No. 287.
Mr. Coleman to Mr. Bayard
.
Berlin , September 16, 1887. (Received October 1.)
Sir: I have the honor to acknowledge the receipt on the 12th instant of your instructions, No. 249, dated the 30th ultimo, in which you request this legation to inquire and report, as upon a matter of interest, how far a privilege similar to that accorded to subjects of the German and Anstro-Hungarian Empires, reciprocally, under the convention of May 9, 1886, between these powers, is also granted to citizens of the United States bringing suit in Germany.
In response to your instructions, I beg to report as follows: The German provisions of law to which Mr. von Versen, the vice-consul-general of the United States at this post, refers in his communication of the 1st ultimo to the Department of State, which you inclose, are embodied in the Imperial German Code of Civil Procedure of January 30, 1877, under the sixth and seventh heads of the same, entitled, respectively, Security for Cost (Sicherheits-Leistung) and the Law for the Poor (Armen-Recht).
Mr. von Versen states in his dispatch that—
Under the laws of the German states persons whose poverty is shown by certificates from the local authority of their domicile enjoy the privilege to commence and prosecute lawsuits within Germany free of cost and being dispensed with depositing courts’ cost in advance.
The indulgence granted as above stated to poor German subjects is, however, not confined to them; the provisions of that admirably drawn code relating to this subject are broad, and apply to foreigners also, providing only that reciprocity is assured.
Under the title, the Law for the Poor, the code declares, in paragraph 106 and paragraph 107, as follows:
Paragraph 106. Whoever is unable, without curtailment of the means necessary for the support of himself and family, to bear the costs of the suit is entitled to the privilege of the poor in case his intended prosecution or defense is not frivolous or devoid of prospect of success.
[Page 400]Foreigners are entitled to this privilege of the poor only in so far as reciprocity is assured.
Paragraph 107. The party to whom the privilege of the law for the poor is granted acquires thereby the folio wing benefits:
- (1)
- Provisional dispensation from judicial costs, accrued and to accrue, inclusive, of official fees, of compensation to be accorded to witnesses and experts, and of other cash disbursements, as well as of the stamp duty.
- (2)
- Dispensation from giving security for the costs of the suit.
- (3)
- The right to have assigned to him an officer for the purpose of effecting gratis, provisionally, service of papers and acts of execution, and also, if it be necessary that he be represented by counsel, the right to have assigned to him counsel for his assistance gratis provisionally.
As regards the security for costs to be furnished by a foreign plaintiff in an action, irrespective of the poverty of a litigant, the Imperial Code declares, in paragraph 106:
Foreigners acting as plaintiffs must, upon the demand of the defendant, furnish security for the costs of the action.
This obligation shall not exist—
1. When in accordance with the laws of the state to which the plaintiff belongs a German would, in the same case, not be obliged to furnish security for costs.* * *
You will perceive from the foregoing that a foreign plaintiff enjoys under the German code immunity with respect to furnishing security for costs, provided only reciprocity be assured by the laws of the state of the foreign plaintiff.
It will thus appear that a convention is not necessary, however convenient it might be as giving wide publicity and conveying official notice to courts to secure to foreigners the benefits conferred under the two titles of the German code herein referred to, but only that it be shown that reciprocity is assured to Germans in the country to which the particular foreigner belongs. Since, therefore, the conclusion of a convention on this subject between the United States and the German Empire is not feasible, might it not be advisable to procure authoritative information from the various States of our Union as to whether, under the respective laws of those States, Germans are treated as citizens, with respect to the right to sue in forma pauperis; and, further, whether, irrespective of the question of the right to sue in such form, any German plaintiff in such States of the Union is dispensed from the necessity of furnishing security for cost in an action, provided a citizen of that State would enjoy like immunity in a like case in Germany?
If you shall see fit to obtain authoritative information upon the vital points bearing upon the subject in the laws of the various States and of the United States, and shall think it advisable to furnish this legation with forms of certificates to be submitted to the German courts when needed, a very useful purpose will, I believe, have been thereby accomplished. I will remark in this connection that numerous requests, which it did not feel at liberty to comply with in the absence of positive information, have been addressed to this legation by Americans resident in Germany for certificates of the character referred to, with the statement that the courts had declared they would grant the privileges and immunities sought upon the production of such certificates from this legation.
As it does not appear that a copy of the convention of May 9, 1886, between Germany and Austria-Hungary was transmitted with the communication to the Department from our consulate-general in this city, I inclose herewith a copy of the same with translation. The convenience of such a convention is obvious, even when the laws of the two countries contain like provisions respecting the subject matter of this dispatch. I am not aware what further reasons, if any, dictated the negotiation for and the conclusion of the convention in question; possibly no provisions of the character under consideration had before existed in the laws of Austria-Hungary.
I have, etc.,