Mr. Adee to Signor Carignani.
Washington , October 10, 1901 .
Sir: I have the honor to acknowledge the receipt of your note of the 3d instant, with inclosed letter from M. J. Galligan, attorney for Mrs. Fenice Ferrara, relative to her complaint that she had been denied justice in the district court of Pueblo, Colo.
The Department has given careful consideration both to your note and its inclosure, but without being led thereby to alter the conclusion expressed in its note of August 24 that Mrs. Ferrara had not exhausted her judicial remedies and hence that there was no ground for the presentation of a diplomatic claim in her behalf.[Page 311]
Mr. Galligan states that when Mrs. Ferrara was denied the right to prosecute her action in the district court of the State her judicial remedy was practically exhausted; and he asserts, also, that she was, by her poverty, practically prevented from taking further proceedings.
The Department’s note of August 24 points out the particulars in which the plaintiff’ failed to avail herself of the judicial remedy afforded her when the district court denied the motion for a new trial.
The poverty of the plaintiff, which, it is alleged, prevented her from taking the necessary legal proceedings to establish her rights, affords no basis for a claim of a denial of justice.
It is a rule practiced not only by many American courts, but also by those of other civilized states, that the plaintiff shall, as a condition to the prosecution of his case, give a bond to secure the costs (caution judicatum solvi) he may thereby occasion. Such requirement can not be treated as a denial of free access to the courts, nor as a denial of justice giving ground for diplomatic intervention. Nor in any case could this Government be expected to perform the function of parens patriæ by providing even a meritorious foreign claimant with pecuniary aid which his own government might decline to afford. Much less could the United States be expected to pay outright this claim, considering that the Government was not in the remotest degree connected with the transaction out of which the claim arose, and that justice has not been judicially denied.
“The stranger, in all countries, is subject to the local law, as respects either the prosecution or defense of his case. In both aspects, he stands upon the same footing as the natives, save la caution judicatum solvi, very frequently imposed upon the alien plaintiff.” (2 Calvo, Int. Law, sec. 865.)
“Though the plaintiff foreigner be thus allowed to bring his suit, he is, by the laws of the States, compelled to give bail (fournir caution) for costs and damages.” (4 Phillimore, Int. Law, p. 643.)
While the Department has before enunciated its views in this case, it has been at pains to set forth fully in this note the grounds of its decision, which is so fully sustained by reason and authority, that it should be considered as final.