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. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONSULAR CONVENTION OF 1878 BETWEEN THE UNITED STATES AND ITALY. File No. 22205/9. The Secretary of State to the Italian Ambassador. DEPARTMENT OF STATE, Washington, January 13, 1910. EXCELLENCY: Referring to previous correspondence relative to the attempted service by a deputy of the State of Colorado of a writ in a libel suit upon the consul general of Italy at Denver within the premises of his office, I have the honor to transmit herewith copy of a letter on the subject which has been received from the governor of the State named. It appears from this communication that the present proceedings against the consul general are based upon a summons claimed to have been properly served without the consulate general, and not upon the original illegal summons. It would seem that the question involved is a judicial one, over which the State courts have concurrent jurisdiction with the Federal courts, under the authority of the act of February 18, 1875. Should the consul general deem himself deprived of a right or privilege under a law of the United States or a treaty, he may, under the Revised Statutes, section 709, have the final judgment or decree of a State court reexamined, reversed, or affirmed in the Supreme Court. of the United States upon a writ of error. In view of all the circumstances the department ventures to suggest that if the consul general wishes at some later stage of the proceedings to avail himself of the alleged lack of jurisdiction of the State court in which the action was begun, he make an appearance by counsel and enter a plea to the jurisdiction. Accept, etc., P. C. KNOX. Not printed. 67942° -FR 1910- 43 [Inclosure.] The Governor of Colorado to the Secretary of State. [Extract.] EXECUTIVE CHAMBER, Denver, January 5, 1910. DEAR SIR: It appears from the papers in the case that an action by Pasqualle Corte against Adolphe Rossi for libel was begun in the district court of the city and county of Denver on November 1, 1909. Summons was issued on the same day and served by a deputy sheriff upon Mr. Rossi, by delivering to him a copy of the complaint and summons at the consulate in the city of Denver. Mr. Rossi protested to me against the service and wrote me letters, copies of which I inclosed to you in a former communication. On November 9 I wrote to Judge Shattuck, and Judge Shattuck wrote to me, copies of letters which I also inclosed in my communication to you. It seems that the service of the summons was regarded by the courts as illegal, and no further action upon that service was had. On the 4th day of November an alias summons was issued in said cause, and on the 15th day of November service was had upon Mr. Rossi in the manner following (I quote the return of the party serving the summons): STATE OF COLORADO, City and County of Denver, 88: A. H. Rogers, being first duly sworn, on his oath deposes and says that he is above the age of 21 and is not interested in the within action in any manner; that he duly executed the within alias summons on the 15th day of November, A. D. 1909, by delivering a true copy thereof to the within named defendant, Adolph Rossi, within the city and county of Denver and State of Colorado, in the manner following, to wit: Afliant met the said Rossi on a public street in the said city and county of Denver and exhibited to the said Rossi the said alias summons, and tendered the same to the said Rossi and offered to deliver the same to him, saying at the time of said tender, "Mr. Rossi, I have here an alias summons for you issued out of the district court of the city and county of Denver, State of Colorado"; that the said Rossi thereupon shook his head and said "No, no." Affiant then said to the said Rossi, "You understand that if you refuse this you are served just the same." To which the said Rossi replied "No, no; you tried that once." Thereupon the said Rossi passed on, refusing to accept the said copy of the said alias summons or to take the same into his possession though fully informed as to what the said instrument was. Subscribed and sworn to before me this 17th day of November, A. D. 1909. A. H. ROGERS. It appears that the complainant, with his witnesses, January 4, appeared in the district court of the city and county of Denver, before Judge Shattuck and demanded a default and presented his testimony. The papers this morning indicated that Judge Shattuck has entered a judgment for $10,000, but Judge Shattuck assures me that no judgment has been entered as yet. The attorney general looked up the matter before, and when I called his attention to your telegram he referred to the authorities which he had examined and wishes to cite. He holds under his authorities that the State court has jurisdiction, provided the service of the summons is made at a place other than the consulate. (See Wilcox v. Luco, 118 California, p. 639; De Give v. Grand Rapids Furniture Company, 94 Georgia, p. 605; Bors v. Preston, 111 U. S., p. 252; In re Iasigi, 79 Federal, p. 751; 54 Southwestern, Tex., p. 636; 5 Moore International Law, p. 77.) The attorney general holds that the State court has jurisdiction with the right of removal upon the part of the consul to the United States court, which he failed to petition for. Yours, File No. 22205. No. 58.] JOHN F. SHAFROTH. The Secretary of State to Ambassador Leishman. DEPARTMENT OF STATE, Washington, January 31, 1910. SIR: For your information, in case the Italian foreign office should be misled as to the actual attitude of the State of Colorado and the Federal Government in the libel suit brought by Mr. Pasqualle Corte against Mr. Adolphe Rossi, Italian consul general at Denver, the department transmits herewith copy of a memorandum which has been prepared by the solicitor, stating the facts as they appear from the department's records. I am, etc., In re case of Pasqualle Corte v. Adolphe Rossi.-Under date of November 4, 1909, the Italian Embassy called the department's attention to an alleged violation of article 6 of the consular convention of 1878, by reason of the service upon Consul General Rossi within the Italian consulate general at Denver, Colo., of a summons in an action for libel instituted against the Italian consul general by Mr. Pasqualle Corte, former consul of Italy at Denver. On January 5, 1910, the governor of Colorado, with whom the department communicated, immediately upon receipt of the Italian ambassador's complaint, informed the department that the service of the summons within the consulate general was considered illegal by the court, but that an alias summons was issued on November 4, and service had on Mr. Rossi on November 15 while the Consul General was passing along a public street in the city of Denver, and that the plaintiff thereafter appeared in the district court of the city and county of Denver and demanded a default and presented his testimony. It appears that Mr. Rossi refused to make an appearance in the case, claiming exemption from suit under the treaty of 1878. The Italian ambassador in a note to the Secretary of State, dated January 4, states that a judgment by default for $10,000 has been entered against Mr. Rossi, "with execution of the judgment on his person if the penalty is not paid." To this the Italian Embassy objected on the ground that it was a violation of Article III, section 2, of the Constitution of the United States. On January 13 the department, in transmitting to the Italian Embassy a copy of the communication received by the department from the governor of Colorado, heretofore referred to, said: It would seem that the question involved is a judicial one, over which the State courts have concurrent jurisdiction with the Federal courts, under the authority of the act of February 18, 1875. Should the consul general deem himself deprived of a right or privilege under a law of the United States or a treaty, he may, under the Revised Statutes, section 709, have the final judgment or decree of a State court reexamined, reversed, or affirmed in the Supreme Court of the United States upon a writ of error. In view of all the circumstances the department ventures to suggest that if the consul general wishes at some later stage of the proceedings to avail himself of the alleged lack of jurisdiction of the State court in which the action was begun, he make an appearance by counsel and enter a plea to the jurisdiction. On January 16 the Italian ambassador telegraphed the Secretary of State that Mr. Rossi seemed to be threatened with arrest, and complained that such action on the part of the State authorities would be a new violation of treaty rights. However, on the 17th instant, the secretary to the governor of Colorado, in the absence of the executive, advised the department that “after investigation find no foundation of threatened arrest of Italian consul general at Denver," which information was immediately communicated to the Italian Embassy. Upon full consideration the attitude of the department is that a consular officer, unless exempt by treaty, is subject to suit in courts of the United States, and that there is no treaty provision exempting an Italian consular officer from suit in an appropriate case; that, although the Supreme Court of the United States has original, it does not possess exclusive jurisdiction, and that the district and circuit courts of the United States are competent to entertain and decide causes of action against consuls; and that since 1875 State as well as Federal courts may take and exercise jurisdiction in consular cases. As the question involved in the litigation between Mr. Corte and the Italian consul general at Denver is judicial in its nature, and, finally, as the Italian consul general can preserve his rights by a plea to the jurisdiction and thus have his case either removed by the Federal courts or passed upon in ultimate resort by the Supreme Court of the United States, the United States Government is precluded from intervening in the proceedings, as requested by the Italian Embassy. Mr. SECRETARY OF STATE: I have the honor to have recourse to your excellency's tried courtesy and to ask that you will, if possible, send me a copy of the provisions concerning the functions assigned to consuls of the United States in the making, writing, and receiving of wills. The information is desired by the royal minister of justice and pardons. While thanking your excellency in advance for all you may be pleased to do in compliance with this request, I renew, etc. File No. 2464/9. No. 865.] MONTAGLIARI. The Acting Secretary of State to the Italian Chargé. DEPARTMENT OF STATE, SIR: I have the honor to acknowledge the receipt of your note of June 18 inquiring in regard to the provisions concerning the functions assigned to American consuls in the making, writing, and receiving of wills. In reply I have the honor to state that it is no part of a consul's duty to take any action either in drawing wills or accepting them for deposit, although in some instances they are permitted by treaty to draw up testamentary dispositions. Their general instructions require them to decline to perform these as well as all other legal services except in cases where no lawyer is available and where delay would work hardship upon any American citizen. Even in such cases they are required to inform the interested person that the services are performed at the applicant's risk and that the Government of the United States can not be held responsible therefor. They are also prohibited by law from performing any legal services in their private capacity for compensation. Accept, etc., HUNTINGTON WILSON. |