§ 575. Claim based on treaty with Italy.-In 1901 the complaint of an Italian subject was presented to the Department of State, claiming that a judgment entered in Colorado was in violation of the treaty of 1871 between the United States and Italy. The portions of the treaty which it was contended related to the subject were articles III and XIII. The first of these (article III) declared that:

"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. . . .

The second provided (Art. XVIII): "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."

In that case, the widow of Pietro Ferrara, an Italian subject, instituted a suit in Colorado against a mining company to recover damages for the death of her husband, who was an employee of the company, and who was injured by the falling of a large rock upon him while employed by the company, and whose death was the result of his injuries. The court dismissed the action on the ground that the plaintiff was a nonresident alien, and not entitled to prosecute it in the courts of that state. An appeal was taken and was granted upon condition that the plaintiff should file an appeal bond. She did not perfect the appeal, but filed a motion for a new trial, and as one of the grounds of the motion it was asserted that the judgment was in violation of the terms of the treaty above set forth. Her motion for a new trial having been denied, she appealed to the Italian government to make a demand upon the United States for the sum of five thousand dollars, for

Treaties-36

which, according to the allegations of the demand, "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." Mr. Hay, Secretary of State, said in reply that the case was not one for diplomatic intervention, because the plaintiff had not exhausted her judicial remedy. "It frequently happens," said he, "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." 49

§ 576. Another instance. It would take us too far afield to mention the many cases in which these principles have been applied, but we may call attention to another instance in which the views held by the United States were clearly expressed. John H. Tunstall, a British subject, residing in the territory of New Mexico, was killed. He was the owner of a ranch in that territory, and had a partner, named McSween. An attachment had been issued against the property of the latter, and the sheriff authorized a deputy to serve the writ, and he levied on certain livestock. Service of the writ was admitted by Tunstall, who said to the deputy that he might attach the stock and place it in

49 Mr. Hay, Secretary of State, to Signor Carignani, Italian Chargé, Aug. 24, 1901, For. Rel. 1901, 308. The United States cannot recognize

any obligation to indemnify foreign residents for a boycott. See section 544, ante.

charge of some one until such time as the courts should determine the question of ownership as between him and his partner, McSween. Instead of following this course, the deputy departed, and shortly after returned to the ranch with a posse. In the meantime Tunstall had collected the stock and had proceeded to drive it to the county seat, some miles distant. The deputy sheriff then authorized one of the posse with eighteen others to pursue Tunstall and capture the stock, and after pursuing him for a distance of eighteen miles they overtook him and began to fire, and although Tunstall sought to escape, he was shot in his flight and killed. The shooting was witnessed by only three persons, and subsequently two of these died through violence, and the third was not punished nor could he be located. It was contended by the British government that the members of the party in pursuit were the personal enemies of Tunstall, and that the sheriff, through the action of his deputy and the posse, was guilty of murder committed in the execution of legal process. Sir Edward Thornton, the British Minister, asserted that the father of the deceased possessed a pecuniary interest in the life of his son, arising from business operations conducted by him, and therefore, as the sheriff was the agent of the United States, he, the father, was entitled to recover indemnity from the United States. The Minister asserted that the father was powerless to recover damages from the Territory of New Mexico by legal proceedings or other means, and that while an American citizen might in a similar case appeal to Congress, an alien could not pursue this course, and, as a result, the United States must be looked to for compensation. Mr. Evarts said he did not believe that the killing of an American citizen under similar circumstances in one of the British colonies would constitute a claim against the government of Great Britain.50

It was suggested by Mr. Frelinghuysen, as Secretary of State, that the claim be referred to the court of claims, but the British government declined to accept this suggestion unless the United States should concede its liability. A re-examination having been requested, Mr. Bayard, among other grounds, held there was no merit in the claim, because "in countries subject to the Eng

50 MS. Notes to Great Britain, XVIII, 461; 6 Moore's Int. L. D.

lish common law, where there is an opportunity given of a prompt trial by a jury of the vicinage, damages inflicted on foreigners on the soil of such countries must be redressed through the instrumentalities of courts of justice, and are not subject to diplomatic intervention by the sovereign of the injured party.

51

§ 577. Discrimination against American citizens. If an American citizen is more harshly treated, or more severely punished. because he is a native-born citizen of the United States, “it would be a clear case of the violation of treaty obligations, and would demand the interposition of the government." 52

Mr. Bayard, who, as Secretary of State, declined to present a claim of an American citizen for the murder of his father in Mexico, expressed the principles of international law to be that: "We can no more permit ourselves to seek redress for injuries inflicted by private individuals in Mexico on one of our citizens than we could permit Mexico to intervene to seek redress for injuries inflicted on Americans by private individuals in the United States. The rule is that where the judiciary is recognized in a country co-ordinate with the executive, having committed to it all suits for redress of injuries inflicted on aliens as well as on citizens. then the judiciary and not the executive must be appealed to for redress. There are, it is true, two exceptions recognized to this rule: First, when there is undue discrimination against the party injured on account of his nationality; secondly, where the local tribunals are appealed to, but justice was denied in violation of those common principles of equity which are part of the law of nations.'' 53

51 Mr. Bayard to Mr. West, British Minister, June 1, 1885, For. Rel. 1885, 450. A number of other similar instances can be found in 6 Moore's Int. L. D. 656-677.

52 Report by Mr. Webster, Secretary of State, to the President; 6 Webster's Works, 530.

53 To Mr. Copeland, Feb. 23, 1886, 159 MS. Dom. Let. 138.

In 1904, the bandit Raisuli carried away an American citizen named Ion Pericardis, about three miles

from Tangiers. The consul-general of the United States informed the authorities of Morocco that he would hold them personally responsible for the act of the bandit, and a squadron was ordered sent to Tangiers. On July 22, 1904, Mr. Hay, Secretary of State, sent his famous dispatch to the American ConsulGeneral that the United States "wants Pericardis alive or Raisuli dead." Pericardis was released on the 24th of June of that year, and

§ 578. Moneys received from foreign governments in trust for American citizens. In the act of Congress of February 26, 1896, making appropriations for the diplomatic and consular service for the fiscal year ending June 30, 1897, the following provision is made for the disposition of trust funds: "Hereafter all moneys received by the Secretary of State from foreign governments and other sources, in trust for citizens of the United States or others, shall be deposited and covered into the treasury. The Secretary of State shall determine the amounts due claimants, respectively, from each of such trust funds, and certify the same to the Secre