Ambassador Tower to the Secretary of State.
Berlin, May 11, 1905.
Sir: I have the honor to report to you for your information a case which recently occurred at the United States consulate in Solingen, in which the American vice and deputy consul, Mr. Victor W. Heldt, was summoned to appear before the Amtsgericht in Solingen in a civil suit. The summons was issued to him upon the ordinary printed form used by that court, which form contained the following paragraph, in addition to the usual order from the court requiring the person summoned as a witness to be present at a certain day and hour, the time fixed for the appearance of Mr. Heldt being May 5, 1905, at 10 o’clock in the forenoon:
Witnesses who fail, without good cause, to appear, will be charged with the costs incurred by their nonappearance and will also be subject to a fine not to exceed 300 marks, or, in default of that sum, to imprisonment for a term not exceeding six weeks.
The evidence of the vice and deputy consul was required by the court to be given in a suit for damages which had been brought by a certain Otto Schmitz, a merchant in Solingen, against one C. W. Stöcker, a manufacturer in Gräfrath, and the testimony of Mr. Heldt was required in connection with a contract which the defendant in this case had made in the year 1903 with Mr. Joseph J. Langer, former American consul at Solingen, in which the said Langer had agreed for a consideration to obtain for the said defendant an agent in the United States acquainted with the manufacture of sugar, and that in return for the service rendered the said defendant agreed to pay a part of the said Langer’s traveling expenses to the United States.
Mr. Heldt wrote me a letter, calling my attention to this summons, in which he said:
I am called upon to act as witness in a matter concerning the former consul at this place, Mr. Joseph J. Langer. Kindly advise me whether, according to the treaty our government has with the German Empire, I am obliged to act as such witness.
Mr. Heldt has been appointed vice and deputy consul of the United States at Solingen, though exequatur has not as yet been granted to him, and this summons was addressed to him as “secretary of the United States consulate.”
In view of the provisions of article 3 in the treaty between the United States and Germany of 1871 that the respective consuls-general, consuls, vice-consuls, or consular agents, as well as their chancellors and secretaries, should enjoy in the two countries all privileges, exemptions, and immunities which have been granted or may in future be [Page 459] granted to the agents of the same rank of the most favored nation, and having in mind a similar case in which the American consul-general at Frankfort on the Main was called upon in 1889 to testify before a German court, I advised Mr. Heldt that he ought to reply to the court and declare his willingness to testify in the case before it if he were requested so to do, but that he should decline to obey a summons in which a penalty is set forth for his nonappearance, and I sent to him in a letter, which I wrote to him on the 4th of May a copy of a note verbale addressed by the Imperial German ministry for foreign affairs to this embassy on August 15, 1899. It was declared therein that immunity from the duty to appear as a witness before German courts is not legally accorded to the consuls of foreign powers by any of the consular treaties now in force. The concession is made, however, to all consular officials of Russia, Greece, and Japan that in civil procedure in case they are prevented from appearing through official duties or sickness they be examined at their residence or that they present their testimony in writing within a certain period allotted to them. Furthermore, the consular officers of Servia and the South African Republic when they are subjects of the state by which they are appointed have the greater privilege accorded them, which is not restricted to civil procedure, that in case they are prevented from appearing they have the right to be examined by the judicial authorities at their residence or to present their testimony in writing. It is, therefore, not to be regarded as a principle that the consuls of the United States of America, who have been recognized in the German Empire, are to be freed from the obligation of appearing as witnesses before a court after having been summoned. They are, however, in accordance with article 3 of the treaty of December 11, 1871, which embraces the most-favored-nation right, entitled to the privileges referred to above in performing their duties as witnesses—that is to say, the concessions granted to the consular representatives of Russia, Greece, and Japan will be accorded to all consular officials of the United States who have been recognized in the German Empire, and that granted to the consuls of Servia and the South African Republic, however, only to those who are in the possession of the citizenship of the United States. As regards the individual case in Frankfort on the Main, investigation has shown that by reason of an oversight the consul-general of the United States of America was summoned to appear before the Amtsgericht by use of the ordinary form. The consul-general did not comply with this summons, but addressed a communication to the Amtsgericht on February 20, 1899, in which he protested against this citation, but he declared that he would be willing to give the information asked for in case he were requested to do so. The Amtsgericht at Frankfort on the Main thereupon requested the consul-general to appear. In this communication it is stated that the use of the original formula was an oversight. The consul-general complied with this request.
I wrote to Mr. Heldt therefore:
As I understand it, you should comply with the request of the court to appear and give your testimony, but, as a consular officer of the United States, you ought to be requested to appear, and not to be summoned. Of course you will remember, in regard to your testimony, that article 5 of the convention of 1871 provides that the consular archives shall be at all times inviolable, and under no pretense whatever shall the local authorities be allowed to examine or seize the papers forming part of them.
After receiving that letter Mr. Heldt wrote a note to the Amtsgericht at Solingen, declaring his readiness to appear and give his testimony in compliance with a request of the court, but declined at the same time to answer the summons which contained the paragraph relating to a fine and imprisonment for nonappearance. He then wrote to me as follows:
I beg to inclose to you herewith a copy of my reply to the court, upon receipt of which reply the court requested me to appear as a witness, and entered upon its minutes that I could not be summoned, but had appeared at the request of the court.
With this the incident would seem to be satisfactorily closed.
I have, etc.,