ignominiously to grief from want of care, from want of work, from want of something more than a smart idea. The Idler and Lady Bountiful stand on a different plane. They are successes, and they deserve to be successes, for each play is in its own way logically worked out and does hold together from start to finish. But The Idler, if a clever play, is not an epoch-making play. It is not an advance upon Captain Swift, although it is, perhaps, on the whole as good as Captain Swift. A somewhat similar judgment has to be passed upon Lady Bountiful. It is not an epoch-making play ; it does not even mark an epoch in the history of Mr. Pinero's own artistic development. It is, of course, brilliantly written. It is a mere formality to say so much of any piece from Mr. Pinero's hands. But it is not dramatically up to the level of Mr. Pinero's best work. It gives the impression that Mr. Pinero, after being slightly stimulated by the new aim after the "unconventional" in dramatic work, had been seized by unexpected timidity and prevented from carrying out his determination to its true conclusion. In both these plays-The Idler and Lady Bountiful—the acting at its best is of rare excellence. Mr. Alexander has never been more convincing, more vital, more subtly human, than he is in the intensely difficult part of Mark Cross; Mr. Hare has never been happier than in his rendering of Roderick Heron, the meaner, baser, less endurable Skimpole. And while the leaders of the two little dramatic armies are good the followers are good too. Each play has helped to make a dramatic reputation. The Idler has given us in Mr. James Mason an American actor of the best type, a peer of Mr. John Drew. Lady Bountiful has shown us that Miss Webster in the small part of the Dickens'-like servant Amelia is gifted with very remarkable powers of impersonation and creation. JUSTIN HUNTLY MCCARTHY. This series of articles on the notable books and plays of the month will henceforth be contributed by various writers. Mr. L. F. Austin's papers, entitled "Folios and Footlights," will be included in the series. ** The Editor of this Review does not undertake to return any Manuscripts. NEW THE REVIEW. No. 24.-MAY, 1891. LEGAL AND CONSTITUTIONAL ASPECTS OF THE LYNCHING AT NEW ORLEANS, T1 'HE lynching a few weeks ago of eleven Italians by a New Orleans mob is an incident which has many aspects and suggests many reflections. That one of those secret societies which have long been a curse of Italy and Sicily should have taken root and become terribly powerful in the New World is of itself a singular phenomenon. That in a great and wealthy city like New Orleans it should be found practically impossible to bring notorious assassins to justice by the regular process of law is a still stranger and still more deplorable phenomenon. That the men who seized and slaughtered the acquitted Italian criminals should be the leading citizens of New Orleans; that they should have preferred thismethod of protecting their community to that of improving the legal procedure and administration of the State of Louisiana; that their conduct should have met with far more sympathy than reprobation over the United States generally, are facts curiously illustrative of the history of the Southern States and of the condition of society there. It is of none of these points, however, that I am about to speak in these few pages, but of the legal and constitutional questions growing out of the demand for redress which the Italian Government promptly addressed to the Government of the United States, and which was emphasised, in a somewhat brusque and hasty fashion, by the withdrawal of the Italian Minister from Washington. These questions are of interest not only to American publicists, but also to Englishmen, for they are questions which may, VOL. IV.-No. 24. 2 C in a different, but, perhaps, not less serious, form arise out of the anomalous position in which Britain now stands to her great selfgoverning Colonies. The best way to treat these questions will be to deal, first, with the general subject of the liability of one State to another in respect of injuries inflicted in its territory upon the subjects of that other, and secondly, to inquire how far this general liability may be modified and limited by the internal constitution of the State in whose territory the injuries occur, or by any practical difficulties which it may find in enforcing its authority upon its own subjects. The general question need not long detain us, because there is no great difference of opinion regarding it among international lawyers, nor much difference as regards the practice of civilised States. The well-admitted principle is that every civilised State is bound to secure to the subjects or citizens of another friendly State the same measure of personal liberty, personal security, and protection to property as it affords to its own subjects. A Frenchman is entitled in England to the same recourse to the civil and criminal courts as an Englishman has, and to be as fully cared for by the police. Particular disabilities may no doubt be imposed on an alien. He may be required to produce a passport, though passports are not required from native subjects; or he may be unable to hold real estate; or he may be required if plaintiff in an action to give security for costs which would not be demanded from a subject. Special reasons exist in these respects. But so far as regards the ordinary rights which are needed for the protection of person and property, he ought to receive just the treatment which the native subject has, no more and no less. If he does receive less, his Government has a primâ facie right to demand redress for him; and this redress may be either in the way of criminal proceedings against those who have injured him, or of pecuniary compensation from the authorities of the State which has permitted him to be injured without affording him due satisfaction by the methods which are open to its own citizens. To this general statement we must make one addition. Injury to a foreigner may proceed either from the executive officials of the State in which he is residing, or from its judicial officers, or from private persons. If from the executive officials, the liability of the State is obvious, because they are its agents, and their wrongful acts or omissions are its acts or omissions. If from judicial officers, the liability is much less direct and palpable. As regards private persons, the State, it is obvious, has still less to do with them, and is responsible not directly for their acts, but only for any neglect on its own part, either in preventing wrongs which a well-ordered Government ought to prevent, or in omitting to provide proper means for the effective administration of justice to punish those wrongs, or award compensation for them. So far we have spoken of civilised States. As regards semicivilised countries, such as Turkey or Morocco, where the amount of protection given to persons and property falls far below the standard which the European nations have come to observe, it is of course impossible for these nations to be content with obtaining for their subjects what the unlucky subject of a Mussulman Sultan has to put up with; and they have therefore made special arrangements under which Europeans may reside and carry on business in these countries with some better guarantee for their security than the local laws and courts and police afford. To enforce these arrangements is not always easy, so that our Envoys at Constantinople or Tangier are constantly employed in trying to obtain redress for the injuries which Englishmen suffer. The disorders in certain of the Spanish-American so-called Republics have occasionally brought them into what is practically the same category. There are, therefore, cases in which the behaviour of a State to its own subjects cannot be taken as the measure of its international obligations. If it falls short of the standard which is generally observed and expected, it cannot acquit itself by alleging the faults of its own administration. Reverting to civilised nations, the responsibility which their Governments admit for the protection of the subjects of a friendly Power rests upon what may be called general international comity. It exists in the absence of any formal treaty provisions, because it is suggested not only by considerations of humanity, but by the common interests of all States alike. But in many instances this "international common law," as one may venture to call it, has been expressly declared and recognised in a treaty securing equivalent rights to the citizens of each of the contracting States in the territories of the other. This has happened as between the United States and Italy. By the Treaty concluded in 1871, it is provided that "The citizens of each of the high contracting parties shall receive in the States and Territories of the other the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed on the natives." We may now, therefore, ask, What are the rights of the Italian Government in respect of lawless violence inflicted upon its subjects within the territory of the United States? Let us leave out of sight the federal structure of the American Government, and assume the United States to be a unified country like the United Kingdom, in which the Queen's writ runs everywhere, and where the Executive and the Legislature have exactly the same powers in every part of the country. Or, to put the same thing in other words, let us assume that the lynching happened, not in Louisiana, but in the Federal District of Columbia, where the Federal Government is supreme. Italy might demand satisfaction in the form of punishment to be inflicted on the lynchers. As the Government of a free people can proceed only in the prescribed way of regular judicial process, all the Federal Government could do would be to have the lynchers indicted for murder or manslaughter. The matter would, as in England, come first before a Grand Jury, and if the Grand Jury found a true bill, then before a petty jury. If the Grand Jury refused to find the bill, or if the petty jury acquitted the prisoners, the Government could do no more. Its powers would be exhausted. So would the powers of the British Government in a like case. And in fact, as has been observed in America, this is exactly what Lord Palmerston replied to the Austrian Government when it complained of the rough handling which General Haynau received from Barclay and Perkins' draymen in 1850. Austria was told that the courts were open; the offending draymen might be indicted; Haynau might bring a civil action for damages. Further |