degree, and does not seem to have recently arisen between civilized nations. But evidently a government would be bound to show its bona fides by endeavoring to improve its law and administration, should they prove insufficient for the protection of foreigners, or else must submit to be relegated to the category of semi-civilized communities.

The Constitution of the United States

right to make and the right to administer the ordinary civil and criminal laws. The preservation of order, the trial and punishment of crime belong to each State within its territorial limits, except so far as special departments of legislation or judicature may have been transferred to Congress or to the Federal courts. The presumption being in favor of the State, a right of Federal interference can be established only by showing a positive grant of power. Can any such grant be shown in the present case? There is nothing in the Constitution withdrawing Italy might also demand compensation | aliens from the operation of the ordinary for the families of her lynched subjects. (Both of them, it seems, were fugitives from Italian justice.) Primarily, the remedy would be by an action for damages against the lynchers (if the local law gives such an action to the representatives of the slain); but if this were unavailable, or if the jury refused to award damages though the case was proved, the request might be preferred to the government of the United States. The obligation of the government would, of course, be much more definite if it could be shown that the

It seems that in Louisiana the relatives have such an action. Whether an action lies also against the parish, which in Louisiana corresponds to the county in other States, I do not know. Aliens have the advantage of being able to bring an action in a Federal court if they choose to do so.

State laws or extending to them an exceptional jurisdiction of Federal courts and application of Federal statutes. The only provisions which seem in point * are that by which treaties duly made are declared to be "the supreme law of the land" (Art. VI., sec. 1), and that which extends the power of the Federal judicature to "cases arising under treaties made under the authority of the United States." (Art. III., sec. 2.) It may, perhaps, be argued that where rights have (as in this instance) been secured to certain aliens by treaty, the murder of those aliens is a breach of the treaty, and such breach,

* The provisions of Amendment XIV. do not seem to be in point, for the State of Louisiana has done nothing against Italians.

therefore, a case falling under_the_juris- | existing law it seems to have no more diction of the Federal courts. To discuss power to prosecute in Louisiana than it this contention would lead us into a tech- has in Canada. Supposing, however, that nical argument unsuited to these pages. Congress can pass a statute bringing future So far as I have been able to gather, cases of violence done to aliens under American lawyers do not think that Art. Federal jurisdiction, the powers of the III., sec. 2, applies, though some of them Federal government will still remain very hold that it might have been made to apply limited. It will be unable to strengthen had Congress legislated upon the subject, the police force and instruct it to be speas it legislated after the famous case of cially watchful in protecting aliens, for Macleod fifty years ago. It would, how there is no Federal police in Louisiana. ever, appear that the point is not quite It will remain unable to change the venue clear, for President Harrison has referred (as we could in England) from Louisiana it to his legal advisers, who have not yet to some other part of the Union in which delivered their reply. Be this as it may, I popular feeling against any particular apprehend that a treaty might be so class of aliens may be less vehement, framed as expressly to cover cases of this because under the Federal Constitution nature and that a statute might be passed | (Amendment VI.)"in all criminal proseto carry out the treaty and provide for the cations the accused shall enjoy the right trial by the Federal courts of offences to a speedy and public trial by an impar committed against it. There is nothing tial jury of the State and district wherein in the Constitution of the United States to the crime shall have been committed." It prevent cases of this kind from being will be unable to alter the usual method of brought by treaty within the purview of criminal procedure, because by another Federal power. Still less is there any- constitutional provision (Amendment V.) thing in the nature of a Federal system to leave aliens to the tender mercies of the component States. The Swiss Federal Constitution, for instance, seems expressly to provide for their protection by the central authority, allowing the Federal Assembly to legislate regarding them, and giving the Federal courts jurisdiction over offences in breach of international law. (Arts. 85, 112, 113.)

Assuming for the moment that the present case (owing either to the wording of the treaty or to the want of legislation to carry it out) cannot be brought within Federal jurisdiction as being a violation of a treaty, we may now ask, What is the position of the United States government in face of the claim of Italy for redress? That government can of itself do nothing to give satisfaction by way of punishment of the offenders. This belongs to the State of Louisiana. The State authorities cannot be compelled to present a bill to the grand jury. If they do the grand jury may throw out the bill. Even if a true bill is found, the strong probability is that a petty jury will acquit the persons charged. In whichever of these three ways the denial of punishment arises, the Federal government is helpless. It cannot offer even such redress as England offered in the Haynau case by undertaking to secure a prosecution. Under the

jury, and is (at the date of this writing) under considA bill has, in fact, been presented to the grand eration by that body. The general opinion is that it will be thrown out.

66

no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.' The American government will, therefore, be forced to admit that the obligation of protecting the persons of resident aliens is one which cannot be discharged as efficiently in America as the Italian government can discharge it in Italy, because the internal structure of their polity has denied to the executive legislature and judiciary the requisite legal powers.

The Americans may indeed say, falling back upon the argument suggested by the words of the Treaty of 1871: "All that we have by this treaty promised to give to Italians is the same enjoyment of rights and the same personal protection as our own native citizens receive. Natives of Pennsylvania lynched in Louisiana would be no better off than subjects of Italy. Italians coming to Louisiana must be taken to do so with the knowledge that their position will not and cannot be better than that of Pennsylvanians. And the Italian government itself must, in making the Treaty of 1871, be held to have bad notice, in the very form of words used, that this was all which the stipulations of that treaty secured them. It is matter of common notoriety that our polity is regu lated by a constitution which limits the powers of the national government and in particular leaves the administration of tract with you is subject to the qualifica criminal justice to the States. Our contions which your knowledge implies."

To this argument Italy may reply: "The internal polity of a nation is matter for itself, but not for the other nations which contract with it; and the powers which its own municipal law gives to a government are in no wise the measure of its international obligations. Nothing can cut down these obligations except express provisions. Moreover, since your constitution makes treaties part of the supreme law of the land, we Italians were entitled to assume that your Congress would pass all such legislation as would give the fullest possible efficiency to the stipula tions of the Treaty of 1871. If your national government has omitted to do so, it must bear the consequences."

The latter part of the supposed Italian answer seems to be sound; but as to the former it must be remarked that free governments, such as that of Italy, must be presumed to know that in a free country the executive, though it usually possesses the power to institute judicial process, has no right to interfere with the results of that process, and may be unable to change the established system of procedure. The United States are, therefore, on stronger ground when they assert that they cannot overset the finding of a jury than when they allege that they are unable to set a jury in motion.

dignity of a great nation. But this difficulty no doubt pressed heavily upon it.

We may now sum up the conclusions to which the foregoing discussion has led us. They are these:

I. A foreign government is primâ facie entitled to redress for injuries lawlessly inflicted on its subjects, even if no treaty grants this right, and a fortiori if a treaty does in fact secure it.

2. This redress may be civil by way of pecuniary compensation, or criminal by the punishment of the offenders.

3. The civil form of redress presents no great difficulty. Primarily it may be had by way of civil action against the wrongdoers; but if that is refused, or proves insufficient, the government, in this instance Congress, may grant compensation, and to any extent it pleases.*

4. The criminal form is more important, because it affords better security for the protection of alien residents in future. Redress in this form, i.e., punishment, can be given, not by the executive or legisla ture, but only by prosecution to conviction of the offenders under the ordinary law.

5. If punishment fails to be awarded, the defects of judicial procedure, or the perverseness of those who administer it locally, will be no answer to the complaints of a foreign government, and if the denial of justice is palpable, and the case serious, a foreign government will be entitled to treat such denial as a grave breach of international rights, possibly even as a casus belli.

6. This complication may arise in any country where the executive cannot interfere with the ordinary process of law. It is, however, specially apt to arise in the United States, because.

(a)

(8)

This is by no means the first time that
the constitutional restrictions imposed
upon the Federal government have
brought it into difficulties with foreign
powers. In the Macleod case serious
trouble might not have arisen with En-
gland had not a British subject whom the
New York courts were trying for murder
for acts done as a British soldier been
fortunately acquitted. In 1851, Mr. Web-
ster had an embarrassing controversy
with Spain, and Congress ultimately voted
a sum as compensation to injured Spanish
subjects. And so lately as 1882 and 1883,
it was generally understood that when the
British government complained repeatedly
of the incitements to assassination and ap-
peals for subscriptions to a dynamite fund
published in certain New York journals,
the American National Executive found
itself unable to take those steps which the
rules of international comity suggested
and the gravity of the occasion required.
The secretary of state then, like Mr.
Blaine now, sought to avoid dwelling upon
the limitations of its authority as an ex-
cuse for its quiescence, because it felt, as
every government must feel, that in inter-
national matters this is at best an unsat-
isfactory answer, somewhat below the Congress.

The Federal government has, apparently, at present, no power to institute a prosecution for the lynching of aliens in a State.

The Federal government, even if it has this power, or if (as appears to be possible) it obtains this power by appropriate legis lation, cannot transfer the trial from the district where the offence was committed to some other district, still less create a special tribunal.

7. The Federal government of the United States is in the further difficulty of not being able to interfere with the police of a State for the protection of aliens.

8. These difficulties are not, however, Mr. Blaine seems willing to suggest a vote to

inherent in every Federal government eo | gain, or that the Republican party leaders

nomine. They arise out of the actual provisions of the United States Federal Constitution, and might have been avoided by a different drafting of that constitution. Other similar difficulties (though, perhaps, fewer than might have been expected) with regard to aliens have arisen from the omission to place what may be called the internal regulation of the foreign relations of the United States under the full control of the Federal power. I refer to them only lest it should be fancied that a case like this is the only source whence trouble may be expected.

will venture to oppose the general current of American feeling. What is most to be wished, though hardly to be expected, is that these deplorable events should lead to a reform in the government of Louisiana, and in particular of the city of New Or leans. Lynching is the natural and almost the necessary outcome of a state of things in which ordinary justice cannot be secured.*

It has been observed that according to the generally accepted rules of international law the internal structure of a gov ernment, and the legal restrictions to The moral would seem to be that the which its central executive or legislature American government should put forth or judiciary may be subject, do not disall such powers as Congress possesses to charge it from the ordinary liabilities of a legislate for the protection of aliens and civilized power, even when those restricthe carrying out of treaties within the sev- tions may be supposed to be known to eral States (it has already full power as other nations. But let us imagine a power regards the District of Columbia and the which has in theory complete authority Territories), so as to be in a better posi-over all its subjects, wherever they reside, tion to meet any complaints from foreign while yet it in fact allows important groups powers. It might also, in preparing future of them to constitute distinct and prac treaties, so word them as virtually to extend the legislative authority of Congress as regards aliens, or, if this is thought undesirable, the treaties might be so expressed as to carry on their face a notice to the other contracting party of the limitations to which the national government is subject.

tically independent communities, with legislatures and executives whose action within their respective territories it does not control, though it takes under its charge all their international relations. Suppose that in one of these communities aliens are ill treated, and treaties violated in a way which gives a foreign government Some influential American statesman is just ground for complaint. Such a power said to have predicted that a serious con- would occupy a less defensible position flict between the Federal and State au- than the United States does in its conthorities may grow out of this Louisiana troversy with Italy. It could not allege incident. To me, I confess, nothing seems its want of legal right to protect aliens less probable. The general sentiment of and compel the observance of treaties, for the United States regrets, but scarcely its legal rights are complete. To say that condemns, the violence used at New Or- it was accustomed to leave to their own leans. There is at any rate no feeling devices communities which are in law as sufficient to encourage the present Federal much its subjects as the inhabitants of its authorities to enter on a conflict which capital, would be no answer at all to forwould immediately excite strong passions. eign governments. It would have to The Democratic party, which has now an choose between three disagreeable alterenormous majority in the House of Rep-natives. One would be to repudiate its resentatives, is the party specially inclined to champion State rights, and would resist any attempt to coerce Louisiana. It is certainly to be desired that the limits of Federal authority as regards the protection of aliens should be more exactly defined, and in some degree extended. But As an American writer truly says: "The assassinadefinition belongs primarily to the judi- tion of the chief of police at New Orleans last October ciary, and any extension must take place was undoubtedly the result of the same social condi in the way of ordinary legislation through massacre of the acquitted prisoners in the gaol. In Congress, seeing that it would be ex-such social conditions men's reliance on the law for tremely difficult to amend the Constitution. Protection is necessarily small. Somehow or other the known presence of Judge Lynch in a community makes There is, therefore, no reason to think that people careless about the character of the judges and the present administration will raise ques-like gluttonous persons who think they have a pill juries provided by the [State] Constitution. They are tions from which it has little or nothing to

international obligations, with the serious consequences which might follow. The second would be to pay compensation in respect of acts for which it was blameless, and whose recurrence it could not prevent.

tions which caused the failure of the jury trial and the

which is a sure cure for indigestion."

The third would be to coerce the com- | Elm walk, since the big beech came down,
munities in which the wrongs had been
committed, with the possible result of
provoking a rebellion.

3