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examination weeds out the unfit and supplies the embassies and legations with qualified secretaries.
Returning to the question of salaries, it is believed that a compromise may be reached which will give the President and Secretary of State free choice in filling the various posts in the diplomatic service at their disposal. If it be found that receptions and dinners are essential, an entertaining fund can be created and the number, nature and kind of receptions and diplomatic dinners prescribed and paid for out of this fund, for, if it be to the advantage of the diplomat to receive and entertain, it becomes his duty to do so, and the duty being official, the means to meet it should be supplied. It is feared, however, that the advantages of entertaining are exaggerated, just as our diplomats lay undue stress upon the advantages, indeed the necessities, of diplomatic costume. With Mr. Jefferson's statement concerning the alleged advantages of entertaining and lavish expenditure, may be quoted the statement of Andrew D. White on the matter of dress, who, as an experienced diplomatist, speaks with authority. "Truth compels me to add," he says, "that, having myself never worn anything save plain evening dress at any court to which I have been accredited, or at any function which I have attended, I have never been able to discover the slightest disadvantage to my country or myself from that fact."
The purchase of modest residences would relieve the ambassador or minister of a large item of expense, so that the salaries, where they are shown to be inadequate, would only need to be moderately increased. The opening of the diplomatic service to young men of parts and attainments with salaries adequate to their needs, with security of position and promotion for efficiency, would make diplomacy a career and would doubtless attract young men of ability, even although their purses were slender. The President and Secretary of State would thus be able to select competent persons out of the diplomatic service for the highest posts or for special reasons or for special occasions, and would have an efficient and trained personnel from which promotions could be made as necessity required or suggested.
RECOVERY BY NON-RESIDENT ALIENS FOR DEATH BY WRONGFUL ACT
On February 26 last the Senate of the United States advised and consented to the ratification of a new treaty signed by representatives of the United States and Italy on February 25, 1913, amending Article III
of the treaty of commerce and navigation concluded February 26, 1871 between the same countries.
The object and meaning of the recent treaty may perhaps be best understood when viewed in the light of the circumstances which led to its negotiation and signature. These circumstances appear to have begun with a railroad accident in Pennsylvania of which a subject of Italy was a victim. An Italian named Carmine Maiorano, while riding as a passenger on the Baltimore and Ohio Railroad in Pennsylvania was killed in a collision resulting from the alleged negligence of the employees of the company. At the time of the accident the laws of Pennsylvania contained a statute, based on Lord Campbell's Act, providing that upon death caused by unlawful violence or negligence, certain near relatives of the deceased had the right to recover damages from the guilty parties. Under this statute, the widow of Maiorano, who was also an Italian subject but who had never been in this country, brought suit by her attorney in this country against the railroad company to recover an indemnity for the death of her husband. The argument of the plaintiff was in substance that although the statute above mentioned was not, according to the previous decisions of the Supreme Court of Pennsylvania, applicable to non-resident aliens, nevertheless Article III of the treaty of 1871 being the supreme law of the land had the effect of enlarging the scope of the statute so as to include alien relatives residing abroad, because the right under the statute to sue for damages in case of injury or death operated as "protection and security for their persons" against wanton negligence on the part of employers or third persons. Article III of the treaty of 1871 reads in part as follows:
The citizens of each of the high contracting parties shall receive in the States and Territories of the others, 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.
With the plaintiff's reasoning, however, the Supreme Court of Pennsylvania disagreed and on appeal was sustained by the Supreme Court of the United States. That court held substantially that this article of the treaty afforded merely protection and security to persons and property in this country and that the widow of Maiorano being a nonresident, did not come within the meaning of Article III as contemplated by the negotiators of the treaty.
Mr. Justice Moody delivering the opinion of the court said:
It cannot 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 [Article III] 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 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. * We are of opinion that the protection and security thus afforded are so indirect and remote that the contracting Powers cannot 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 actions 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 non-resident 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. (Maiorano v. Baltimore & Ohio R. R. Co., 213 U. S. 268, at 274, 275.)
Following this decision, the Italian Government took up with the Government of the United States the discussion of the questions involved particularly with reference to the interpretation placed upon the treaty of 1871 by the Supreme Court in the Maiorano case. As a result of this discussion negotiations were undertaken in the summer of 1912 with a view to concluding an agreement modifying Article III of that treaty so as to meet the objections pointed out by the Supreme Court. The resulting arrangement took the form of the Italian treaty recently approved by the Senate, of which Article I is in the following language:
The citizens of each of the high contracting parties shall receive in the States and Territories of the other the most constant security and protection for their persons and property and for their rights, including that form of protection granted by any state or national law which establishes a civil responsibility for injuries or for death caused by negligence or fault and gives to relatives or heirs of the injured party a right of action, which right shall not be restricted on account of the nationality of said relatives or heirs; and shall enjoy in this respect the same rights and privileges as are or shall be granted to nationals, provided that they submit themselves to the conditions imposed on the latter.
It will be noted that this article mentions in addition to "persons and property" a third subject of security and protection namely "rights," and that these are defined to include rights under any law establishing a civil responsibility for injuries or death. The original limitation however is retained, namely, that aliens have no greater rights in this respect than are granted to nationals. The advantages growing out of the enlarged scope of Article III will, it is understood, also be available to citizens or subjects of other countries, whose Governments have most favored nation treaties with either the United States or Italy. This concession, however, is not so extensive as it at first seems, for a large proportion of the states of the Union, including Pennsylvania, have now made their "Lord Campbell's Acts" applicable to non-resident as well as resident aliens.
As illustrating further the need of an international understanding in regard to the rights of non-resident aliens, attention may be called to the case of Terlinden which arose in Wisconsin in 1901. Terlinden, a subject and resident of Germany, embezzled a sum of money belonging to a German bank, fled to the United States and deposited it in a Milwaukee bank. He was subsequently extradited to Germany. The German bank, however, and an American creditor of the embezzler, brought suit to recover the money left by Terlinden in the Milwaukee bank. The Supreme Court of the United States on appeal affirmed the decision of the Supreme Court of Wisconsin, that as between two creditors, one nonresident alien and one an American citizen, both claiming the same money in this country, preference should be given to the American even though his claim arose after attachment by the alien, and that, therefore, in this case the American creditor of Terlinden was entitled in preference to the German bank to the deposit made by Terlinden in the Milwaukee bank.
A point was made that the rights of the German bank were protected by Article I of the treaty of 1828 between the Government of the United States and the Kingdom of Prussia, which provides that the "inhabitants" of either country "shall enjoy the same security and protection as natives of the country where they reside." But Mr. Justice Day, delivering the opinion of the United States Supreme Court, stated
There is nothing in this treaty undertaking to change the well recognized rule between States [of the Union] and nations, which permits a country to first protect the rights of its own citizens in local property before permitting it to be taken out of
the jurisdiction for administration in favor of those residing beyond their borders. (Disconto Gesellschaft v. Umbreit, 208 U. S. 570, at 582.)
It is interesting to consider whether this decision would have been rendered had the new Italian treaty been in force at the time and had the German bank taken advantage of it by virtue of a most favored nation treaty between Germany and the United States. If the State of Wisconsin applies the rule of the Terlinden case also to non-resident citizens of sister States, it may be a question whether the German bank could complain even under Article I of the new Italian treaty, which retains the principle of equality of treatment with nationals.
On October 6, 1912, the distinguished Belgian statesman and publicist, Mr. Auguste Beernaert, died at Lucerne, Switzerland. He was born in 1828 and was thus at the time of his death eighty-four years of age. Educated at the Universities of Louvain, Paris, Berlin and Heidelberg, he was a lawyer by profession and found the law the highway to political success. He was elected a deputy in 1873 and after filling various cabinet posts he was Prime Minister from 1884 to 1895, and from this year to 1900 he was President of the Chamber. With his career as a statesman this comment is not concerned, but it is important to bear in mind his training at the bar and his experience in office, in order to understand the influence which his advocacy of peaceful settlement of international disputes exerted upon the cause of arbitration. Delegate of Belgium to the First Peace Conference which met at The Hague in 1899, he was president of the commission to which the question of the limitation of armaments was referred. It is well known that the Powers generally took very little interest in this subject and that it was difficult to bring about a discussion of it. Mr. Beernaert had the happy thought of calling upon each member of the commission in alphabetical order and by this device, as simple as it was effective, provoked a discussion. A convention dealing with the subject was impossible, but it was something of a triumph to have had the question discussed, especially in view of the ill-disguised contempt with which it was regarded by many, if not most, of the delegates. Mr. Beernaert was heartily in favor of establishing the so-called Permanent Court, which is in reality merely