Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 6, 1910

File No. 18253/24.

The Acting Secretary of State to the Italian Ambassador.

Department of State,
Washington, October 1, 1910.

No. 891.]

Sir: Referring to previous correspondence in regard to the case of Carmino Maiorano, and particularly to this department’s note of May 20 last, I have the honor to say that with a due appreciation of the importance of the questions involved in the discussion which has taken place between yourself and this department regarding this case, the department has given the whole matter a most thorough, attentive, and careful consideration and has, as a result thereof, reached the following conclusions upon the points involved:

As you will recall, the questions have arisen out of and are connected with the following facts and circumstances:

On December 23, 1903, one Carmino Maiorano, an Italian subject, was killed on the Baltimore & Ohio Railroad at or near Connellsville, in the State of Pennsylvania. After his death, his widow, Maria Giuseppe Raffaella Maiorano, on behalf of herself and her two children brought suit in the Pennsylvania courts, alleging in her complaint that she was a resident of the Kingdom of Italy and a subject of the King of Italy, and prayed damages for the loss suffered by herself and her children by reason of the death of her husband.

The Pennsylvania statutes upon which this suit appears to have been based read as follows:

Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or, if there be no widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned. (Act of Apr. 15, 1851, sec. 19, Pennsylvania laws.)

The persons entitled to recover damages for any injury causing death shall be the husband, widow, children, or parents of the deceased, and no other relatives; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors. (Act of Apr. 26, 1855, sec. 1, Pennsylvania laws.)

The court in which the case was first tried, in accord with the principle laid down in the case of Deni v. Pennsylvania Railroad (181 Pennsylvania State Reports, 525) entered a compulsory nonsuit which it subsequently refused to take off.

The supreme court of Pennsylvania, upon the case being taken to that tribunal, decided, also following the case of Deni v. Pennsylvania Railroad Co., supra, that the nonsuit was properly ordered.

In the earlier case cited and relied upon by both courts, that of Deni v. Pennsylvania Railroad Co., Mr. Justice McCollum, delivering the opinion of the court, made the following declaration regarding the meaning and scope of the statute of 1855, above quoted:

While it is possible that the language of the statute may admit of the construction which would include nonresident alien husbands, widows, children, and parents of the deceased, it is a construction so obviously opposed to the spirit and policy of the statute that we can not adopt it. A nonresident defendant is not entitled to the benefit of our exemption laws, although the language of these laws may admit of a construction which would include him.

* * * * * * *

We have a number of statutes which expressly confer rights upon aliens, but none which confers them by implication or inference. When the legislature intends to concede to nonresident aliens the rights which our citizens have under and by virtue of the act of April 26, 1855, it will say so.

Alleging that this decision of the court violated the rights to which she was entitled by the provision of the treaty of 1871 between the United States and Italy, Mrs. Maiorano, the plaintiff, took an appeal from the decision of the supreme court of Pennsylvania to the Supreme Court of the United States, where Mr. Justice Moody, voicing the unanimous opinion of the court, delivered, after stating that “the only question for our decision is whether a proper interpretation and effect were allowed to the treaty,” the following decision of the court:

We put our decision upon the words of the treaty. By a fair interpretation of them did they directly confer upon the plaintiff the right which she seeks to maintain? We are of the opinion that they did not.

Three articles only are relied on as material. They are:

• Article 2. The citizens of each of the high contracting parties shall have liberty to travel in the States and Territories of the other to carry on trade, wholesale and retail, to hue and occupy houses and warehouses, to employ agents of their choice, and generally to do anything incident to, or necessary for trade, upon the same terms as the natives of the country, submitting themselves to the laws there established.
• 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.

Article 23 bestows upon citizens of either power, whether resident or nonresident, free access to the courts, “in order to maintain and defend their own rights.” with the ancillary privileges of suitors. This article does not define substantive rights, but leaves them to be ascertained by the law governing the courts and administered and enforced in them.

Articles 2 and 3 deal with the rights of the citizens of one party sojourning in the territory of the other. There seems to be nothing pertinent to the case in article 2. But special stress is laid upon article 3, which stipulates for the citizens of each, in the territory of the other, equality with the natives of rights and privileges in respect of protection and security of person and property. It can not be contended that protection and security for the person or property of the plaintiff herself have been withheld from her in the territory of the United States, because neither she nor her property has ever been within that territory. She herself, therefore, is entirely outside the scope of the article. The argument, however, is that if the right of action for her husband’s death is denied to her, that he, the husband, has not enjoyed the equality of protection and security for his person which this article of the treaty assures to him. It is said, that if compensation for his death is withheld from his surviving relatives, a motive for caring for his safety is removed, the chance of his death by unlawful violence or negligence is increased, and thereby the protection and security of his person are materially diminished. The conclusion is drawn that a full compliance with the treaty demands that, for his protection and security, this action by his surviving relative should lie. The argument is not without force. Doubtless one reason which has induced legislators to give to surviving relatives an action for death has been the hope that care for life would be stimulated. This thought was dwelt upon in Mulhall v. Fallon, supra, in considering a statute which made the amount recoverable dependent upon the degree of culpability of the negligent person., Another reason for such legislation, quite as potent, was the desire to secure compensation to those who might be supposed to suffer directly and materially by the death. This thought seems to have been uppermost in Pennsylvania, according to the courts of that State. See Chambers v. B. and O. R. R. Co., 207 U. S., 142, and cases cited. Without dwelling further upon the purpose and effect of legislation of this kind, and assuming that both might be calculated in some degree to increase the protection and security of persons who may be exposed to dangers, we are of opinion that the protection and security thus afforded are so indirect and remote that the contracting powers can not fairly be thought to have had them in contemplation.

If an Italian subject, sojourning in this country, is himself given all the direct protection and security afforded by the laws to our own people, including all rights of action for himself or his personal representatives to safeguard the protection and security, the treaty is fully complied with, without going further and giving to his nonresident alien relatives a right of action for damages for his death, although such action is afforded to native resident relatives, and although the existence of such an action may indirectly promote his safety. (213 U. S., 268.)

As you yourself know, and as was recognized by the minister of foreign affairs, Signor Tittoni, in his speech before the Italian Parliament on June 7, 1909, this decision of the Supreme Court of the United States is, so far as the Government of the United States is concerned, conclusive as to the meaning of this treaty, and it must therefore be considered, as Signor Tittoni seems to admit, as pronouncing the attitude of this Government upon the Maiorano case.

It might, however, be observed that even though the Department of State were not, as it is, controlled as to the interpretation of the treaty by the decision of the Supreme Court, yet it would, as the result of an independent investigation of the questions therein involved, find itself brought to the same conclusions reached by that court, and for the following reasons:

As pointed out in the Supreme Court decision, there are three articles of the treaty of 1871 which have been invoked at one or another stage of the discussions of this matter, with a view to maintaining the contentions put forward on behalf of the plaintiff in this case. These are the articles numbered 2, 3, and 23. The reading of article 23, which will be first considered, is 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, 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 evidence, which may be exhibited in said trials.

Concerning the provisions of this article as thus quoted it should be observed that contrary to the opinion expressed by you in your memorandum of October 26, 1909, the department, after careful consideration, finds itself confirmed in the view it first took, that the decisions of the Pennsylvania courts do not violate article 23 of the treaty, which article, as was so clearly stated by our Supreme Court, merely “bestows upon citizens of either power, whether resident or nonresident, free access to the courts ‘in order to maintain and defend their own rights’ with the ancillary privileges of suitors. This article does not define substantive rights but leaves them to be ascertained by the laws governing the courts and administered and enforced in them.”

It would appear that there can be no question (indeed, the matter seems not to have been mooted) that in this case the plaintiff, even though a nonresident Italian subject, had ample and free access to the courts of the United States, that those courts to which she applied gave her the same hearing and the same rights at the hearing that they give not only to other aliens but to American citizens as well, and that nothing was put in the way either of the plaintiff or of her attorney that even in the slightest degree militated against a fall, fair, complete, and impartial hearing, presentation, and consideration of the complaint which the plaintiff had to make. It is therefore confidently submitted that the case can not be considered as involving any disregard whatsoever of the obligation imposed by article 23 of the treaty.

The provisions of article 2, which have also been invoked in this controversy, read as follows:

The citizens of each of the high contracting parties shall have liberty to travel in the States and Territories of the other, to carry on trade, wholesale and retail, to hire and occupy houses and warehouses, to employ agents of their choice, and generally to do anything incident to or necessary for trade upon the same terms as the natives of the country, submitting themselves to the laws there established.

It will be observed that this article specifically enumerates certain rights which shall be enjoyed by citizens of each of the territories in the other, such rights being “the liberty to travel in the States or Territories of the other, to carry on trade, wholesale or retail, to hire and occupy houses and warehouses, to employ agents of their choice, and generally to do anything incident to or necessary for trade upon the same terms as the natives of the country, submitting themselves to the laws so established.”

It is believed to be unnecessary to enter into any extended argument to show that the right claimed by the plaintiff in this case is not among those enumerated in this article, nor is it a necessary incident of any right therein enumerated, nor may it be logically inferred from the grant of any right mentioned in the article, and this being true, it can be scarcely maintained that the decision of this case violates any of the provisions of this article of the treaty, which must, therefore, be regarded as disappearing from the discussion.

The remaining article cited in support of the claimant’s contention, article 3 of the treaty, reads, in its first paragraph (the paragraph which contains the provisions upon which reliance is placed), as follows:

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.

A careful reading of this paragraph will show that the right conferred by it is the right of “the most constant protection and security for their persons and property” of the citizens of one country resident in the other; that is, this provision stipulates as to security and as to protection of the persons and of the property of “citizens of each of the contracting parties * * * in the States and Territories of the other.” The article also stipulates that as to such protection and security for such persons and property citizens of either shall enjoy the same rights and privileges as are or shall be granted to natives.

It would appear to be unnecessary to elaborate any argument in order to demonstrate that to bring a given case within the provisions of this article it must be shown either that the protection or security of some person falling within the purview of the treaty is threatened, or that the protection or security of some property belonging to some such person is endangered. Since it does not appear that in the present case any complaint whatever is made regarding the protection or security of the person of the plaintiff in this case, this particular question may be dismissed; and it necessarily follows from the elimination of this factor that in order that the case may be brought within the provisions of this article of the treaty it must be made clearly to appear—first, that proper protection and security have not been given to some property or property rights possessed by the claimant; and, secondly, that the claimant falls within the class of persons contemplated and described by the stipulations of the treaty hereinbefore quoted. Therefore, the first and fundamental question in the Maiorano case is not the question of the protection and the security of a property right already acknowledged to exist, but is the question of the very existence of any property right at all to which the treaty provisions could attach and in favor of which they could be invoked; and upon this question the Pennsylvania courts have held and the Supreme Court of the United States has affirmed that no such property right existed in this case in favor of the Italian subject, plaintiff in this case, and that therefore no treaty right has been violated.

Upon this question as to whether or not there is an existing property right in this case in favor of the plaintiff, the following observations are submitted:

It will, in the first place, be observed that the gist of the present claim is that a certain sum is due to the plaintiff as alleged damages suffered by her as the result of the accidental and innocent death of her husband while he was employed upon and about the defendant’s railroad. In order, therefore, to afford any just grounds for complaint in this case it must be made to appear that this situation raised in favor of the claimant and against the defendant railroad company a right which it is the duty of the American courts to enforce for the plaintiff’s benefit. With this in mind it may be next and further observed that it is a principle now regarded as well settled in Anglo-Saxon jurisprudence, both English and American, that at common law there was no such right accruing to the survivors of individuals losing their lives under the circumstances set forth in this case, as is sought to be enforced by the present plaintiff (as above stated), and this was the condition of the common law upon this matter for centuries during which time the complicated doctrines governing negligence and contributory negligence grew up and were perfected. In the course of time, however, and as social and economic systems became more complex, the insufficiency of the common law, as this developed upon this point, became so apparent and the need for a change therein seemed so clear, that in 1846 the Parliament of Great Britain undertook to pass some remedial legislation and pursuant to that plan enacted the now famous Lord Cambell’s act (Stats. 9 and 10’, Vic. c. 93, sees. 1 and 2), by and under which, in appropriate cases, certain surviving relatives of persons killed became entitled to damages for the death of the deceased. Since this, the earliest statute upon the subject, became a law, practically all countries governed by the common law have enacted similar legislation. In interpreting this legislation, however, there has been almost perfect unanimity among the courts in holding that these statutes create totally new rights of action for the death of certain individuals, to be enforced against the responsible parties, and that such statutes do not and were not intended merely to keep alive the action which the deceased might have had for the injuries received by him had he lived.

Upon this point it may be well to quote a well-recognized American authority who lays down the law regarding this principle as follows:

In this country (United States), as in England, the legislation upon which this topic has been construed by most courts has created an entirely new cause of action, and not as transferring to the personal representative the right of action, which the deceased would have had, if he had survived the injury, although the statutes of some States have been differently construed. As the cause of action is thus purely statutory, the plaintiff is bound to show that he is the proper person to bring the action; that at least one of the class named as beneficiaries is in existence and entitled to damages; and that the defendant comes within the class to whom the statute applied. (Burdick Law of Torts, p. 233, and see Pollock on Torts, p. 66, et seq., eighth ed.)

Inasmuch, therefore, as the right is statutory, that is, created by statute, and in no wise part of the common law, and as, in order to recover under the statute, it is necessary for the claimant to show that he is one of those in whose favor the statute creates a right, it is obvious that unless the plaintiff in a particular case, comes within that class, that then and in that event no right of action can be said to exist. It was with these principles in mind that the Pennsylvania courts and the Supreme Court of the United States held that the claimant in this case had no right of action against the railroad company.

It seems scarcely necessary in this connection to call to your attention the principle that, under American law, the question of the interpretation of the law, statute and common, has, by the Constitution of the United States, been made a matter for the determination of the judiciary, State or Federal, and that a law has that meaning, and must be so construed and administered, which is placed upon it by judicial interpretation. It follows naturally from this principle, and such is the universal practice, that as to the particular law or statute in question, the executive and legislative branches of the Government are bound by the interpretation placed upon it by the judiciary, and if the judiciary fails to give to a law the meaning or interpretation which the legislature intended should be given to it, the remedy in such cases is to be obtained by amended and supplemental legislation. It was the appreciation of these principles which led the supreme court of Pennsylvania, in the Deni case, to remark that “when the legislature intends to concede to nonresident aliens the rights which our own citizens have under and by virtue of the act of April 26, 1855, it will say so.” And in this connection it is surely not without significance to note that notwithstanding these two decisions of the courts of Pennsylvania, the last of which was affirmed by the Supreme Court of the United States, the legislature of Pennsylvania has as yet taken no steps, so far as is known, to enact the legislation necessary to confer upon nonresident aliens the rights conferred upon others by the statutes of 1851 and 1855; and the conclusion is inevitable, therefore, that to the present time, the legislature of Pennsylvania has had no disposition to extend the statute beyond the interpretation given to it by the Pennsylvania courts.

It is therefore submitted with all confidence that as to the existence of the right of action sought to be enforced in this case it must be regarded as established—first, that the right here sought to be enforced did not exist in common law; second, that such right could and does exist only where and after being specially created and conferred by statute; third, that the courts of the United States, State, and Federal, have held that the Pennsylvania statute conferred no such right; fourth, that the courts which have so ruled are the proper parties to interpret the meaning of the laws and statutes of the United States; and fifth, and finally, that so far as the attitude of the Government of the United States is concerned this determination by its highest court upon the question of the interpretation of a statute must be regarded as definitive.

It would appear necessarily to follow from the foregoing that since the plaintiff in this case possesses no property or property right to which the jurisdiction of the court can attach and upon and concerning which it can deliver and enforce judgment, there is no sufficient ground upon which to base any objection whatsoever to the decisions of the courts in this case.

Since the solution of this, the first, point presented—that is, whether or not a property right is involved in this case—results in a negative conclusion; and, as already pointed out, since the existence of a property is the sine qua non to the invocation of the treaty provisions in this case, it becomes unnecessary to consider the second point presented—that is, whether or not the plaintiff in this case falls within that class of individuals contemplated and provided for by article 3 of the treaty.

The Government of the United States must, therefore adhere to its position already taken, that the decisions of the Pennsylvania courts and of the Supreme Court of the United States in this case, in no way violate the obligations imposed by the treaty of 1871 between the United States and the Kingdom of Italy; and I am constrained again to suggest that I do not perceive any ground upon which it can be successfully contended that this shall not be regarded as a final disposition of the present case, and that this department therefore considers the matter as closed.

Inasmuch, however, as in the course of the correspondence and conferences had regarding this case, it has been suggested that the questions in connection with this case be submitted to arbitration, I am constrained to add some further observations regarding this phase of the representations of your Government.

It would appear under the analysis made above, that the only questions which could be submitted to arbitration in connection with this case would be—first, whether or not a statute conferring upon citizens and resident aliens certain rights which were denied to nonresident aliens, was contrary to the duties and obligations imposed by the treaty; or, secondly, whether the interpretation placed upon the American statutes by the American courts was a correct interpretation.

The first proposition reduces itself to the question whether or not the treaty permits the Government of the United States, or any of the component States, without violating any of the treaty obligations of the United States, to confer upon citizens and resident aliens rights which do not extend to nonresident aliens; and to state this question would appear to be to answer it. It is believed that there is no principle of international law which could be invoked in support of any such contention. On the contrary, indeed, it is a fundamental principle of the law of nations that not only may rights conferred upon citizens be reserved from nonresident aliens, but even that aliens permanently residing in the country may be denied rights which are given citizens; and this rule applies not only to civil rights, but to property rights as well. In this connection it is necessary to do more than cite, as to civil rights, the all but universal and the unquestioned practice of denying to aliens the right of suffrage; and as to property rights, the very general denial to aliens of the right to hold real property and to have the same descend in the same manner in which real property may be held by and may descend to citizens.

It need scarcely be suggested that neither the Government of Italy nor the Government of the United States could have contemplated that any other or different interpretation should be given to this treaty than that contended for by the United States, or if different, that such interpretation could be based upon a derogatory principle of so far reaching and important a character and so fundamental in its bearings and effects as that which would be involved in the determination of the question suggested.

Inasmuch, therefore, as an arbitral decision adverse to the United States upon this question would not be in accord with the well-recognized principles of international law and would, as to the treatment of aliens, be contrary to a policy followed by this Government since it first became a member of the family of nations—a policy which has been regarded as fundamental to its needs and welfare—and inasmuch as it could hardly be expected that the Government of the United States could, by reason of one isolated case, find it possible permanently to carry out the policy of a decision that placed it under obligation to overthrow a national policy thus well settled and established; and, finally, inasmuch as were such a decision to be rendered it would doubtless be found necessary, in view of all the circumstances, for this Government to take steps to abrogate the present treaty and to attempt to secure the negotiation of another more in consonance with the principles of international law and with its own national honor, dignity, and integrity, I need scarcely point out to you that the question under consideration would appear to be of the character of those which are by the very terms of the arbitration treaty between the United States and Italy expressly excluded from the category of matters that the two Governments have therein so solemnly undertaken to arbitrate.

Regarding the second question that might be presented for submission to arbitration—namely, whether or not American courts have properly interpreted American statutes under the circumstances existing in this case—I am convinced that this is not, any more than the question first indicated, a question properly the subject of international arbitration. It may, of course, be that where one nation is prepared to say as to the legislation of another nation that such legislation is improper, that it is contrary to the law of nations, or that it is outrageous in its application and operation, or that it is discriminatory in its effects, such nation may expect the offending nation to submit to arbitration the wrongs suffered by citizens of the complaining State as a result of such legislation; but in the absence of any such aggravating circumstances and conditions it will not, I believe, be contended that the mere interpretation of the statute itself is a proper subject for determination by arbitral tribunal.

For these reasons, confident though I am that the treaty does not have the meaning sought to be placed upon it, and that it would not bear any such construction, yet since the matters involved in the questions indicated affect the vital interests, of this Government, I find myself unable to accept your suggestion that the matter be referred to arbitration at The Hague.

In closing this communication I desire to say that it is with a feeling of no little satisfaction that I am led to believe from the statements made in the communications you have addressed to the department that the decision in the Maiorano case will have upon such cases but comparatively little practical effect (so far as the general conditions existing in this country are concerned), since I understand you to say that there are now but three States in the Union in which the law is the same as that existing in the State of Pennsylvania, the law in all the other States of the Union, save these three only, being such as to permit nonresident Italian subjects occupying the position in which Mrs. Maiorano finds herself placed to recover from the employing company in appropriate cases an indemnity for the death of the deceased relative. This being the present state of the law, it would appear that the tendency of all American legislation is to increase the scope of such indemnity statutes so as to include relatives of persons dying from injuries, no matter where such relatives may be living and no matter whether they be aliens or citizens, and I am therefore confident in the hope and expectation that the legislation in this country will upon this subject soon become uniform, and so remove all cause for complaint based upon these considerations. In order that this end may be speedily reached, I beg to assure you that should your Government desire this department so to do I should be pleased to draft a communication to the governors of the States named by you as not now giving to nonresident alien subjects the rights which your Government desires for them in this matter, in which communication I shall be glad to direct the attention of such governors to the actual conditions existing and to the complaints which have been made regarding the limitations of the statutes in force in their States, and to add to such statements an expression of hope that the governors may see their way clear to recommend to their respective legislatures the enactment of such legislation as will bring the laws of their respective States more into harmony with those existing in other parts of the Union upon this question.

Accept, etc.,

Alvey A. Adee.