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having timely notice of the threatened danger, have been guilty of such gross negligence in taking the necessary precautions as to amount to connivance.

If, therefore, it should appear that among those killed by the mob at New Orleans there were some Italian subjects who were resident or domiciled in that city, agreeabiy to our treaty with Italy, and not in violation of our immigration laws, and who were abiding in the peace of the United States and obeying the laws thereof and of the State of Louisiana, and that the public officers charged with the duty of protecting life and property in that city connived at the work of the mob, or, upon proper notice or information of the threatened danger, failed to take any steps for the preservation of the public peace and afterwards to bring the guilty to trial, the President would, under such circumstances, feel that a case was established that should be submitted to the consideration of Congress with a view to the relief of the families of the Italian subjects who had lost their lives by lawless violence. Accept, etc.,

JAMES G. BLAINE. To conclude the diplomatic history of this case the following extracts are given from official records, a in which an indemnity was offered and accepted.

Mr. Blaine to Marquis Imperiali.

DEPARTMENT OF STATE,

Washington, April 12, 1892. Sir: I congratulate you that the difficulty existing between the United States and Italy growing out of the lamentable massacre at New Orleans in March of last year is about to be terminated. The President, feeling that for such an injury there should be ample indemnity, instructs me to tender you 125,000 francs. The Italian Government will distribute this sum among the families of the victims.

While the injury was not inflicted directly by the United States, the President nevertheless feels that it is the solemn duty, as well as the great pleasure, of the National Government to pay a satisfactory indemnity.

JAMES G. BLAINE.

a United States Foreign Relations, 1891, pp. 727, 728.

Marquis Imperiali accepted the sum in behalf of the Italian Government in a letter of the same date in which he says, in part:

The King's Government does not hesitate to accept this indemnity without prejudice to the judicial steps which it may be proper for the parties to take, and, considering the redress obtained sufficient. .

CASE OF ANTONIO ABBAGNATO, AN ITALIAN SUBJECT.

(Vol. 62, Federal Reporter, p. 240. Case of City of New Orleans v. Abbagnato.

Decided May 29, 1894.)

of

Statement the case.

This action was brought by the mother of Antonio Abbagnato against the city of New Orleans for damages for the death of her son, who had been killed, with others, in March, 1891, by a mob which had broken into the parish jail without any adequate attempt at resistance on the part of the constituted authorities of the city. The victims had been tried before the criminal district court for the parish of New Orleans for the murder of the chief of police of New Orleans, and Abbagnato and five of the coaccused had been acquitted by the verdict of the jury, and mistrial had been found in the case of three others of the coaccused. Pending further legal proceedings all the coaccused, including those acquitted and those as to whom there had been a mistrial, were reincarcerated in the New Orleans parish prison, where they met their deaths at the hand of a mob, as stated above.

At the trial the jury found for the plaintiff, and judgment for the plaintiff was entered on the verdict. The defendant brought error. The case was heard before the Circuit Court of Appeals, Fifth Circuit.

Judge PARDEE delivered the opinion of the court, saying in part:

The treaty between the kingdom of Italy and the United same as those of States proclaimed November 23, 1871, guaranties to the

citizens of either nation in the territory of the other the

Rights of Italians by treaty

States

United citizens.

of

most constant protection and security for their persons and 'property," and further provides that “they 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 upon the natives.” Treaty of 1871, art. 3 (17 Stat. 845). This treaty applies to this case only so far as to require that the rights of the plaintiff shall be adjudicated and determined exactly the same as if she were, and her deceased son had been, a native of the United States.

The city of New Orleans, by her pleadings, admits the Liability gross negligence charged in the petition in the perform- damages for inance of the duties devolving upon the municipality under of a mob. the constitution and laws of the state above referred to, whereby Abbagnato lost his life at the hands of a mob while in the custody of the law; and the question presented in this case is whether, on such admission of facts, the city can be held liable in damages. It is well settled that at common law no civil action lies for injury to a person

which results in his death. . The rule is the same under the civil law, according to the decisions of the Louisiana supreme court. .. In the absence of a statute giving a remedy, public or municipal corporations are under no liability to pay for the property of individuals destroyed by mobs or riotous assemblages. . ..

In the case of State v. Mayor, etc., of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, the supreme court of the United States held that the right to demand reimbursement from a municipal corporation for damages caused by a mob is not founded on contract. It is a statutory right, and may be given or taken away at pleasure.

If this be the rule with regard to the liability of municipal corporations for damages to property committed by mobs or riotous assemblages, a fortiori it must be the rule with regard to the liability of municipal corporations for damages resulting in the loss of life from the acts of mobs or riotous assemblages. The reason of the rule is Reasons obvious. Actions to recover from municipal corporations damages resulting from the acts of mobs and riotous assemblages are actions to hold such corporations liable in damages for a failure to preserve the public peace. The preservation of the public peace primarily devolves upon the sovereign. Under our system of government, the state is that sovereign. U. S. v. Cruikshank, 92 U. S. 542-553; Western College v. City of Cleveland, 12 Ohio

for

rule.

Exemption of

St. 377. When, by the action of the state, a municipal corporation is charged with the preservation of the peace, and empowered to appoint police boards and other agencies to that end, the corporation pro tanto is charged with governmental functions in the public interest and for public purposes, and is entitled to the same immunity as the sovereign granting the power for negligence in preserving the public peace unless such liability is expressly declared by the sovereign. This proposition is so well recognized that not a well-considered, adjudicated case can be found in the books where, in the absence of an express statute, any municipality has been held liable for the neglect of its officers to preserve the peace. .

The exemption of municipalities from liability to suits municipalities recognized in for damages for the negligence of officers and agents in

the execution of the governmental functions granted by the state, in the public interest, and in the absence of statutory liability, is recognized in Louisiana, as shown by the decisions of the supreme court of the state. It follows, therefore, that in order to recover damages against the city of New Orleans for the taking of human life by a mob in said city, no matter what the negligence of the city officials may have been, there must be a statute of the state of Louisiana expressly or by necessary implication giving a remedy in such cases.

As we find no law of the state of Louisiana giving a remedy in damages against a municipal corporation for the acts done by a mob resulting in the loss of human life, we are c mpelled to reverse the judgment of the court below.

Louisiana.

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No damages.

ARREST OF DESERTERS UNDER FOREIGN FLAG IN

HOME JURISDICTION.

PROCEDURE RECOMMENDED.

In 1893 deserters from the U. S. S. Chicago were arrested on board the British steamer Berlin in the harbor of New York. As some of these deserters were enrolled on the articles of the vessel, and questions of identity, etc., might have arisen, it was deemed wise to have the arrest on board made by the local police instead of by naval officers direct.

This course was suggested by the British ambassador and adopted by the Department of State in its letter of advice to the Navy Department. As a matter of procedure it is desirable from many points of view to have such arrests made through the aid of local police.

AMERICAN CITIZENS EXILED FROM FOREIGN COUN

TRIES FOR CAUSE.

AS TO THEIR RIGHT TO REENTER WITHOUT PERMIS

SION.

gua.

The following quotation is from a letter to the Secretary of the Navy from the Secretary of State, dated July 15, 1899, respecting Americans who had been allowed to leave a foreign country in which they had been implicated in an insurrection. The position is taken that the American Government can not intervene in their behalf should they return to that foreign country and be recaptured:

Sir: I have the honor to acknowledge the receipt of Case of certain your letter of the 12th ultimo, inclosing a copy of one to zens in Nicarayou from Lieutenant-Commander Kimball, U. S. N., commanding officer of the Vixen, at Bluefields, in which he requests general instructions as to the policy of this Government respecting the protection of such American citizens as, having taken part in the recent insurrection at that place, were allowed to leave the country, but who may again return thither and be apprehended and prosecuted by the Nicaraguan authorities.

You request to be advised of the views of this Department on the subject.

In reply I have the honor to inform you that an instruc- , Instruction to tion, a copy of which is herewith inclosed, was sent to our San Juan del consul at San Juan del Norte on May 13 last, informing him that Americans who were implicated in that insurrection and who have returned to Nicaragua have placed themselves beyond the power of this Government to intervene in their behalf, should they be recaptured.

The cases thus foreshadowed do not come under either the Barrundia or the Gomez case, referred to by Lieutenant

2056-04-13

Norte.

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