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,1 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

1

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.

2 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.) . 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.

The federal government must content itself with a courteous request upon the governor of the state to secure punishment of the guilty, or to make appropriate amends. The offense being considered as one against state law, there is no legal power to bring the offenders to justice in the federal courts. The United States, on its own part, can show a consistent effort to bring about punishment, and on this ground has sometimes denied its liability for the injuries. Indemnities have been paid in such cases without the admission of legal liability. The inability through constitutional defects to enforce treaty rights of aliens is not, however, a sufficient answer to an assertion of international liability for violation of aliens' treaty rights, and where state officials are delinquent, either in preventing the riot or punishing the rioters, and decline to pay indemnities to the victims, the federal government must, by reason of the very defectiveness of its internal machinery, undertake this international liability. The recommendations of Presidents Harrison, McKinley, Roosevelt and Taft to bring within the jurisdiction of the federal courts offenses against the treaty rights of aliens, have not resulted in remedial legislation. The United States, moreover, has resisted the attempts of foreign governments to plead constitutional defenses as a bar to international obligations.2

§ 92. Statutory Compensation by Municipalities.

By the municipal law of some jurisdictions, cities and counties are

1 Senate Rep. 392, 54th Cong., 1st sess., to accompany S. 1580. Several bills have been introduced to bring about this result. For President Harrison's recommendation see message of 1891, For. Rel., 1891, vi; for President McKinley's recommendations, see messages of 1899 and 1900, For. Rel., 1899, xxiii, 1900, xxii; for President Roosevelt's, see For. Rel., 1906, xliii. See also 3 Op. Atty. Gen. 253. The federal government, as is the case in Switzerland (Constitution, art. 82, 112, 113), should have the exclusive right to legislate concerning aliens, just as it has the power to conclude treaties. It should at least have the power to prevent states from discriminating between aliens of different nationalities. Burr, Treaty-making power, 1912, p. 377 et seq. This constitutional conflict in the United States has on several occasions led to diplomatic difficulties with foreign governments. See Resolutions of the Institute of Int. Law, Sept. 10, 1900, Paragraph 4; 18 Annuaire, 255; Speech of Senator Edmunds, June 3, 1886, Cong. Record, v. 17, part 5, p. 5186; and a good discussion by Robert Lansing in 1908 Proceedings of the Amer. Soc. of Int. Law, v. 2, pp. 44-60. See also supra, p. 202, note 1.

2 Smyth case in Brazil, 1875, Moore's Dig. VI, 815.

compelled to indemnify the victims of mob violence. A law of 1795 to this effect in France, and another in Belgium, is still in force and has been invoked on many occasions. A similar system prevails in some of the states of Germany and in Austria. Several states of this country have enacted statutes making cities and counties liable for injuries inflicted upon private property and individuals by mobs.2 The theory underlying these statutes is that in a well-ordered community the citizens should prevent such injuries, and that the innocent victims of such a disaster should not alone bear a loss, which should be distributed among the members of the community at large. The theory is closely related to that justifying workmen's compensation, indemnity for errors of criminal justice, and social insurance generally.

3

The Institute of International Law considered that independently of the right of aliens to indemnity by municipal law, they have the right to compensation when injured in person or property during mob

1 The French decree of 1795 (10 vendémiaire an IV), which also applied to Belgium, has been somewhat amended by the law of April 5, 1884, arts. 106–109 and by the recent amending law of April 16, 1914 which governs the distribution of liability between state and commune. See 31 Rev. du. Dr. Pub. (1914), 445-448. The original French law is set out briefly in Calvo, III, § 1291. The law of 1884 imputes liability to the commune whether citizens or aliens caused the damage, whereas the law of 1795 excluded liability if caused by aliens. By both laws (§ 108 of the law of 1884) the commune is released from liability if it can prove that all measures within its power were taken to prevent the riot. The statute applies alike to aliens and to nationals, 24 Clunet (1897), 786. See De Groote, H., De la responsabilité des communes en cas d'émeute et de grève, Paris, 1906; Duvivier, Paul, Etude sur le décret du 10. vendémiaire an IV, Bruxelles, 1904. See also supra, p. 141 and works by Poissonier and Beaudouin, cited in note 2; G. de Leval in 24th Rep. of the Int. Law Asso. (1907), 207. See also 23 Journal du Dr. Administratif (1875), 526.

Statutes making communities liable for depredations committed by lawless persons have long existed in England. Ratcliffe v. Eden, 2 Cowp. 485; see also 4 Law Mag. and Rev. (1875), 552-562.

2 Statutes to this effect, varying in detail, have been enacted in the following states: California, Illinois, Kansas, Maine, New Hampshire, New York, Pennsylvania. Dillon, Municipal corporations, 5th ed., IV, §§ 1637-1638.

The constitutionality of these statutes has been upheld by the Supreme Court in Louisiana v. New Orleans, 109 U. S. 285; see also Pennsylvania Co. v. Chicago, 81 Fed. 317, and the extensive note in 6 Amer. & Eng. Ann. Cases, 268. It is, under most of the statutes, immaterial whether defendant could or ought to have prevented the destruction of plaintiff's property.

'See Darlington v. New York, 31 N. Y. 164.

violence where the fury of the mob is directed against aliens as such or as subjects of a certain state. This was considered by Prof. von Bar as an acknowledgment of the principle that the state does not guarantee aliens any greater security than nationals. When the injured person has provoked the violence against himself, the obligation of the state ceases.3

2

The fact that indemnities are so frequently paid in mob violence cases has led some writers to conclude that the distinction between equitable compensation and indemnity for legal fault is specious only, and that the mere happening of the event entails liability. It is not advisable, however, to eradicate the distinction or to impose upon the government a presumption of absolute guaranty for the security of aliens, notwithstanding the fact that in most of the cases, equitable considerations, if not law, dictate the justice of indemnity.

CIVIL WAR INJURIES

$93. General Principles and Theory.

The principles governing the responsibility of the state for injuries sustained by aliens during civil war bear close relation to those governing its responsibility in the case of mob violence, but embrace so many distinctively characteristic features that the subject warrants separate treatment. It is not without many difficulties. These arise principally from the fact that the practice of states has varied greatly in the application of such rules as may be considered to govern the subject.

The question of terminology need not detain us long. Publicists have distinguished between sedition, insurrection and civil war; but for present purposes these may be regarded as different degrees of a political uprising of part of a civilized society against the lawfully constituted authorities.1

1 18 Annuaire, 254-256. This excludes the theory of fault of the government, and there is much to be said in its support. Goebel in 8 A. J. I. L. (1914), 812.

2 18 Annuaire, 237.

3 18 Annuaire, 255, paragraph 3. The complete resolutions of the Institute of Sept. 10, 1900 on this subject are reprinted in Oppenheim, I, 224–225.

+ The distinctions are discussed in some detail in Lawrence's Wheaton, pp. 522-523, note 171.