tection, either by virtue of a treaty or of the official character of the person assailed.1 By the fact that weak governments like China, Morocco and others in the Far and Near East are held to a high degree of responsibility for injuries due to mob violence, it may be concluded that a fundamental condition of non-liability of the government is a stable political organization normally adequate to prevent such outbreaks.

The difficulty in determining governmental liability lies in establishing what is "due diligence" in a given case. The question of burden of proof is of minor importance, inasmuch as the happening of the event usually throws upon the defendant government the duty to show that it has used its best efforts to prevent the disaster and punish the guilty. In well-ordered states evidence of due diligence will be more readily received as a bar to a claim for indemnity than in normally disturbed states like China and other countries in the Near and Far East. Nevertheless, aside from any question of delinquency upon the part of the authorities, it may be said that in most cases of injuries inflicted upon aliens during riots, indemnities have been paid as a matter of equity, either because of the fact that the fury of the mob was directed against aliens as such, or against the subjects of a certain foreign power, as in the Aigues-Mortes riots in 1893, or because such outbreaks having occurred on several occasions within the same state, a moral obligation to make amends is assumed by the state, either for its inability to prevent such disorders or for the inadequacy of redress

1 The responsibility of governments for mob violence, by J. B. Moore, Columbia Law Times, May, 1892, 211–215. See also articles by James Bryce, Legal and constitutional aspects of the lynching at New Orleans, 4 New Review, May, 1891, 385– 397; by E. W. Huffcut, İnternational liability for mob injuries, 2 Annals of the Amer. Acad. of Pol. & Soc. Science (1891), 69–84; by H. Arias, The non-liability of states for damages suffered by foreigners in the course of a riot, an insurrection or civil war, 7 A. J. I. L. (1913), 724–766; and see also a good article on the same general subject by Julius Goebel, Jr., in 8 A. J. I. L. (1914), 802-852 and a doctoral dissertation by Georg Muszack, Ueber die Haftung einer Regierung für Schäden welche Ausländer gelegentlich inneren Unruhen in ihren Landen erlitten haben, Strassburg, 1905, in both of which there is an interesting discussion of theory. See also Moore's Dig. VI, 809– 883, and the general works of Calvo, III, § 1280 et seq.; Bluntschli, § 380 bis; Hall, 6th ed., 215, 219; Westlake, 2nd ed., I, 329; Oppenheim, 2nd ed., I, 222; G. de Leval, Protection diplomatique des nationaux, 173.

through judicial channels1. The legal aspects of state responsibility in these cases will be considered presently.

90. Special Protection Due in Certain Cases.

The obligation to indemnify arising out of a treaty guaranty of special protection, regardless of any delinquency of the authorities, is illustrated in the case of the Panama riot claims of 1856 against New Granada, which the latter country satisfied on account of having undertaken, by article 35 of the Treaty of 1846 with the United States, "to preserve peace and good order along the transit route." "2 Whereever a government obligates itself to preserve order, as weak countries frequently do, claims for injuries arising out of mob violence are usually rigorously prosecuted. China, indeed, regardless of treaties, has in innumerable cases been held to a degree of responsibility amounting actually to a guaranty of the security of persons and property of aliens.3 Turkey, Morocco and other countries where governmental control is weak and civil disorders are not an abnormal condition are held only to a slightly narrower degree of responsibility.

The United States has on several occasions resisted the attempts of foreign governments to fix liability on the federal government be

1 Aigues-Mortes riots, 1 R. G. D. I. P. (1894), 171 et seq.; Calvo, VI, § 256; Saida case in 1881, 1 R. G. D. I. P. (1894), 171, 175. Sacking of mission houses at Nictheroy, near Rio Janeiro, For. Rel., 1901, 28-30; Fortune Bay case, 1878, fisherman driven out in violation of treaty, Moore's Dig. VI, 819; 72 St. Pap. 1265. Killing of Chinese at Torreon, Mexico, 1910, for which Mexico paid a large indemnity, Convention of Dec. 16, 1911, 8 A. J. I. L. (1914), Suppl. 147. See Goebel in 8 A. J. I. L. 813, 819831, who finds, in cases of violence against certain nationalities, a legal liability, regardless of fault by the state. The payments made in numerous cases, and various statutes imposing a liability upon municipalities, regardless of fault, lend support to this view.

2 Moore's Arb. 1361-1396, at p. 1379. New Grenada assumed liability in the convention of Sept. 10, 1857, art. 1. See also, as to British claims, 65 St. Pap. 1219. In fact, so frequent have been the cases of murder of missionaries by rioters in China that a practice of the U. S. has grown up fixing the sum of $5,000 as indemnity for a human life. The British and French governments exact as heavy indemnities as possible, and exemplary damages as well, in flagrant cases. These cases in China are illustrated by the following incidents: the Boxer movement, Moore's Dig. V, 476-533; the Lienchou indemnity, For. Rel., 1906, 308–341; 1907, pt. I, 211-218; the Shanghai riots, For. Rel., 1908, 146; other cases in For. Rel. See also 35 Clunet (1908), 646; Bonfils, § 440; French claims, 51 St. Pap. 651, 668.

cause their subjects were by treaty promised "protection," on the ground that aliens were given the same protection and means of judicial redress as nationals.

The special protection due to the representatives of foreign powers explains the prompt payments of indemnities for attacks by mobs on foreign consuls or consular agents. The consul is considered as injured not alone as an individual but in his character as the representative of a foreign government.1

$91. Factors Imposing Liability upon the Government.

It has already been observed that on principle the government is not liable for the unlawful acts of a mob which by due diligence it was unable to quell or whose acts it was unable to prevent. On this ground the United States has, on occasion, declined to press claims against foreign governments and has successfully resisted the attempts of foreign governments to render the United States liable. It is a necessary condition, however, that judicial recourse be open to the victims of the mob. In such cases, the foreign government can on principle demand no greater reparation than the municipal law provides for nationals.3

1 Rev. Stat., § 4062 gives special protection to the diplomatic representatives of foreign governments. See also U. S. Consular Regulations, § 72. The following cases of attacks upon foreign ministers, consuls or consular agents by mobs were met by prompt indemnities: Spanish consul in New Orleans, Aug. 21, 1851, Moore's Dig. VI, 811, 813; U. S. consular agent in Mollendo, Peru, For. Rel. 1893, 509–524; French consulate in Naples, 1893, Calvo, I, § 256; German legation in Madrid, 1885, Calvo, § 1272; Spanish minister in Santiago, Chile, 1864, Wiesse, C., Le droit int. appliqué aux guerres civiles, Lausanne, 1898, p. 47. See also cases cited in Moore's Dig. V, § 704.

Attacks on Chinese in Denver, 1880, Moore's Dig. VI, 820; Attacks on British subjects in Texas, 1880, and on Japanese subjects in Utah, 1884, Moore's Dig. VI, 819; Attack on Protestant church at Acapulco, Mexico, 1875, Moore's Dig. VI, 815; Shann's case v. Spain (attack in Cuba, 1834), Moore's Dig. VI, 259; Derbec (France) v. U. S., Jan. 15, 1880, Moore's Arb. 3029; Laguerene (U. S.) v. Mexico, March 3, 1849, ibid. 3027 (dictum); Underhill (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, I, 45, 50; Serra (Italy) v. Peru, Nov. 25, 1899, Descamps and Renault, Rec. des traités, etc., 1901, p. 720; Bluntschli, § 380 bis.

* See speech of M. Pichon, French minister of foreign affairs, in connection with the Barcelona riots of 1909, 37 Clunet (1910), 1140. See also Russian defense against Swiss claims, 1905, Rapport du Conseil Federal (Switzerland), 1905, p. 300.

The government is liable, however, where it fails to show due diligence in preventing or suppressing the riot, or where the circumstances indicate an insufficiency of protective measures or a complicity of government officers or agents in the disorder. The negligent failure to prevent the riot has on several occasions been made the principal ground of government liability,' and in a few cases liability has been predicated upon insufficiency of police protection.2

Liability is still more definitely fastened upon the government where persons in its employ connive at or show indifference to the riot and the resulting damage or injuries.3

1 New Orleans attack upon Italians in 1891, Moore VI, 837 et seq.; Westlake, I, 329; James Bryce in 4 New Review, May 1891, 385; 18 Clunet (1891), 1147-1161; Colorado riot against Italians in 1895 (authorities made no resistance), For. Rel., 1895, II, 938 et seq.; Rock Springs riot against Chinese, 1885, Moore's Dig. VI, 822 et seq. (local authorities stood by with evidence of actual approval); Casablanca riots directed against foreign workmen, 1907, For. Rel., 1907, II, 889-899 (some conflicting evidence as to whether failure to prevent riot was due to negligence or not); Dupleix affair of France v. Japan, massacres in 1868; Radcliffe claim (Gt. Brit.) v. U. S. for destruction of claimant's fish hatchery in Colorado, 1901, where state failed to afford protection, notwithstanding request therefor. 34 Stat. L. 1400; Sen. Doc. 271, 58th Cong., 2nd sess., H. Doc. 441, 59th Cong., 1st sess.; Riots against Greeks in South Omaha, 1909, where police, with notice of hostility against the Greeks, permitted circulation of petition calling mass meeting to devise measures to "effectively rid" the city of the Greeks, and permitted the mass meeting and the inflammatory speeches there uttered, and chief of police allowed half his force to remain off duty. The Department of State would be justified in considering these facts as amounting to police negligence.

2 Cases in Marsovan and elsewhere in Turkey, Moore's Dig. VI, 865; For. Rel., 1897, 588-92; Bain case (Gt. Brit.), v. U. S., 1895 (shot unintentionally by rioters; police hid for safety behind cotton bales), For. Rel., 1895, I, 686-696, 298-301, Moore's Dig. VI, 849; Wexel and De Gress (U. S.) v. Peru, 1876, Moore's Dig. VI, 817; Don Pacifico (Gt. Brit.) v. Greece, 1847, Moore's Dig. VI, 852. Several cases in which the victims were taken from jail by a mob (New Orleans case in 1891, supra; Hahnville, La, For. Rel., 1896, 396-426; 1897, 353–354; Tallulah, La, For. Rel., 1899, 440-466; ibid. 1900, 715–731 and President's messages, 1899 and 1900; Moreno case in California, 1895, Moore's Dig. VI, 851; Albano case in Tampa, Fla., 1910, H. Doc. 105, 63rd Cong., 1st sess., are prima facie chargeable to insufficiency of police protection, although the U. S. denied government liability and paid indemnities out of humane considerations or as an act of grace.

Mr. Fish, Sec'y of State, to Mr. Partridge, March 5, 1875 (a case in Brazil), 2 Wharton, 602; Buildings burned in Marsovan, Harpoot and Marash in presence of Turkish soldiery, Moore's Dig. VI, 865 citing For. Rel. 1893 and 1895, and President's message, 1896; Chinese riots in 1856, where American citizens were compelled

The liability of the government is even less doubtful where the police or other officials are implicated in the violence. So where the mob was aided by soldiers or gendarmes, or where the police took part in the assault,2 governmental liability was asserted and pressed to a successful issue.

The failure to punish the guilty individuals furnishes a ground of liability. The difficulty of ascertaining the identity of the guilty individuals and of securing their.indictment and punishment is, owing to the circumstances of such mob disorders, easily apparent. The identity of individuals is usually lost in the mob and public sympathy with rioters usually frustrates every attempt to indict, try, and punish. The United States, notwithstanding denial of legal liability, has in a number of cases paid indemnities to foreign governments where there was a failure to punish any guilty individuals.3

The peculiar constitutional position of the United States by which the rights of aliens are assured by the federal government under treaty and yet the punishment of offenses against these rights is within the control of the states, has caused many protracted arguments in mob violence cases. Owing to local feeling, it is generally impossible to secure the indictment and punishment of rioters, and state officials do not always use their best efforts to bring about their prosecution. to flee from the fury of the mob, supported by the authorities, Moore's Arb. 4627; Wright claim against Guatemala, For. Rel., 1909, 354–355.

1 Don Pacifico case (Great Britain) v. Greece, Moore's Dig. VI, 852, citing 39 Br. and For. St. Pap.

U. S. S. Baltimore v. Chile, 1890, Moore's Dig. VI, 854-864; Riots at Portau-Prince, Haiti, 1885, Moore's Arb. 1859; Riots in Panama against officers of U. S. S. Columbia, 1906, and against sailors of U. S. S. Buffalo, 1908, For. Rel., 1909, 474, 491; Panama Riot claims, Moore's Arb. 1361 et seq.; Donoughho (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3014; Jeannotat (U. S.) v. Mexico, ibid. 3674. While the victims have generally been referred to their judicial remedies and a denial of government liability was predicated largely upon their failure to sue civilly, the futility of a resort to the civil courts is as a rule even greater than the attempt to prosecute criminally. The cases indicate that the argument has not been seriously pursued in bar of the claimant's title to relief.

In the Erwin case in Mississippi (1901), the identity of the guilty persons was not ascertained, For. Rel., 1901, 283 et seq. In the New Orleans (1891), Tallulah, Moreno and Suaste cases no indictments were found. In the South Omaha (1909) case, no one was brought to trial, although a few were indicted. In the Don Pacifico case there was a failure to pursue judicial inquiries or institute prosecution.