appears that the plaintiff did not perfect the appeal, however, but instead, on May 11, filed a motion for a new trial in the same court, one of the grounds of such motion being that the judgment was in violation of the treaty of 1871 between the United States and Italy, the pertinent portions of which are as follows: "ARTICLE III. 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 XXIII. 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." On June 29 last the court denied the plaintiff's motion for a new trial. 66 The plaintiff, through her attorneys, appeals to the Italian Government to make demand upon the Government of the United States for the sum of $5,000, for which," they allege, "she was deprived the right of litigation in violation of the said treaty between the two countries, and such other or further sum as may be just and equitable for the affront and indignity which she received by being thus discriminated against." You submit the matter to this Department for such measures as the Federal Government may see fit to take. In the opinion of the Department the case, in its present stage, is not one for diplomatic intervention, for the reason that the plaintiff has not exhausted her judicial remedy. It frequently happens that litigants are denied rights by the decisions of inferior courts and are obliged, in order to establish such rights, to carry the case to the courts of last resort. The plaintiff in the present case should pursue the judicial remedy afforded by our laws, perfecting her appeal to the court of appeals (the supreme court) of Colorado, and, if necessary thereafter, by appropriate proceedings, bring the case before the Supreme Court of the United States. Furthermore, under the laws of the United States, the circuit courts of the United States have original jurisdiction of civil suits like the present one to which an alien is a party. It is suggested for the consideration of the attorneys of the plaintiff whether an original suit should not be brought in the circuit court of the United States for the district of Colorado. Until the remedy of recourse to the civil tribunals has been exhausted by the plaintiff and justice is finally denied her, there appears to be no ground for the presentation of a diplomatic claim. The inclosures in your note are returned as requested. Accept, etc., JOHN HAY. Signor Carignani to Mr. IIay. [Translation.] EMBASSY OF HIS MAJESTY THE KING OF ITALY, Washington, October 3, 1901. MR. SECRETARY OF STATE: I have the honor to acknowledge the receipt of your excellency's note of August 24, 1901, No. 704, relative to the claim of Mrs. Fenice Ferrara, and to thank you therefor. It is stated in said note that, in the present state of the question, the Department of State is of the opinion that there is no ground for diplomatic intervention, inasmuch as the claimant has not exhausted all lega. means of redress: The contents of the aforesaid note has been communicated to Mrs. Ferrara and her lawyer by the royal consul at Denver, and said lawyer has sent a letter to the consul containing certain explanations which appear to be of special importance. I decided to lay the matter before the Department of State only after a careful examination of the evidence produced in the case, from which I thought that there appeared to be no doubt that the claimant had in reality exhausted all legal means for the assertion of her rights before the courts. The letter" of Mr. M. J. Galligan, a lawyer of Pueblo, Colo., a copy of which I herewith inclose, confirms and explains the situation more satisfactorily. It consequently becomes my duty again to submit the case to your excellency's consideration, and I feel confident that the considerations stated in the letter of Mrs. Ferrara's legal adviser, and the inquiries which you will think proper to make on the subject, will cause the question to be decided in favor of an unfortunate woman who, in addition to having lost her husband, who was killed while at work, has been left in the most abject poverty. Thanking you for the kind attention with which you will, I am sure, be pleased to examine this note, I have the honor, etc., CARIGNANI. P. S.-I herewith inclose the papers in the case, requesting that they may be returned to me. Mr. Adee to Signor Carignani. CARIGNANI. No. 708.] DEPARTMENT OF STATE, SIR: I have the honor to acknowledge the receipt of your note of the 3d instant, with inclosed letter from M. J. Galligan, attorney for Mrs. Fenice Ferrara, relative to her complaint that she had been denied justice in the district court of Pueblo, Colo. The Department has given careful consideration both to your note and its inclosure, but without being led thereby to alter the conclusion expressed in its note of August 24 that Mrs. Ferrara had not exhausted her judicial remedies and hence that there was no ground for the presentation of a diplomatic claim in her behalf. Mr. Galligan states that when Mrs. Ferrara was denied the right to prosecute her action in the district court of the State her judicial remedy was practically exhausted; and he asserts, also, that she was, by her poverty, practically prevented from taking further proceedings. The Department's note of August 24 points out the particulars in which the plaintiff failed to avail herself of the judicial remedy afforded her when the district court denied the motion for a new trial. The poverty of the plaintiff, which, it is alleged, prevented her from taking the necessary legal proceedings to establish her rights, affords no basis for a claim of a denial of justice. It is a rule practiced not only by many American courts, but also by those of other civilized states, that the plaintiff shall, as a condition to the prosecution of his case, give a bond to secure the costs (caution judicatum solvi) he may thereby occasion. Such requirement can not be treated as a denial of free access to the courts, nor as a denial of justice giving ground for diplomatic intervention. Nor in any case could this Government be expected to perform the function of parens patriæ by providing even a meritorious foreign claimant with pecuniary aid which his own government might decline to afford. Much less could the United States be expected to pay outright this claim, considering that the Government was not in the remotest degree connected with the transaction out of which the claim arose, and that justice has not been judicially denied. "The stranger, in all countries, is subject to the local law, as respects either the prosecution or defense of his case. In both aspects, he stands upon the same footing as the natives, save la caution judicatum solvi, very frequently imposed upon the alien plaintiff.” (2 Calvo, Int. Law, sec. 865.) Though the plaintiff foreigner be thus allowed to bring his suit, he is, by the laws of the States, compelled to give bail (fournir caution) for costs and damages." (4 Phillimore, Int. Law, p. 643.) While the Department has before enunciated its views in this case, it has been at pains to set forth fully in this note the grounds of its decision, which is so fully sustained by reason and authority, that it should be considered as final. Accept, etc., ALVEY A. ADEE, CONDOLENCES ON ASSASSINATION OF PRESIDENT MCKINLEY. Signor Carignani to Mr. Hay. [Telegram-Translation.] ITALIAN EMBASSY, Manchester, Mass., September 15, 1901. I am in receipt of the following telegram from the minister of foreign affairs: I learn with profound sorrow of the death of the President, the victim of an assassination which has excited the greatest horror in Italy. I beg that you will immediately convey to the Federal Government and the family of the lamented President these sentiments in the name of the Government of the King and in my own. PRINETTI. CARIGNANI, Chargé d'Affaires of Italy. Mr. Hay to Signor Carignani. [Telegram.] DEPARTMENT OF STATE, Washington, September 16, 1901. I have made direct acknowledgment of the touching message of condolence of his excellency the minister of foreign affairs. Our people deeply appreciate such tributes from a nation they so truly esteem. JOHN HAY. Mr. Hay to the minister of foreign affairs of Italy. [Telegram.] DEPARTMENT OF STATE, Washington, September 16, 1901. I have received through Signor Carignani the feeling message of sympathy conveyed by your excellency on behalf of the Italian GovThe American Government and people are especially grateful in this hour of sorrow for the condolence of a nation which has so recently suffered through a like horrible crime. JOHN HAY, Secretary of State. Cardinal Rampolla to Mr. Hay. [Telegram.] ROME, September 15, 1901. His Holiness, having been with deep sorrow apprised of the death of President McKinley, condemns the heinous attempt which was attended with such baneful results, and very keenly shares the mourning of the American nation. M. CARDINAL RAMPOLLA. Mr. Hay to Cardinal Rampolla. [Telegram.] DEPARTMENT OF STATE, Washington, September 19, 1901. I have the honor to request you to convey to His Holiness the deep appreciation here felt for his expression of sympathy with the sor rowing people of this country. JOHN HAY, Secretary of State. SIR: I have the honor to inclose herewith translations of various new regulations and notifications issued by the Japanese Government recently, which are of interest as relating to foreigners. I have, etc., [Inclosure 1.] A. E. BUCK. IMPERIAL ORDINANCES. The chairman of the international committee has forwarded the following translations by Dr. Lönholm for publication. Imperial ordinance No. 329, of July 7, 1899. 1. If a right in an immovable which might be set up against third persons has been duly acquired by an alien or a foreign juridical person before the time fixed in the imperial ordinance, No. 251, of the thirty-second year of Meiji, but has not been registered before the said time, it can not be set up against third persons registered within one year from such time. 2. For the immovables mentioned in article 1, special registry books shall be opened and kept at the respective registry offices within whose jurisdiction the places are where such immovables are situated. 3. Each folio of a registry book mentioned in the preceding article is divided in a column for the number of registration, a division for the designation of the immovables, and four sections headed respectively Kō, Otsu, Hei, Tei." The division for the designation contains a column for the description. Each of the four sections contains a column for the subject-matter of the registration and a column for the number of the order. In the column for the number of registration as to each piece of land or building is entered the order in which it has first been registered in the registry book. In the column for the description the land, buildings, or out-buildings are described and alterations of the same are entered. In the column for the number of the description the order of priority of the matters entered in the column of description is entered. In the column for the subject-matte: of section Kō are entered: (a) In the land registry book-matters relating to superficies. (b) In the building registry book, matters relating to ownership, In the column for the subject-matter of section Otsu are entered matters relating to preferential rights, pledges, and mortgages. That is the time fixed for the taking effect of the new treaties, either the 17th of July or the 5th of August, 1899. That is A, B, C, D. |