Mr. Hay to Signor Carignani.
Washington , August, 1901 .
Sir: I have the honor to acknowledge the receipt of your note of the 16th instant presenting for the consideration of this Government the complaint of the Italian subject, Mrs. Fenice Ferrara, that she has been denied justice in the district court of Pueblo, Colo.
In reply, I have the honor to say that it appears from the transcript of the record of judicial proceedings transmitted by you that Pietro Ferrara, an Italian subject, an employee of the Auric Mining Company, a corporation of the State of Colorado, while working in a mine belonging to said company near Henson, Colo., on June 26, 1897, was injured by the falling of a large rock from the roof of the mine, and died shortly thereafter. The widow of the deceased brought an action against the mining company in the district court of the county of Hinsdale, to recover damages for the death of her husband, on the ground that the same was due to the negligence of the company. She claimed damages in the sum of $5,000. By agreement of the parties a change of venue was had to the district court of the county of Pueblo. In the course of the proceedings a motion was made by the defendant that the case be dismissed on the ground that the plaintiff was a nonresident alien and not entitled to prosecute the action in any of the courts of Colorado. The court granted this motion and rendered judgment dismissing the case on May 6 last. The plaintiff, through her attorney, excepted and gave notice of an appeal to the court of appeals (supreme court) of Colorado. The appeal was granted upon condition that the plaintiff files an appeal bond. It [Page 309] appears that the plaintiff did not perfect the appeal, however, but instead, on May 11, filed a motion for a new trial in the same court, one of the grounds of such motion being that the judgment was in violation of the treaty of 1871 between the United States and Italy, the pertinent portions of which are as follows:
- ‘“Article III. The citizens of each of the high contracting parties shall receive, in the States and Territories of the other, the most constant protection and security for their persons and property, and 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. * * *
- “Article XXIII. The citizens of either party shall have free access to the courts of justice in order to maintain and defend their own rights, without any other conditions, restrictions, or taxes than such as are imposed upon the natives; they shall, therefore, be free to employ, in defense of their rights, such advocates, solicitors, notaries, agents, and factors, as they may judge proper in all their trials at law; and such citizens or agents shall have free opportunity to be present at the decisions and sentences of the tribunals in all cases which may concern them; and likewise at the taking of all examinations and evidences which may be exhibited in the said trials.”
On June 29 last the court denied the plaintiff’s motion for a new trial.
The plaintiff, through her attorneys, appeals to the Italian Government to make demand upon the Government of the United States for the sum of $5,000, “for which,” they allege, “she was deprived the right of litigation in violation of the said treaty between the two countries, and such other or further sum as may be just and equitable for the affront and indignity which she received by being thus discriminated against.”
You submit the matter to this Department for such measures as the Federal Government may see fit to take.
In the opinion of the Department the case, in its present stage, is not one for diplomatic intervention, for the reason that the plaintiff has not exhausted her judicial remedy. It frequently happens that litigants are denied rights by the decisions of inferior courts and are obliged, in order to establish such rights, to carry the case to the courts of last resort.
The plaintiff in the present case should pursue the judicial remedy afforded by our laws, perfecting her appeal to the court of appeals (the supreme court) of Colorado, and, if necessary thereafter, by appropriate proceedings, bring the case before the Supreme Court of the United States.
Furthermore, under the laws of the United States, the circuit courts of the United States have original jurisdiction of civil suits like the present one to which an alien is a party. It is suggested for the consideration of the attorneys of the plaintiff whether an original suit should not be brought in the circuit court of the United States for the district of Colorado.
Until the remedy of recourse to the civil tribunals has been exhausted by the plaintiff and justice is finally denied her, there appears to be no ground for the presentation of a diplomatic claim.
The inclosures in your note are returned as requested.