Mr. Adee to Mr.
Fearn.
Department
of State,
Washington, September 19,
1889.
No. 77.]
Sir: Your No. 168, Diplomatic Series, of the 20th
February last, in relation to American joint stock companies in Greece, was
received at this Department on the 16th of the following month. In that
dispatch you stated that the Greek minister for foreign affairs in an
interview with you had expressed the opinion that the Hellenic Government
could not regard the first article of the treaty between the United States
and Greece of December 22, 1837, as applicable to joint stock companies and
other business associations whose status in Greece in the cases of Great
Britain and Austria-Hungary had been determined by special agreement between
the respective Governments.
That article provides as follows:
The citizens and subjects of the two contracting parties may with all
security for their persons, vessels, and cargoes, freely enter the
ports, places, and rivers of the territories of the other wherever
foreign commerce is permitted. They shall be at liberty to sojourn
and reside in all parts whatsoever of said territories; to rent and
occupy houses and warehouses for their commerce; and they shall
enjoy generally the most entire security and protection in their
mercantile transactions on condition of their submitting to the laws
and ordinances of the respective countries.
On the 2d of April last a copy of your dispatch was submitted to the
Attorney-General, with a request for his opinion whether there would be any
objection to this Department instructing you to give the Hellenic Government
an assurance in the form of a simple declaration that corporations, joint
stock companies, and other associations, commercial and industrial,
constituted in conformity with the laws in force in Greece, may exercise in
the United States all their rights, including that of appearing before
tribunals for the purpose of bringing an action, or of defending themselves,
with the sole condition in exercising such rights of always conforming to
the laws and customs in force in this country.
On the 10th of May last the Department received from the Attorney-General his
opinion as requested, a copy of which is herewith inclosed. The purport of
his opinion is that corporations, and associations, such as are described in
your dispatch, are, if duly authorized under the laws of Greece, entitled to
lawful rights and remedies in the United States, and that there is no
objection to this Department communicating assurance to that effect to the
Hellenic Government, it being of course always understood, as expressed in
the treaty, that these rights and remedies are to be enjoyed, subject to the
appropriate laws of the United States and of the several States.
Since the exercise of those rights and remedies may be enjoyed by
corporations and associations of Greece under the Constitution and laws of
the United States, taken in connection with the treaty above referred to, it
is not thought to be necessary that a specific agreement to continue for a
certain time and to be terminable upon a certain notice should be entered
into with the Hellenic minister of foreign affairs. It is thought that a
proper precedent for the present case may be found in the protocol of
conferences and declarations concerning judicial procedure, signed at Madrid
on the 12th of January, 1877, by the minister of the United States and the
minister of state of His Majesty the King of Spain. This being so, all that
would be necessary would be to formulate a protocol setting forth that in
view of the desire of the Government of the United States and of that of His
Hellenic Majesty to effect a reciprocal understanding in regard to the
[Page 482]
rights and remedies of
corporations and associations organized under the laws of one of the
countries in the territories of the other, the minister of the United States
declares that joint-stock companies and other associations commercial,
industrial, and financial, constituted in conformity with the laws in force
in Greece, may exercise in the United States the rights and privileges of
subjects of Greece under Article I of the treaty of commerce and navigation
between the Government of the United States and that of His Hellenic
Majesty, concluded in London on the 10th–22d of December, 1837, including
the right of appearing before tribunals for the purpose of bringing an
action or defending themselves, with the sole condition that in exercising
those rights they always conform themselves to the laws and customs existing
in the United States and in the several States. The Hellenic minister for
foreign affairs could then make a reciprocal declaration containing a
satisfactory assurance that similar rights and privileges shall be enjoyed
by American corporations and business associations in Greece, whether now or
heretofore organized or to be created in the future.
I am, etc.,
[Inclosure in No. 77.]
Mr. Miller to Mr.
Blaine.
Department of Justice,
Washington, May 10,
1889.
Sir: By your letter of the 2d of April, 1889,
you submit the following inquiry:
“Whether, in your opinion, there would be any objection to this
Department instructing the minister of the United States at Athens to
give the Hellenic Government an assurance * * * that corporations,
joint-stock companies, and other associations, commercial and
industrial, constituted in conformity with the laws in force in Greece,
may exercise in the United States all their rights, including that of
appearing before tribunals for the purpose of bringing an action or
defending themselves, with the sole condition in exercising such rights
of always conforming to the laws and customs in force in this country.”
The first article of the treaty of the 22d of December, 1837, between
the United States and Greece provides:
“The citizens and subjects of each of the two high contracting parties
may, with all security for their persons, vessels, and cargoes, freely
enter the ports, places, and rivers of the territories of the other
wherever foreign commerce is permitted. They shall be at liberty to
sojourn and reside in all parts whatsoever of such territories; to rent
and occupy houses and warehouses for their commerce, and they shall
enjoy generally the most entire security and protection in their
mercantile transactions, on condition of their submitting to the laws
and ordinances of the respective countries.”
By virtue of the provisions of the sixth article of the Constitution of
the United States this treaty became a part of the supreme law of the
land, and is obligatory as such in every court, both National and State.
Whatever rights the treaty grants are guarantied to the subjects of
Greece with all the force of law.
The second section of the third article of the Constitution declares the
judicial power of the United States “shall extend to all cases, in law
and equity, arising under this Constitution, the laws of the United
States, and treaties made, or which shall be made, under their authority
* * * between a State, or the citizens thereof, and foreign States,
citizens or subjects.”
This section is enforced by proper legislation. Both the right and the
remedy are thus assured to Grecian subjects. The word “subjects” in the
Constitution is used as descriptive of those who owe perpetual
allegiance to a Government monarchical in form, as the word “citizens”
is used to describe those who owe perpetual allegiance to our own
Government or other republics. The word “citizens” in the Constitution
has been interpreted by the courts to include corporations and
associations such as are described in your letter. The word “subjects”
is entitled to a like interpretation, so as to include like foreign
corporations and associations. The protection and guarantee to
corporations, as citizens, of their lawful rights and remedies, has been
carefully considered, and frequently affirmed, by the Supreme Court of
the United States.
[Page 483]
In the case of the Louisville Railway Company vs.
Letson (2 How., 558) the law is thus declared:
“A corporation created by, and doing business in, a particular State is
to be deemed to all intents and purposes as a person, although an
artificial person, and inhabitant of the same State, for the purposes of
its incorporation, capable of being treated as a citizen of that State,
as much as a natural person. Like a citizen it makes contracts, and
though, in regard to what it may do in some particulars, it differs from
a natural person, and in this especially, the manner in which it can sue
and be sued, it is substantially within the meaning of the law a citizen
of the State which created it, and where its business is done, for all
the purposes of suing and being sued.”
In the case of the Ohio and Mississippi Railroad Company vs. Wheeler (1 Black., 296) the court, citing the
above case with approval, declared the principle settled, in the
following language:
“That where a corporation is created by the laws of a State the legal
presumption is that its members are citizens of the State in which alone
the corporate body has a legal existence; and that a suit by or against
a corporation, in its corporate name, must be presumed to be a suit by
or against citizens of the State which created the corporate body, and
that no averment or evidence to the contrary is admissible for the
purposes of withdrawing the suit from the jurisdiction of a court of the
United States.”
The same doctrine is maintained in the cases of Marshall vs. The Baltimore and Ohio Railroad Company (16
How., 329); Covington Draw-bridge Company vs.
Shepherd (20 How., 233), and Cowles vs. Mercer
County (7 Wall., 121).
The word “subjects” in the treaty embraces such corporations and
associations as are described in your communication, and in the courts
of the United States their legal rights, as defined and limited by the
laws of the United States and of the several States, are fully protected
by adequate remedies. There is, therefore, no legal objection to your
communicating to the minister of the United States at Athens such
instructions as are suggested in your letter, with the qualification
which is annexed as a condition to the first article of the treaty, that
the rights and remedies of such corporations and associations are to be
enjoyed subject to the appropriate laws of the United States and the
laws of the several States.
I am, etc.,
W. H. H. Miller,
Attorney-General.
