INTERNATIONAL RESPONSIBILITY TO CORPORATE

BODIES FOR LIVES LOST BY OUTLAWRY

A novel case has recently arisen involving the liability of a foreign government to indemnify an American corporation (a missionary board) for the death of its employees by mob violence. The case grew out of the assault in 1905 of a mob of native Chinese upon the American Protestant Mission Station at Lienchou, province of Quantung, China, resulting in the death of four missionaries and one child.

The Chinese local authorities were exonerated by the surviving missionaries from any complicity with the rioters, prompt punishment by decapitation and imprisonment was inflicted on the leaders of the mob, and payment was made by the Chinese authorities for all the property losses sustained. The board, whose office is in New York City, announced to the churches of its denomination, on receipt of the news of the massacre, that

in no case whatever would the board receive indemnity for the beloved dead, nor would it accept indemnity of a punitive character, the board holding that the value of the blood of those who laid down their lives for Christ's sake should not be estimated in dollars and cents.

A notice of this action was sent by the board to the Chinese Minister in Washington, and by him communicated to his government at Peking and to the viceroy of the province in which the massacre occurred.

When the final payment on the property losses came to be made in the province, the viceroy was notified by the American consul that claims had been filed in the Department of State at Washington by relatives of the deceased missionaries for a large money compensation for their lives. The Chinese authorities, including the viceroy of the province and the minister in Washington, at once expressed their surprise at this claim, in view of the public announcement of the board, which was understood by them to be a voluntary waiver of all claims for loss of life. The answer of the board was that while the action of the relatives was a surprise to it, made without its knowledge or approval, in its announcement it did not purport to speak for the rela

tives, over whom it had no control, and that it thereby only waived its own claim of indemnity for the loss of life of its missionaries, but that it would not be a party to any efforts to secure indemnity for the lives of the missionaries.

The foregoing action and views of the board were communicated by its secretary to the Department of State, and the department made the following reply:

As it is difficult to conceive upon what grounds the mission board could have based a claim so as to enable it to receive any benefit from any sums that might be paid on account of the murder of those people, your board's disclaimer would seem to have been meaningless. This, however, may not be understood by the Chinese government, and may tend to embarrass this government in its determination to demand damages from China for the unlawful killing of American citizens, which demand arises as a matter of public policy, irrespective of the associations which such citizens may have had with any missionary body, and irrespective of any views as to the desirability or propriety of such demand that may be held by third parties.

In this connection it may be well to notice the attitude of the government of the United States in the case of the loss of life of American citizens in foreign lands by mob violence and outlawry. For our present purpose it will suffice to examine the treatment of a few of such cases occurring in the neighboring republic of Mexico which, like China, has in the past been subject to considerable civil disorder. Taking them in chronological order: in 1868, John Braniff, an American citizen was killed by a band of robbers while at work on the Vera Cruz railroad. The American chargé reported to the Department of State that the Mexican government had given assurance that every possible effort would be made to detect and punish the guilty parties. Secretary Seward replied:

The engagement which the Mexican government has made to investigate the case, and its assurance that upon such investigation the government will direct what justice may require, is entirely satisfactory.1

In 1874, Rev. David Watkins, a missionary of the American board of missions, was assassinated in one of the interior towns of Mexico by a body of some two hundred religious fanatics, his body horribly mutilated, and his house plundered. It was stated that the prison guard and the soldiers participated in the outrage. The Mexican

government took prompt and energetic measures for the punishment of the guilty parties. On receipt of a report of the event, Secretary Fish wrote the American minister as follows:

This atrocious act appears to have created a marked sensation in this country. A prompt and thorough trial of the case, and the punishment of those found guilty according to law, will be expected. The immediate friends of the victims at least may expect that the Mexican government will indemnify his widow and children, should he have left either, for their loss, especially if any persons in the service of that government should have taken part in the murder, or should have neglected to adopt measures toward preventing it. Upon this point, however, the Department will give further instructions when the result of the judicial proceedings shall be known.

The action of the authorities resulted in the conviction of the leaders of the mob, five of whom were condemned to death, and a number of others were sentenced to terms of imprisonment. After some delay, necessitated by an appeal to the Federal Supreme Court, all the sentences were carried into effect. It does not appear that any demand for a money indemnity was ever made upon the Mexican government." Another religious riot occurred at Acapulco, Mexico, in 1875, in the assault upon a Presbyterian chapel which resulted in the killing of a number of native Protestants and one American citizen. In making reply to the report of the minister on the occurrence, Secretary Fish said:

Such an incident is not uncommon to propagandism in regions where the doctrines sought to be disseminated may be new and consequently more or less unpalatable. Martyrs must be expected at such times. It is much to be deplored that a citizen of the United States should have been one of the victims. The promptness and energy with which you applied to the Mexican government in the matter, are to be commended. There is cause to fear, however, that we cannot judiciously require from them a pecuniary compensation for the relief of the wife and children of the murdered man, unless we can show that the killing was occasioned by an act or omission of a person in authority at Acapulco. Governments are not usually accountable in pecuniary damages for homicide by individuals. All that can fairly be expected of them is that they should in good faith, to the extent of their power, prosecute the offenders according to law.3

The consul at Acapulco reported that public sentiment was so strongly on the side of the rioters that the judicial authorities failed

2 For. Rel., 1874, pp. 734, 737; 1876, p. 386.

36 Moore's Int. Law Digest, 815.

to act, and no punishment followed the outrage. Neither did the government of the United States see proper to make any pecuniary demand for the life of the murdered American citizen. A number of other cases might be cited where American citizens have lost their lives by outlaws, without any compensation being demanded or obtained. In one of those cases, Secretary Gresham, in reply to an application by relatives for an indemnity, said:

The Mexican authorities promptly apprehended the murderers, and the Department understands that they were tried, convicted, and punished. Under these circumstances it is not believed that any claim for damages could be maintained."

The case of Baldwin was of a somewhat different character. He was murdered in Mexico in 1887 by two well-known bandit leaders, who had committed other murders, including a Mexican official of the locality. Ten days after Baldwin's murder, the inhabitants of the district pursued and killed five of the bandits, including the two murderers of Baldwin. The government of the United States made a demand on behalf of the widow for pecuniary damages, on the ground that the Mexican government was negligent in not suppressing the outlawry which had become notorious and in failing to punish the bandits. The latter government cited the attitude of the United States respecting the New Orleans and Chinese riots, and insisted that American citizens in Mexico could only claim the same measure of protection that was extended to natives. The discussion continued through several years. In 1892 it was suggested that, in view of the dependent situation of the widow and of the action of the United States in similar disputed cases as to responsibility, a settlement might be reached without prejudgment on the legal aspects of the claim. Whereupon, Mexico in 1894, paid to the United States for the benefit of the widow, $20,000, the payment being made and accepted

as a matter of simple equity, without implying any admission that in the case in question the Mexican government was, strictly speaking, responsible, and that it is not to constitute a precedent for the future. treatment of similar cases; and President Cleveland referred to it in his message to Congress as "a gracious act" on the part of Mexico."

No case has been found where the United States has assumed the presentation of a pecuniary claim of a mission board or other corpor6 Moore's Digest, 806.

56 Moore's Digest, 801.

ation for the life of one of its employees through the neglect or want of due protection of a foreign government. The Mexican cases cited are valuable as showing that, even conceding the claim of a pecuniary interest of a mission board in its employees, there was in the Lienchou, China, affair no basis upon which the board in question could found a claim for the lives lost, because it was not shown (to use the language of Secretary Fish), "that the killing was occasioned by an act or omission of a person in authority," and (in the language of Secretary Gresham), "the authorities promptly apprehended the murderers, and * * *they were tried, convicted and punished."

More than a year after the Lienchou riot, and upon a full examination of the questions involved, the following conclusion was announced: The board holds that whatever may be the legal technicalities involved, it has large financial interests in the missionaries whom it sends out and upon whom its work depends, that the murder of those missionaries involves the board in heavy financial loss, and that if the board should elect to demand indemnity for such loss, our government should recognize the equity of its contention. The board voluntarily waived its claim in the case of the massacre at Lienchou, but it insists that in doing so it waived a right which it could have justly insisted upon.

Let us examine this position a little more fully. The board in question owes its legal existence to the incorporation acts of the State of New York. Under the common law the death of a human being is not the ground of an action for damages, and no compensation therefor or for any resulting loss is recoverable. This rule of law, however, has been modified in most of the states of the Union, including New York, by statutory enactments, but these acts are to be strictly construed. The Code of Civil Procedure of the State of New York authorizes a suit to be maintained for the benefit of a husband, wife or next of kin, to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused; the damages received are exclusively for the benefit of the husband, wife or next of kin; and the damages are to be awarded on a fair and just compensation for the pecuniary injuries resulting to the person for whose benefit the action is brought.'

It must be clear that a mission board or other corporate body, deriving its authority from the state of New York, cannot maintain an

4 Sutherland on Damages, chap. 37, ed. 1903; 2 Sedgwick on Damages, chap. 18, ed. 1891.

'New York Code of Civil Procedure, §§ 1902, 3 and 4.