
    FICHERA'S CASE. Michele Fichera et al. v. The United States.
    
      On the Proofs.
    
    
      A subject of Italy brings his suit under the Abandoned or captured property Act. The only question in the case is whether an American citizen may maintain an action against the government of Italy, so as to bring the claimant ' within the Act 27th July, 1868, (15 Si at. L., § 2, p. 243,) which prohibits the subject of a foreign government from maintaining a suit for captured property, unless the right to prosecute claims against such government is reciprocal.
    
    
      I. An American citizen may maintain an action against the government of Italy in its courts, and, hence, a subject of Italy may maintain an action under the Abandoned or captured property Act, (12 Stat. L., p. 820,) against the United States, in accordance with the provisions of the Act 27th July, 1868, (15 Stat. L., § 2, p. 243.)
    II. The civil law makes the Government, in matters of ordinary obligation, subject to the suit of the citizen in the ordinary tribunals of the country; and this liability of Government under the civil law is not a device of modern civilization, but has been deemed inherent in the system. “ The Civil Code of the Kingdom, of Italy ” of 1866 recognizes this principle and expressly provides that “ in suits pending before the judicial authority, between private persons and the public administration, the proceedings shall always take place formally at the regular session.”
    
    
      Mr. Thomas Wilson for the claimants:
    The plaintiffs and defendants join in the declaration and plea that they, the plaintiffs, are aliens, subjects of the King 'of Italy. The dispatches from the minister of justice at Rome to the minister of foreign affairs, and from the minister of foreign -affairs to the Italian minister at Washington, satisfactorily dispose of this question. These dispatches are the official declarations of the Italian government, made by its highest officers, sent to Washington, and introduced in the trial of this suit, by an Italian subject, against the United States Government. The dispatches are not confined to a declaration of the law of Italy, as it secures the rights between subject and subject, but they declare the law so far as it affects the rights of' the subject before the courts as against the government. They declare that the government accedes to the subject the fullest right to maintain his suit against the government before the courts, and the law by which that right is guaranteed is transmitted with, and made a part of, the dispatches.
    The statistics given show that this is not an empty right, but that it is exercised and taken advantage of, and many suits are brought before the courts of that country against the government. The legislative unification of the Italian states or provinces took place in 1865. The statutes above mentioned were passed in that year; but it appears that, like Bovill’s petition of rights act of 1860 in England, they were only declaratory of what had long before been the civil or common law of the country; and these rights did not depend upon the statutes alone. The dispatch from the minister of foreign affairs declares in the most positive manner that aliens shall enjoy the civil rights which belong to the citizen, and that the Italian legislation gives to American citizens power to prosecute claims against the government in its courts. All this, being the official declaration of the Italian government made to the United States G-ovemment, must be considered and taken as trae. At all events, it is conclusive upon the Italian government. After this declaration it would be estopped from denying it.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants.
   Nott, J.,

delivered the opinion of the court:

The only question presented by this case is whether, under the Italian law, an American citizen may maintain an action against the government of Italy. As we have before found, the perfected justice of the civil law made the government, in matters of ordinary obligation, subject to the suit of the citizen, in the ordinary tribunals of the country. We have found this right to be preserved under modern codes in Prussia, Hanover, and Bavaria, Brown’s Case, (5 C. Cls. R., p. 571;) in the Republic of Switzerland, Lobsiger’s Case, (id., p. 687 ;) in Holland, the Netherlands, the Hanseatic Provinces, and the free city of Hamburg, Broicn’s Case, (6 C. Cls. R., p. 193;) in France, Dauphin’s Case, (id., p. 221;) in Spain, Molina’s Case, (id., p. 269 ;) and in Belgium, DeGives’ Case, (7 C. Cls. R., p. 517.)

It was also shown in Brown’s Case, (5 C. Cls. R., p. 571,) by a distinguished historical writer who was examined as a witness, Mr. Frederick Kapp, that.this liability of a government under the civil law is not a device of modern civilization, but has been deemed inherent in the system, and has been so long established that, to use the phrase of the common law, the memory of man runneth not to the contrary. Therefore, it is to be expected that in Italy, the seat and fountain of the civil law, this same liability of government is to be found existing. The uOivil Code of the Kingdom of Italy” of 1866 recognizes, rather than establishes, the fundamental principle of liability; but it expressly provides (article 10) that, 11 in suits pending before the judicial authority, between private persons and the pub- ■lie administration, the proceedings shall always talce place formally at the regular session.”

It is also established, by the third article of the same code, that uthe alien is admitted to enjoy all the civil rights granted to 'citizens.” These provisions establish the right of an Italian citizen to maintain his action in this court, within the meaning of the Act July 27, 1868, (15 Stat. L., § 2, p. 243,) which prohibits the subject of a foreign government from maintaining a suit for captured property, unless “ the right to prosecute claims against such government in its courts” is reciprocal, and extends to citizens of the United States.

The judgment of the court is that the claimant recover the proceeds in the Treasury of five bales of cotton, captured at -Savannah, being $175.33 per bale, amounting in the aggregate to $876.65,  