The position of the Attorney-General, that Spain had no right to capture such a vessel on the high seas, etc., has called forth much adverse criticism. Both Woolsey and Dana justified the capture at the time. "The register of a foreign nation," said Dana, "is not, and by the law of nations is not recognized as being, a national voucher and guaranty of national character to all the world, and nations having cause to arrest a vessel, would go behind such a document to ascertain the jurisdictional fact which gives character to the document, and not the document to the fact." It was the duty of the Spanish captain, says Woolsey, to defend the coasts of Cuba against a vessel which was known to be under the control of the insurgents, for which he had been on the lookout, and against which the only effectual security was capture on the high seas. (Woolsey's International Law, 6th Ed., pp. 368, 369).

In a pamphlet on the "Case of the Virginius," Mr. George Tiener Curtis took similar ground. "We rest the seizure of this vessel," he says, "on the great right of self-defense, which, springing from the law of nature, is as thoroughly incorporated into the law of nations as any right can be."

SECTION 18.-INJURY TO FOREIGNERS BY MOB VIOLENCE.

NEW ORLEANS RIOT, 1851.

(2 Wharton's Digest, 600.)

A State is not responsible for injuries to aliens, through civil commotions or mob violence which it is unable to control.

On the receipt of intelligence from Havana, in 1851, of the summary execution in Cuba of a number of American citizens, who had accompanied Lopez on his filibustering expedition to that island, riots immediately took place in New Orleans and Key West, directed against the Spanish residents of those cities.. The Spanish consulate in New Orleans was attacked; and much injury was done to persons and property. For these injuries, the Spanish government demanded reparation from the government of the United States. To these demands, Mr. Webster, Secretary of State, replied, November 13, 1851, as follows:

"The assembling of mobs happens in all countries; popular violences occasionally break out everywhere, setting law at defiance, trampling on the rights of citizens and private men, and sometimes

on those of public officers, and the agents of foreign governments, especially entitled to protection. In these cases public faith and national honor require, not only that such outrages should be disavowed, but also that the perpetrators of them should be punished wherever it is possible to bring them to justice; and, further, that full satisfaction should be made in cases in which a duty to that effect rests with the government, according to the general principles of law, public faith, and the obligation of treaties. Mr. Calderon thinks that the enormity of this act of popular violence is heightened by its insult to the flag of Spain. The government of the United States would earnestly deprecate any indignity offered in this country in time of peace to the flag of a nation so ancient, so respectable, so renowned as Spain.

"It appears, however, that in point of fact no flag was actually flying or publicly exhibited when the outrage took place; but this can make no difference in regard to the real nature of the offense or its enormity. The persons composing the mob knew that they were offering insult and injury to an officer of Her Catholic Majesty, residing in the United States under the sanction of laws and treaties; and therefore their conduct admits of no justification. Nevertheless, Mr. Calderon and his government are aware that recent intelligence had then been received from Ilavana, not a little calculated to excite popular feeling in a great city, and to lead to popular excesses. If this be no justification, as it certainly is none, it may still be taken into view, and regarded as showing that the outrage, however flagrant, was committed in the heat of blood, and not in pursuance of any predetermined plan or purpose of injury or insult. ***

"While this government has manifested a willingness and determination to perform every duty which one friendly nation has a right to expect from another, in cases of this kind, it supposes that the rights of the Spanish consul, a public officer residing here under the protection of the United States government, are quite different from those of the Spanish subjects who have come into the country to mingle with our own citizens, and here to pursue their private business and objects. The former may claim special indemnity, the latter are entitled to such protection as is afforded to our own citizens. While, therefore, the losses of individuals, private Spanish subjects, are greatly to be regretted, yet it is understood that many American citizens suffered equal losses from the same cause. And these private individuals, subjects of Her Catholic Majesty, coming voluntarily to reside in the United States, have certainly no cause of complaint, if they are protected by the same law and the same administration of law, as native born citizens of this country.

They have in fact some advantages over the citizens of the State in which they happen to be, inasmuch as they are enabled, until they become citizens themselves, to prosecute for any injuries done to their persons or property in the courts of the United States, or the State courts, at their election.

"The President is of opinion, as already stated, that, for obvious reasons, the case of the consul is different, and that the government of the United States should provide for Mr. Laborde a just indemnity; and a recommendation to that effect will be laid before Congress, at an early period of its approaching session. This is all which it is in his power to do. The case may be a new one, but the President being of opinion that Mr. Laborde ought to be indemnified, has not thought it necessary to search for precedents."

It would appear, by the resolution of Congress, March 3, 1853, that Congress did not limit the indemnity to the losses incurred by the consul. The resolution is as follows:

"Resolved, etc., That the President of the United States be, and is hereby, requested to cause an investigation to be made of any losses that may have been sustained by the consul of Spain and other persons residing at New Orleans or at Key West in the year eighteen hundred and fifty-one, and who at that time were subjects of the Queen of Spain, by the violence of individuals arising out of intelligence then recently received at those places of the execution of certain persons at Havana, in Cuba, by the Spanish authorities of that island, and that such losses so ascertained to persons at that time subjects as aforesaid, on the certificate of the Secretary of State that the same are proven to the satisfaction of the President, together with the reasonable costs of the investigation, shall be paid to those entitled out of any money in the Treasury not otherwise appropriated." 1

1 The New Orleans Mob, 1891.-The questions growing out of this New Orleans affair, in 1891, present some peculiar features; and forcibly illustrate certain defects, as regards the conduct of foreign relations, in the federal system of the United States.

The Chief of Police of New Orleans had been assassinated in a most dastardly manner; and strong suspicions of complicity in the murder rested on the members of an Italian society called the "Mafia." A number of Italians were finally arrested and put upon their trial, but in the end were acquitted by the jury. Believing that the jury had been tampered with, and that there was, in this case, a signal failure of justice, a public indignation meeting was held, which was attended by the better class of citizens; inflammatory addresses were made, and measures apparently adopted to take the matter out of the hands of the court. Accordingly, a mob assembled the next morning, and, as it would appear, without any protest from state or city governments, broke open the jail where the accused were still incarcerated, and shot or hanged a number of the suspected Italians. Among this

CHAPTER III.

JURISDICTION ON THE HIGH SEAS.

SECTION 19.-Merchant Vessels.

THE "ATALANTA," 1856.

(8 Opin. Att-Gen., 73.)

Merchant ships on the high seas are subject to the jurisdiction of the country of their flag.

In 1856, a case arose in reference to seamen, supposed not to be citizens of the United States, who, having committed a mutiny at

number were several who were not naturalized, and were, therefore, still citizens of Italy.

The President, by the Secretary of State, expressed regret for the occurrence and declared his purpose to lay the matter before Congress at its next session, and to recommend that an indemnity be granted to the families of the murdered men. The Italian government was not satisfied with this position of the United States, but demanded further that the leaders of the mob be criminally prosecuted and punished according to law.

With this demand the government of the United States could not comply, however willing it might be to do so. It is well known that the federal courts have no common-law jurisdiction in criminal matters; it was impossible, therefore, to institute a criminal suit against these persons in those courts; and as the states are wholly independent of the Federal Government in respect of such jurisdiction, it was equally impossible to compel the government of the State of Louisiana to institute such proceedings. The government of the United States was therefore quite helpless in this aspect of the case, and could only listen to the complaints of Italy, and try to explain to her statesmen the intricacies of the United States constitution.

It is undoubtedly within the competence of Congress to confer upon the federal courts jurisdiction in this class of cases; but as yet it has not been done.

In regard to the merits of this case, it would seem that the United States should accept the responsibility as in fact they have done, for the acts of the mob. In the first place these persons were in the custody of the state government and for the purposes of international law, in that of the national government,—and therefore entitled to special protection. In the second place, there was no serious attempt 184

sea, on board of the American vessel Atalanta, were brought back in the vessel to Marseilles, where, on the application of the consul of the United States, they were received and imprisoned by the local authorities on shore.

Six of them were afterwards on his application taken from prison and placed on board the Atalanta for conveyance to the United States under charge of crime. Then, with notice to the consul, but in spite of his remonstrances, the local authorities went on board of the Atalanta, forcibly resumed possession of the prisoners, and replaced them in confinement on shore. Mr. Mason, in a note of the 27th of June, 1856, says:

"It is the first instance, in which a vessel wearing the flag of the United States, lying in a French port, or a French ship lying in a port of the United States has, since the date of the treaty, been visited by police officers without the authority of the consul." (MS. Department of State.) The correspondence between the two governments having been submitted to the Attorney-General of the United States, he concurred in opinion with the American Minister, "that the local authority of Marseilles exceeded its lawful power in substance, as well as in form, and that there could be no conflict on the part of France with other powers on account of the nationality of the prisoners, for they were always in the constructive, if not in the actual, custody of the United States."

CASE OF JOHN ANDERSON.

EVARTS, SEC. OF STATE, TO WELCH, JULY 11, 1879.

(1 Wharton's Digest, 123, 125.)

An offense committed on an American merchant vessel on the high seas is exclusively within the jurisdiction of the courts of the United States, whatever be the nationality of the accused.

"I enclose herewith a copy of a dispatch recently received from

on the part of the proper authorities to quell the riot; and it is generally understood that a government is liable internationally for injuries done to "alien residents by a mob which by due diligence it could have suppressed."

The Italian government eventually withdrew the demand for the punishment of the actors in the affair, and accepted a money indemnity instead.

For other cases under the subject of this section, see 1 Wharton's Digest, pp. 473, 482-486; Calvo: Droit International, 4th Ed., vol. III., pp. 142–156. And see

the case of Don Pacifico, infra, section 26, in which the claim for damages was enforced against Greece, on the ground that it was impossible to obtain justice through the ordinary channels-the courts.