of an equality of rights was originally assumed by the States, and it remains there."

In 1886 one Baldwin, together with others, was charged with a conspiracy illegally to deprive certain Chinese subjects of equal privileges and immunities secured to them under existing treaties with China, and the case came before the Supreme Court under a writ of habeas corpus. The court sustained its ruling in the case of the United States against Harris (one of the series referred to, decided in 1882), saying that that case had been carefully considered at the time and that subsequent reflection had not changed its opinion as therein expressed. The court decided in the case before it that "the offense of the defendants was exerted against the Chinese people, and not against the government in its efforts to protect them." In his dissenting opinion Mr. Justice Field deplored, as the result of the decision, that "no national law exists which can be invoked for the protection of the subjects of China in their right to reside and do business in this country, and that the same result must follow with reference to similar rights and privileges of the subjects or citizens of other nations with which we have like treaty stipulations," and declared that "the only protection against any forcible resistance to the execution of these treaty stipulations in their favor is to be found in the laws of the different States." But the fact remains that the treaties are made expressly binding by the Constitution upon all State judges, anything in the Constitution or laws of any State to the contrary notwithstanding; and when absolute failure of justice can be shown to have arisen from the action or non-action of the State tribunals, then, and not until then, it will be proper for the Executive to consider whether Congress should not indemnify the injured parties by reason of the failure of this government to execute, substantially and in good faith, the compact entered into with a foreign nation. As the measure of justice and protection stipulated for in the treaty is to be the same in the case of foreigners as in the case of citizens and natives of this country, it is difficult to see a cause of complaint when the cases of both are submitted to the same tribunals for decision.

The principles of law and justice, as administered in the

courts of the United States and in the courts of the several States, are derived from the same sources, and both are founded upon those rules of justice which are recognized in all civilized countries. The decisions of those courts are mutually cited as authority in either and in both. It may be said of the judges who preside over them and of the juries who try in them, in the words of Chief Justice Taney in the case of Crandall against Nevada: "For all the great purposes for which the federal government was established, they are one people, with one common country; they are all citizens of the United States."

The federal judges not infrequently have distinguished themselves by prior service in the State courts; the personnel of the bar is the same in both jurisdictions; the juries are drawn at large from the same communities, possess the same qualifications, and not uncommonly serve alternately in either court. The foreigner in our country who seeks redress for his private injuries has the advantage over our native citizen of electing in which jurisdiction-State or federal-he will pursue his remedy. It is difficult, therefore, tried by any test or fact or law, to discover wherein there is any defect in the execution by the United States of its stipulations with foreign nations to give to their citizens or subjects the equality of rights and privileges secured to our own citizens.

I have referred to the case of Tunstall, the correspondence in regard to which was closed by a letter addressed in June, 1885, by the Secretary of State to the British Minister at Washington. J. P. Tunstall was a British subject domiciled in New Mexico, where he was carrying on business. He was murdered in the year 1878, and an investigation by a special agent of the Department of Justice disclosed that three persons witnessed the murder, and that two of the three committed it. Two of these three were afterward killed, and there was no knowledge that the survivor had ever been brought to justice for his complicity. In 1880 Sir Edward Thornton presented, under instruction of his government, a claim on behalf of the father of Mr. Tunstall for such compensation as, upon examination of the injury and losses, should be found to meet the justice of the case. The liability of the United States was not admitted by Mr. Evarts, then Secre

tary of State, nor by Mr. Blaine, his successor, nor by Mr. Frelinghuysen; but the last-named secretary suggested to the British Minister, in 1882, to refer the claim of Tunstall, under the authorization of Congress, to the Court of Claims or other judicial resort. The suggestion was rejected by Her Majesty's government because the proposed adjudication would not be based upon a prior admission of the liability of the United States in the premises, subject to an establishment of the facts after judicial inquiry. Upon a revival of the demand in April, 1885, the position of the United States in respect to such claims was fully stated by the Secretary of State, and it will be found at length in the volume of "Foreign Relations" for that year. The similarity of our institutions and laws with those of Great Britain was stated with numerous illustrations, and the annals of English jurisprudence were referred to as thoroughly sustaining the position taken on behalf of the government of the United States.

I can do no better than to transcribe from that correspondence the following paragraphs:

"Appealing to principles acknowledged in common in England and in the United States, it is maintained that in countries subject to the English common law, where there is the opportunity given of a prompt trial by a jury of the vicinage, damages inflicted on foreigners on the soil of such countries must be redressed through the instrumentality of courts of justice and are not the subject of diplomatic intervention of the sovereign of the injured party. . . . Prior to the occurrences now under consideration, there must have been many cases in which British subjects supposed that they had suffered loss through the negligence or the malice of subordinate officers of the different States and Territories composing this Union, but no record can be found, at least on the files of this department, of cases in which, when redress could be had by appeal to local courts of justice, an attempt has been made to substitute for such redress a demand upon the government of the United States for pecuniary compensation. The same may be said of the many cases in which citizens of the United States may have suffered, or claim to have suffered, injury in Great Britain from the conduct of British officials. When such injury was inflicted upon the high seas, or in foreign uncivilized lands, and especially if inflicted by the armed military or naval power directly emanating from the sovereign executive, then it was properly regarded as the subject of diplomatic intervention; but a careful search in the records of this department discloses no diplomatic appeal for pecuniary compensation for injuries claimed to have been inflicted on American citizens when on the soil of Great Britain."

"The practical result of this fair dealing is even more marked in this

country than in England. There are reported in our books multitudes of cases in which local officers of justice have been sued by foreigners in our courts for false imprisonment, or for malicious prosecution, or for assault, and this must needs be the case in communities like ours, in which a large proportion of the population consists of foreigners unfamiliar with our laws. In not one of these cases, however, has it ever been maintained that the foreign plaintiff had not at least the same privileges awarded to him as he would have had if he had been a native citizen, nor can the most jealous scrutiny of the proceedings show in a single case any misstatement of law to his disfavor. The first instance, in fact, in which, instead of an appeal to the courts thus open, diplomatic intervention through a sovereign is urged, is that which we now have to discuss."

"To accept the position of the British government in this matter would, moreover, lead to utter confusion in the constituted arrangements of our system, which, like that of England, sedulously maintains the executive, judicial, and legislative departments distinct from each other. The claim now put forward, if allowed, would usurp judicial functions by the executive and legislative branches, and would substitute a government of will for a government of law. Private loss and injury ensue from temporary disorders and breaches of the peace under any government."

In 1878, 3,000 loaded railway cars were destroyed by a mob at Pittsburg, Pennsylvania. This property must have belonged to a variety of persons, probably of different nationalities, but no one who lost his property nor the relatives of any who lost his life (and many lives were lost) ever pretended to hold the United States government responsible.

The

In March, 1884, the city of Cincinnati was for three days the scene of arson, pillage, and bloodshed. In the riot forty-five persons were killed and a greater number were wounded. county court-house and the valuable records it contained were burned, the jail was wrecked, and a government of laws was temporarily laid prostrate. That among those killed were foreigners is well ascertained, yet no suggestion of indemnity was ever made by a foreign government. To quote again from the corre spondence:

"Under no aspect of the case is there any right under our law to redress such injuries as Mr. Tunstall suffered which is not as open to a foreigner lawfully within the United States as to any one of our own citizens. There is no discrimination between them. . . . 'The state,' says Sir R. Phillimore (International Law,' II., 4) must be satisfied that its citizen has exhausted the means of legal redress offered by the tribunals of the country in which he has been injured. If these tribunals are unable or unwilling to

enter energetically upon his grievence, the ground for interference is properly laid; but it behooves the interfering state to take the utmost carefirst, that the commission of the wrong be clearly established; secondly, that the denial of the local tribunals to decide the question at issue be not less clearly established. It is only after these propositions have been irrefragably proven that the state of a foreigner can demand reparation at the hands of the government of his country.'

And this position, as was pointed out, was sustained by Chief Justice Waite in the case of New Hampshire against Louisiana as follows:*

"No principle of international law makes it the duty of a nation to assume the collection of the claims of its citizens against another nation if the citizens themselves have ample means of redress without the intervention of their government. Indeed, Sir Robert Phillimore says in his 'Commentaries on International Law,' Vol. II., page 12, ‘As a general rule the proposition of Martens seems to be correct, that the foreigner can only claim to be put on the same footing as the native creditor of the state."" Finally, upon a full review, the liability of the United States, either directly toward the representatives of the murdered man or internationally toward Her Majesty's government, was denied.

In the case that gave rise to the Chinese demand, 28 of their countrymen were killed outright, 15 wounded, and many more driven from their homes, which were pillaged or destroyed by a band of riotous individuals at Rock Springs, in Wyoming Territory. An article of the Chinese treaty provides that "Chinese subjects, visiting or residing in the United States, shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation." To this demand, reply was made that it had been ascertained that the assailants consisted of a lawless band of armed men-discontented mining laborers who had previously sought to induce the Chinese to join with them in a concerted strike for higher wages, and who had become angered by the rejection of their overtures. This was the only motive. discernable for the assault, or alleged in the reported evidence. On neither side, among assailants or assailed, was there any representative of the government of China, or of that of the United States, or of that of the Territory of Wyoming. There was,

* 108 U. S. Reports, page 90.