File No. 18253/13.
Memorandum from the Italian Embassy.
Washington, October 25, 1909.
Carmine Maiorano, an Italian subject, was killed on the night of December 23, 1903, in a railway collision at Laurel Run, near Connellsville, Pa.
The widow, Maria Giuseppa Raffaella Maiorano, in her own name and in that of her two young children, brought suit for damages against the responsible Baltimore & Ohio Railroad Co.
The court dismissed the case on the strength of the “Pennsylvania fatal-accident act,” on the ground that the plaintiff was a “nonresident alien.” The supreme court of the said State of Pennsylvania, to which appeal was taken, affirmed the judgment of the lower court.
The United States Supreme Court, to which the widow Maiorano had recourse as “plaintiff in error,” handed down a concurrent opinion.
It would result from this that in the State of Pennsylvania (and two other States, whose legislation is similar, Wisconsin and Washington) nonresident Italians are deprived of the right which, under like circumstances, would be held by Americans to institute proceedings for the recovery of damages on account of violence or negligence resulting in the death of spouse, parent, or child.
Now, that is a right which is expressly conferred upon them by the treaty of commerce and navigation of February 26, 1871, in article 23, reading as follows:
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 and support, etc.
Nothing can be more explicit than this text. Yet the judgments of the Pennsylvania courts, which the opinion of Justice Moody, of the United States Supreme Court, did not modify owing, perhaps, to his looking at only one side of the question, would create the following condition of fact: While an American may, in that State, sue for damages on account of death, that right is denied to Italians in contradiction of the equality between Italians and natives, which the treaty, in its letter as well as its spirit, establishes.
There is more. This condition of fact is contrary to the rules of reciprocity that are supreme in international law, since an American may, in the case under consideration, sue in Italy without any restriction whatsoever.
This, then, is a condition of things contrary to the express provision of article 23 of the treaty, contrary to the letter and spirit of the treaty itself, which, in articles 2 and 3, as well as in article 23, consecrates the principle of equal rights for Italians and Americans in the United States and in Italy; contrary to the principle of reciprocity which prevails in international intercourse. Nor is this all. It creates a condition of things which is repugnant to the very Constitution [Page 392] of the United States; for while the Constitution, in Article VI, places treaties above the State laws and declares them to be the “supreme law of the land,” adding that “the judges of every State shall be bound thereby,” the law of the State of Pennsylvania would in the present case nullify one of the clauses of the treaty of February 26, 1871. In establishing a discrimination between resident and nonresident Italians, a discrimination which the treaty does not contemplate, establish, or, in its general spirit, allow.
For the foregoing reasons, drawn solely from the treaty in force and the principles of public law, and without bringing forth the other reasons of equity, logic, humanity, and practically universal civil consensus which might be advanced, the Italian embassy calls the best attention of the Department of State to a condition of affairs which, in the opinion of the King’s Government, constitutes a violation of a treaty in force, and proposes an immediate exchange of views to the end of remedying, if possible, the injury done by the present violation, and, particularly and mainly, with a view to preventing by a modification of or addition to the terms of the treaty, clear and explicit as they are, the possibility of affirming a jurisprudence contrary thereto and of maintaining in the future a continuous and permanent denial of justice to the detriment of the Italians living in the United States.