privileges of English subjects, till the revolution. It is not therefore, perhaps, so accurate to say that they established the laws of England here, as to say, that they were subject to the laws of England. When they left one portion of its territory, they were alike subject, on their transit and when they arrived at another portion of the English territory; and therefore always, till the declaration of independence, they were governed and protected by the laws of England, so far as those laws were applicable to their state and condition. Under this category must come all municipal laws regulating and securing the rights of real and personal property, of person and personal liberty, of habitation, of reputation and character, and of peace. The laws designed for the protection of reputation and character, and to prevent private quarrels, affrays and breaches of peace, by punishing malicious libel, were as important and as applicable to the state and condition of the colonists as the law punishing violations of the rights of property, of person, or of habitation; that is, as laws for punishing larceny, assault and battery, or burglary. Being part of the common law of England, applicable to the state and condition of the colonists, they necessarily applied to all English subjects and territories, as well in America as in Great Britain, and so continued applicable till the declaration of independence.

This, therefore, would be evidence, a priori, that they were in force, and were adopted by the clause cited from the constitution, except so far as modified by the excepting clause.

That the law of libel existed, at the first migration of our ancestors, and during the whole period of the colonial and provincial governments, is proved by a series of unquestionable authorities; and we are now to inquire, whether by the acts done since the adoption of the constitution -acts of the judiciary and legislature-these laws, with some modification, have not been affirmed and declared in such a manner as to bring them within the provision of the constitution, and make them absolutely binding, until repealed by the legislature.

*

*

These declarations of the legislature, and the contemporary exposition of the constitution by the older judges, immediately after its adoption, together with an uninterrupted course of judicial practice to the present time, form a body of proof that the common law, making the publication of a malicious libel a criminal offence, has been adopted in this Commonwealth, entirely conclusive and irrefragable; and he must be a bold judge who should venture to decide that there is not now, and never has been, any such law, and that all the judgments which have been pronounced by the courts of this State, on convictions for this offence, have been erroneous.

Exceptions overruled.42

In

42 See Advocate-General v. Dossee, 2 Moore, P. C. (N. S.) 22 (1863), for the effect of the settlement of India and the introduction of English law. this case it was held that the English law, while applicable to English residents, did not, unless specifically extended to the natives, apply to them, and

SECTION 4.-RESPONSIBILITY 48

CITY OF NEW ORLEANS v. ABBAGNATO.

(Circuit Court of Appeals, Fifth Circuit, 1894. 62 Fed. 240, 10 C. C. A. 361, 26 L. R. A. 329.)

In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

This was an action by the widow of Antonio Abbagnato against the city of New Orleans for damages for the death of said Abbagnato. At the trial, the jury found a verdict of five thousand dollars for plaintiff, and judgment for plaintiff was entered on the verdict. Defendant brought error.

The petition set forth that Antonio Abbagnato was born in Italy; that he emigrated to the United States about 1884, and settled in New Orleans, where he was arrested in 1891, with twenty other persons, charged with the murder of the chief of police of New Orleans, which had recently occurred; that the trial resulted in the acquittal, on March 13, 1891, of Abbagnato and five of the accused and a mistrial of three others; that Abbagnato and the others were immediately lodged in jail pending further legal proceedings; that on the day following a mass meeting was held, at which inflammatory speeches were made; that a mob of some forty or fifty armed men broke into the jail; and that Abbagnato and ten other prisoners were killed, and Abbagnato and two others hanged to trees or lamp posts and riddled with bullets.

It was alleged by the defendant that Abbagnato was a naturalized American citizen, but some of the others were undoubtedly Italian subjects.

that therefore, suicide not being forbidden by Hindoo law, was not a crime in the natives, although it would be if committed by English residents.

See, also, First National Bank of Utah v. Kinner, 1 Utah, 100 (1873). describing the law in force in the territory of Utah, and the process by which it was introduced and became binding; McKennon v. Winn, 1 Okl. 327, 33 Pac. 582, 22 L. R. A. 501 (1893), holding that the common law was in force in the territory, but not the statute of frauds, as the statute was not part of the common law of England; Chappell v Jardine, 51 Conn. 64 (1884), for the effect of a mortgage upon property in Ram Island, after such island became a part of Connecticut.

Grants of land within a district made by a state exercising de facto sovereignty over the district, in the mistaken belief that the district is included within its boundaries as ascertained by compromise between the states are void. Coffee v. Groover, 123 U. S. 1, 8 Sup. Ct. 1, 31 L. Ed. 51 (1887), reversing same case as reported in 19 Fla. 61 (1882), and 20 Fla. 64 (1883).

43 "It is an established principle of international law that a nation is responsible for wrongs done by its citizens to the citizens of a friendly power. Ordinarily this responsibility is discharged by a government rendering to a resident alien the same protection which it affords to its own citizens and bringing the perpetrators to trial and punishment. This responsibility of a nation for the acts of its individual members is so well established and regulated by international law that it falls little short of being a natural right." Per Nott, C. J., in Jonathan Brown v. United States and the Brulé Sioux, 32 Ct. Cl. 432, 433 (1897).

The petition charged that the city authorities, including the mayor and police, were informed in advance of the action contemplated against the prisoners, but that they neglected their duty and failed to protect them against impending danger.

The petition further stated that Abbagnato was at the time of his death without wife or children, and that therefore his mother, an Italian subject residing in Italy, presented the claim for damages for his death."

PARDEE, Circuit Judge. The treaty between the kingdom of Italy and the United States proclaimed November 23, 1871, guarantees to the citizens of either nation in the territory of the other "the 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 citizen of the United States.

The Constitution of the state of Louisiana provides as follows: "The citizens of the city of New Orleans or any political corporation which may be created within its limits shall have the right of appointing the several public officers necessary for the administration of the police of said city, and pursuant to the mode of election which shall be provided by the General Assembly." Const. La. 1879, art. 253. "The maintenance and support of persons confined in the parish of Orleans upon charges or conviction for criminal offences shall be under the control of the city of New Orleans." Id. art. 147.

* * *

The charter of the city of New Orleans "creates all the inhabitants of the parish of Orleans, as now bounded by * * * as a body corporate, and establishes them as a political corporation by the name of the 'City of New Orleans,' with the following powers, and no more: It shall have a seal and may sue and be sued. * * * (Section 1.) The council shall have power, and it shall be their duty, to pass such ordinances, and to see to their faithful execution, as may be necessary. and proper to preserve the peace and good order of the city; to organize and provide an efficient police. * * * (Section 7.) The council shall also have power * to establish jails, houses of refuge and reformation and correction, and make regulations for their government, and to exercise a general police power in the city of New Orleans. (Section 8.) The mayor shall keep his office at the city hall; * * * shall see that the laws and ordinances within the limits of the city of New Orleans be properly executed; * * *

44 A shortened statement has been substituted for that of the original report.

shall be ex officio justice and conservator of the peace, tion 19.)" Acts 1882, No. 20, p. 14.

(Sec

The act of the Legislature of Louisiana (passed in 1888) creating the police board of the city of New Orleans preserves to the mayor of the city of New Orleans the power, as the commander in chief of the police force, to issue such orders as may be necessary and proper for the preservation of the peace in the city of New Orleans, and in said act it was declared that:

"It is hereby made the duty of the police force at all times of the day and night, and the members of such force are thereunto empowered, to especially preserve the public peace, to prevent crimes, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages which obstruct the free passage of public streets, sidewalks, squares and places, protect the rights of persons and property," etc. Acts 1888, No. 63, p. 64.

The city of New Orleans, by her pleadings, admits the gross negligence charged in the petition in the performance of the duties devolving upon the municipality under 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. Insurance Co. v. Brame, 95 U, S. 754–756, 24 L. Ed. 580; Dennick v. Railroad Co., 103 U. S. 11, 21, 26 L. Ed. 439; The Harrisburg, 119 U. S. 199-214, 7 Sup. Ct. 140, 30 L. Ed. 358. The rule is the same under the civil law, according to the decisions of the Louisiana Supreme Court. Hubgh v. Railroad Co., 6 La. Ann. 495; Hermann v. Railroad Co., 11 La. Ann. 5. 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. Add. Torts, 1305; Dill. Mun. Corp. § 959.

In the case of State v. Mayor, etc., of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, 27 L. Ed. 936, 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. In the same case, Mr. Justice Bradley, concurring, said:

"I concur in the judgment of this case, on the special ground that remedies against municipal bodies for damages caused by mobs or other violators of law, unconnected with the municipal government, are purely matters of legislative policy, depending on positive law, which may at any time be repealed or modified, either before or after the damage has occurred, and the repeal of which causes the remedy to cease. In giving or withholding remedies of this kind, it is simply a question whether the public shall or shall not indemnify those who

sustain losses from the unlawful acts or combinations of individuals; and whether it shall or shall not do so is a matter of legislative discretion, just as it is whether the public shall or shall not indemnify those who suffer losses at the hands of a public enemy, or from intestine commotions or rebellion."

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 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, 23 L. Ed. 588; Western College v. City of Cleveland, 12 Ohio 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. In the case of Western College v. City of Cleveland, supra, it was said:

"It is the duty of the state government to secure to the citizens of the state the peaceful enjoyment of their property and its protection from wrongful and violent acts. For the proper discharge of this duty, power is delegated in different modes. One of these is the establishment of municipal corporations. Powers and privileges are also conferred upon municipal corporations to be exercised for the benefit of the individuals of whom such corporations are composed, and, in connection with these powers and privileges, duties are sometimes specifically imposed. It is obvious that there is a distinction between those powers delegated to municipal corporations to preserve the peace and protect persons and property when they are to be exercised by legislation or the appointment of proper officers, and those powers and privileges which are to be exercised for the improvement of the property comprised within the limits of the corporation and its adaptation for the purposes of residence and business. As to the first, the municipal corporation represents the state; as to the second, the municipal corporation represents the pecuniary and proprietary interest of the individuals. As to the first, responsibility for acts done or