File No. 18253.
Memorandum to the Italian Embassy.
Washington , November 16, 1909 .
In further reply to the memorandum of the Italian Embassy of November 5 last, with reference to the case of Maiorano v. The Baltimore & Ohio Railway, in which it is stated that the embassy can not yield to the department’s explanation as set forth in its memorandum of November 4 last, the department is constrained to reiterate the view in its memorandum above referred to—that is, that articles 3 and 23 of the treaty of February 26, 1871, confer upon Italian subjects the same rights enjoyed by citizens of the United States and no greater, while, at the same time, subjecting them, as a necessary condition, to the limitations upon the exercise of rights enjoyed by citizens of this country.
As under the laws of Pennsylvania citizens of the United States must reside within the State of Pennsylvania in order to avail themselves of certain rights under its laws, 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 [Page 659] them by treaty, and the wording of the treaty shows that Italian subjects are to enjoy no greater rights.
Under the construction placed upon these articles by the Supreme Court of the United States, citizens of the United States residing in Italy are placed upon the same footing of equality with Italian subjects residing in Italy so far as the enforcement of rights in Pennsylvania is concerned.
As heretofore stated, the department is of opinion that the construction placed upon these articles by the Supreme Court is the true construction and does not discriminate against Italian subjects in favor of citizens of the United States, the latter being subjected under the laws of Pennsylvania to the same conditions as Italian subjects—that is, residence in that State in order to recover damages for the death of a relative therein.
The Department of State has carefully considered the proposition of the Italian Embassy that the treaty be amended in order to give greater rights to Italian subjects than they enjoy under the present treaty as interpreted by the Supreme Court of the United States. While solicitous to meet the desires of the embassy in this respect, the department regrets to state that it deems an amendment to the treaty inadvisable.