Office of the Historian

File No. 18253.

Memorandum to the Italian Embassy.

Department of State,
Washington, November 4, 1909.

The Department of State has the honor to acknowledge the memorandum regarding the death of Carmine Maiorano, handed by the Italian ambassador to the Assistant Secretary of State on October 26, 1909, and in reply calls attention to the fact that the decision of the Supreme Court of the United States violated neither the express wording nor the spirit of article 3 of the treaty of commerce and navigation of February 26, 1871, nor of article 23 of the same treaty, quoted by His Excellency. Articles 3 and 23 of the treaty are as follows:

  • Article 3. 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 23. 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.

It will be noted that article 3 grants to the contracting parties “the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the [Page 393] natives” Article 23 likewise assimilates the Italian subject to native citizens of the United States “without any other conditions, restrictions, or taxes than such as are imposed upon the natives” These passages seem to grant to Italian subjects the same rights as citizen of the United States, while subjecting them, as a necessary condition, to the limitations upon the exercise of rights which citizens of the United States enjoy. The law of Pennsylvania as interpreted by the Supreme Court of Pennsylvania, and as affirmed by the Supreme Court of the United States, draws a distinction between citizens of the United States actually residing within Pennsylvania and citizens of the United States not residing in Pennsylvania, permitting citizens of the United States actually residing within Pennsylvania to bring suits for damages resulting in the death of a relative, but denying to citizens of the United States not residing in Pennsylvania the right of recovery in such a case. As, therefore, citizens of the United States are subjected to residence for the enforcement of certain rights, it does not seem that Italian subjects can claim any greater rights than citizens of the United States, unless greater rights and privileges are expressly granted to them by treaty, and the wording of the treaty shows that Italian subjects are to enjoy no greater rights.

There seems to be no discrimination shown between citizens of the United States and Italian subjects, because the enjoyment of rights specifically granted by the treaty is made to depend upon compliance with the “conditions imposed upon the natives” (art. 3), and the “conditions, restrictions, or taxes,* * * imposed upon the natives.” The most that international law requires in the absence of special treaty is equality of treatment.

The requirement of residence as a condition precedent to the enjoyment of rights and privileges is well recognized in American jurisprudence. (Corfield v. Coryele, 1825, Washington’s Cir. C. Reps., p. 371.) The department, therefore, fails to note either discrimination or inequality in the recent decision of the Supreme Court of the United States, to which exception is taken by His Excellency the Italian Ambassador.