[Enclosure]
Memorandum
The Austrian Government refers to a resolution adopted at the
International Immigration and Emigration Conference in Rome in 1925
advising all countries which heretofore did not enter into
agreements relating to mutual aid in the administration of justice,
that they should grant by special conventions to immigrants and
their families equal rights with their own citizens in matters of
legal protection.
It is presumed that reference is had to the following resolution
adopted at the International Immigration and Emigration Conference
at Rome in 1924 (and not 1925, as stated in the Memorandum):
“Legal and Judicial
Assistance
“The Conference,
“considering that it is advisable to facilitate legal
assistance for emigrants and their families,
“expresses the Wish:
- “(a) that the States which
have not yet concluded conventions on this subject,
and particularly emigration and immigration States,
[Page 1015]
should
establish, by means of agreements based on
reciprocity, equality of treatment with nationals as
regards access to judicial assistance;
- “(b) that when consular
conventions are being negotiated, the States
concerned should consider the possibility of
authorising consuls, in the interests of their
nationals who may be absent, to approach the
administrative and judicial authorities, in order
that their nationals may avoid prescription or the
forfeiture of the rights which they possess under
the laws for social insurance. The steps taken by
the consuls must be confirmed by the parties
concerned in the forms prescribed by the laws of the
country of residence;
- “(c) that each Government
should encourage the formation and facilitate the
work of private associations for legal assistance to
emigrants.”
Reference is also made to Article XVII of the Convention for Civil
Procedure of July 17, 1905,16 which
provides as follows:
“Aucune caution ni dépôt, sous quelque dénomination que ce
soit, ne peut être imposé, à raison soit de leur qualité
d’étrangers, soit du défaut de domicile ou de résidence dans
le pays, aux nationaux d’un des États Contractants, ayant
leur domicile dans l’un de ces États, qui seront demandeurs
ou intervenants devant les tribunaux d’un autre de ces
Étas.
“La même règie s’applique au versement qui serait exigé des
demandeurs ou intervenants pour garantir les frais
judiciaires.
“Les Conventions par lesquelles des États Contractants
auraient stipulé pour leurs ressortissants la dispense de la
caution judicatum solvi ou du
versement des frais judiciaires sans condition de domicile
continueront à s’appliquer.”17
In this relation it may be observed that in
practically all jurisdictions in the United States it is customary
to require a plaintiff who is a non-resident of the State in which
he brings suit to give security for costs, but that no
discrimination is made between citizens and aliens since the
question whether a cautionary bond should be required from a
plaintiff is determined solely by the residence of such plaintiff in
the State regardless of his nationality. Except in respect of
actions in the Federal Courts the benefit of the privilege of suing
in forma pauperis likewise depends in the
most jurisdictions on residence and is accorded to alien residents
as well as to nationals.
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Should the United States bind itself by a treaty provision similar to
that of Article XVII of July 17, 1905, aliens in this country would
be placed on a more favorable basis with regard to the deposit of
cautionary bonds than nationals since the test of residence in the
State would not be applied to the case of aliens as it is in the
case of nationals.
This Government has not heretofore concluded treaties relating
specifically to the granting of legal assistance to aliens.
Paragraph 1 of the Protocol of the Treaty of Friendship, Commerce
and Consular Rights concluded with Esthonia on December 23, 1925, is
the only specific provision in regard to this matter which has been
included in a treaty of the United States. Articles I, II and XXV of
a similar treaty concluded with Germany in 1923, which also are
included in other treaties may be of interest. Copies of the above
mentioned treaties are enclosed.18
The conditions under which aliens might sue in the courts of the
several States of this country have generally been regarded as
matters to be determined in accordance with the laws of the several
States. This Government has, however, included in treaties
negotiated with other Governments provisions guaranteeing to
nationals of the respective countries freedom of access to the
courts on conforming to the local laws and the most constant
protection and security for their persons and their property and
stipulating that property of nationals of the respective countries
shall not be taken without due process of law.
Generally speaking, it may be stated that even in the absence of
treaty provisions aliens in this country are placed upon an equality
with American citizens in the matter of legal remedies. In view of
this fact and since questions of procedure in the courts of the
different States of this country are determined by the laws of such
States, this Government does not consider that there are sufficient
grounds which would warrant it in negotiating a treaty of the nature
suggested in the Memorandum of the Austrian Government, infringing
as it does upon matters normally falling within the jurisdiction of
the several States.
As showing the extent to which this Government has concluded treaty
provisions pertaining to the right of aliens to pursue legal
remedies, attention is invited to Paragraph 3 and 4 of Article I of
the Treaty between the United States and Germany of Friendship,
Commerce and Consular Rights, concluded on December 8, 1923.
Attention is also invited to Article II of this Treaty regarding the
rights of relatives or heirs of nationals of the respective
countries under laws
[Page 1017]
establishing civil liability for injuries or for death; and to
Article XXV of the same treaty conferring upon consular officers the
right to receive on behalf of their non-resident countrymen
distributive shares derived from estates in process of probate or
accruing under the provisions of so-called Workmen’s Compensation
Laws, or other like statutes. Such provisions have already been
agreed upon for inclusion in the Treaty of Friendship, Commerce and
Consular Rights between the United States and Austria, the
negotiation of which is nearing conclusion at Vienna.19
Washington, February 10,
1928.
