Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1907, (In two parts), Part II

File No. 6580/–3.

Ambassador Griscom to the Secretary of State.

American Embassy,
Rome, April 29, 1907.

No. 53.]

Sir: I have the honor to send you herewith inclosed a copy, together with a translation, of a decision of some interest by the supreme court of cassation of Rome in a case which arose between Mr. de Castro, consul-general of the United States, and a Mrs. Rebecca Dawes Rose. The circumstances were in brief as follows:

In November, 1904, an American citizen, Mrs. G. I. Johnson, of Cleveland, Ohio, died of pneumonia at Mrs. Dawes Rose’s boarding house in the city of Rome, and as Mrs. Johnson’s only heirs then in Rome left the city a few days after her death the consul-general assumed the administration of the estate. In the course of settling the claims against the estate the consul-general paid to Mrs. Dawes Rose an item of lire 184, for disinfection of the premises occupied by Mrs. Johnson. Having subsequently been informed that such disinfection was not obligatory and was not prescribed by the sanitary regulations of Rome, and that when disinfection is required it is done by the sanitary authorities at a nominal cost, the consul-general requested Mrs. Dawes Rose to refund the sum of lire 184 which he had paid her. She refused to comply with the request, and he thereupon cited her before the pretore of the third district of Rome. Without entering into the merits of the case, the pretore held that Mr. de Castro had not acted as consul-general of the United States, but merely as a private agent or attorney of the Johnson heirs. The case was taken before the civil tribunal of Rome and the pretore’s judgment was upheld, and the consul-general was ordered to pay the costs. The consul-general thereupon refused to comply with the judgment of the court directing him to pay the costs. At this point in the case the matter was brought to the attention of my predecessor, Mr. White, with a view through his intervention to secure an amicable settlement and to prevent an execution by the court upon the private effects of the consul-general. I inclose for your information a copy of the statement of the case, prepared by the consul-general for Mr. White, and a letter addressed by Mr. White to the consul-general on September 3, 1906. Mr. White was able to arrange with the minister for foreign affairs that no action should be taken by the lawyers of Mrs. Dawes Rose on the writ of execution until the judgment of the court of cassation, to which the case had been appealed, should be rendered.

The judgment of the court of cassation was rendered on the 4th of February last. After reciting the facts the court of cassation takes up the finding of the lower court and “on the first count observes: That the judgment in appeal held that De Castro when he paid Mrs. Rose the 184 lire did not act as consul-general, but as agent of the Johnson heirs, and stated that the agency being void De Castro had no right of action. But the tribunal forgot to state the reasons for which it affirmed the existence of a supposed agency, nor did it give any which in its opinion deprived De Castro from his character of consul when he acted in the interest of the Johnson estate in the absence of the heirs. The tribunal only said that in order to retain his official capacity it was not enough that he should have written on official paper bearing the consular heading and signed with his own due qualification, but the tribunal was not able to designate what other acts, forms, or signs should have been necessary in order that his diplomatic qualification be considered as superseding that of any private individual in making his demand and in his asked for intervention in the affairs of the Johnson estate. It was necessary to bear in mind that Mrs. Johnson died intestate and that her heirs were not only her two children present at her death, but also the husband and two other children absent from Rome, and also that the former left Rome two days after the death.

“The judgment is therefore defective for the two reasons above stated.

“Upon the second finding the court observes: That the tribunal has erroneously defined the capacity of Consul de Castro declaring him a private attorney. The American consul paid the amount not due to Mrs. Rose when none of the Johnson heirs were in Rome (that is, two days after their departure) and the consul paid as consul representing the Johnson estate; he paid as administrator of affairs and not as an attorney of private individuals or as a private individual, not as a third party, but as the true and legitimate representative of the persons interested by virtue of the capacity inherent to his consular office; therefore as such and as gestor negotiorum recognized by the conventions, he paid 184 lire not due to Mrs. Dawes. He holds, therefore, the conditio indebiti—and even though at the time of their departure two of the five Johnson heirs told Mrs. Dawes that she might apply to the consul for the settlement of her claims, they did not by that appoint De Castro as their private attorney, but as the legal representative of the estate—and as such, indeed, he intervened, and it is not presumable that he divested himself of his quality precisely when he had to carry out acts inherent to his legal functions and comprised in the sphere of his office.

“In regard to the third finding it is observed that the fundamental error of the judgment lies in having denied that the consul-general had, by virtue of the law and the treaties, the power to bring before an Italian magistrate, and without special power from the heirs, an action for the recovery of an undue payment interesting the estate, said action being directed to reestablish the integrity of the estate as it was left.

“The judgment miscomprehended the consular convention established between the United States of America and Italy in 1878, securing for the contracting parties the treatment of the most-favored nation and empowering by right the consuls to represent judicially in certain cases the estates of their respective citizens, whether one considers France by her convention of July 26, 1862, or Russia by her convention of April, 1875, to be the most-favored nation. It is a fact that by virtue of article 9 the powers of the consuls are established as follows: (a) To place and remove seals; (b) to prepare inventories; (c) sell perishable goods; (d) to care for and deposit funds and incomes of the estate; (e) to ascertain, to collect, and to settle claims; (f) to administer and to represent also judicially the estate; and to this effect the convention adds:

In all questions arising from the publication, administration, and liquidation of estates of citizens of one of the two countries in the other the respective consul-generals, consuls, and vice-consuls will represent by full right the heirs and shall be recognized officially as their attorneys without being obliged to justify their mandate by a special power.

They may consequently appear in person or by attorneys, chosen among such as are so authorized by the legislation of the country, before the competent authorities, to take charge in every case concerning the estate, of the interests of the heirs, by prosecuting their rights or answering the claims against them.

“From these words the understanding clearly arises that when the succession of a foreigner is opened in Italy it is the consular representative of the foreign nation itself who undertakes for him to do everything, and not only to administer his property but to liquidate it in order to be able to hand it over to the heirs within a period of time of not less than six months. This is the scope of power which the national law assumes toward its own citizens, and this is the scope of power delegated by the nation in its turn to its consular agents.

“For this reason it is obvious that the consul during the period of liquidation may also bring an action for the recovery of unlawful payments. From the moment that he is the administrator and the legal representative of the estate in Italy, in the absence of heirs and in cases contemplated by the conventions, it follows that judicially in him resides the universum ius and that during that period he may, or should, bring any action in Italy interesting the heirs.

“Whereas by these arguments it appears useless to examine the last motive the judgment must be annulled, and so it is decided.”

I have, etc.,

Lloyd C. Griscom.

[Inclosure.—Translation.]

facts.

At the end of 1904 a Mrs. G. I. Johnson, an American citizen, located in Rome, with two of her children, at a pension kept by a Mrs. Dawes Rose. On the 25th of January, 1905, Mrs. Johnson died from pneumonia, and two days later Mrs. Dawes presented to the son of the deceased a bill made out to his name and including board and disinfection, of the room, disinfection amounting, it was claimed, to 184 lire.

Mr. de Castro, consul-general of the United States, by letter of January 28, 1905, sent to Mrs. Dawes 579 lire, the aggregate amount of the bill of Mr. Johnson’s. Having ascertained, however, from the health office that no disinfection had been applied for nor had been made by said office, and that such disinfection was not compulsory in view of the disease, he cited Mrs. Dawes before the royal pretore of the third district of Rome demanding restitution of the 184 lire paid by mistake, and he offered to prove that said sum had been demanded from him by Mrs. Dawes as representative of the Johnson heirs. Mrs. Dawes objected that the matter was a private one of Mr. Johnson’s and not one concerning the estate of the deceased, and that consequently the consular convention could not be properly applied to the case; even though Mr. de Castro when paying had exercised his official function his powers were at an end and the claim of repayment should be made, if at all, by the Johnson heirs or by a duly empowered attorney; finally, that the present case was one of those contemplated by the conventions. So much for lack of right of action. As to the merits, the demands of De Castro were said to be without foundation.