No. 288.
Mr. Bayard
to Mr. Pendleton
.
Washington , October 15, 1887.
Sir: Mr. Coleman’s very fall and interesting dispatch No. 504, of the 16th ultimo, relative to the right of American citizens to litigate in forma pauperis in Germany and of American plaintiffs in general to sue in [Page 402] Germany without furnishing security for costs, has been read with satisfaction.
The question whether a foreigner can sue in the United States in forma pauperis, and thus be relieved from giving security for costs, can be answered by the Department generally in the affirmative, without applying to the several States for information. The right was given under certain limitations to all poor persons by 11 Hen. VII, c. 12, and 23 Hen. VIII, c. 15; statutes which our colonists brought with them as part of the common law, when not expressly re-enacted. It may be safely asserted that there is no State in which the right does not exist, and in which it is not granted to foreigners. (See Whar. Conf. of Laws, 817.)
In the Federal admiralty courts any person whatsoever on proof of disability can be relieved from giving security for costs. (Wheatley v. Hotchkiss, 1 Sprague, 225; Collins v. Hathawayi, Olc, 176.)
It is true that the general practice is to require from aliens security for costs. But this is at the discretion of the court, and is exercised in meritorious cases in subordination to the above principle.
I am etc.,