File No. 10892.
Ambassador Tower to the Secretary of State .
Berlin , December 20, 1907 .
Sir: I have the honor to bring to your attention a case which has recently occurred at my house in Berlin, and which brings into question the subject of diplomatic privileges in regard to immunity from arrest of servants in an ambassador’s household.
The facts appear to be as follows:
Upon a certain occasion early last spring there appeared at my house, in Berlin, at No. 4 Königs Platz, a person who represented himself to be, and who I understand is, a collector of municipal taxes. He was met at the front door of my house by my porter, Herrmann Tolk, of whom he asked certain questions relating to persons liable to taxation in my house. The said Tolk informed him that this is the residence of the United States ambassador, and that consequently there are no local taxes to be collected. The porter and the tax collector having in the meantime engaged in a somewhat uncivil conversation with each other of no importance, one of the members of my family came out at the front door toward the street to leave the house, whereupon the porter, seeing him, said to the tax collector: “Stand aside and let this gentleman pass,” to which the other replied: “I am not obliged to stand aside for anybody; I am an officer of the law,” and the porter then said to him: “If you do not know enough to understand that no taxes are levied in an embassy you had better leave the place.” The tax collector went to a magistrate and brought an action against Tolk upon the ground of personal insult and of having obstructed a public officer in the fulfillment of his duty. So much for the facts in so far as they have been reported to me.
A writ of summons issued out of the court against Tolk to appear to answer this charge, and a note was addressed last May by the imperial German ministry for foreign affairs, a copy and translation into English of which are respectfully herewith inclosed, to Mr. [Page 528] Eddy, then in charge of the embassy during my temporary absence, in which the request was made that the permission of the embassy should be granted to the service of this summons within the limits of the ambassador’s house. Upon the receipt of this request, and considering the trifling cause which had called for the intervention of the minister of justice and the minister for foreign affairs, involving a certain question of international law, I went to see Herr von Tschirschky und Bogendorff, who was at that time imperial secretary of state for foreign affairs, and asked him whether the action could not be withdrawn by the complainant in order that we might be relieved from giving it any further importance; and after a rather full discussion, in which he met my views in an exceedingly friendly manner, we both agreed that the porter, Tolk, should go and see the complainant, Heymann, and explain to him as well as he could that he had not intended any personal affront to him in the conversation which he had had with him at my front door. The subject was then dismissed from the mind both of the secretary of state and of myself until to-day, when I have received a note from the ministry for foreign affairs saying that, to the great regret of the secretary of state, a subject which we both believed to have been disposed of long ago has presented itself again, and, that whilst the porter, Tolk, did go to see the complainant, his apology seems to have led to further disagreement between the two men and to have inflamed the hostile intentions of the tax collector to a further demand for justice. The case is, therefore still upon the calendar of the court, and the magistrate wishes to have the summons served upon the porter, Tolk. The secretary of state for foreign affairs requests me therefore to give an answer to the note of last May, in which permission is asked for to serve the summons within the limits of my house.
I am aware that in so far as immunity from arrest is concerned the Department of State recognizes that the personal immunity of a diplomatic agent extends to his household and to his servants, though there is some question as to such immunity in cases where such servants are subjects of the country of his sojourn, especially in the matter of military service. But I recall the fact that Mr. Secretary Fish declared in his dispatch of July 18, 1874, to Mr. Jay, that the true test of privilege from suit of a diplomatic representative—
is whether the exercise of the municipal authority in question is an unreasonable interference with the freedom with which the functions of the diplomatic representatives must be performed.
And in his note to Mr. Jay of the 29th of November, 1874, he declared also that—
the tendency of opinion in regard to immunity of diplomatic agents is believed to be strongly toward restricting them to whatever may be indispensible to enable the agents to discharge their duties with convenience and safety, but that diplomatic immunity is not intended to allow anyone who enjoys it to indulge with impunity in personal controversy or to escape liabilities to which he otherwise might be subjected.
The Porter Tolk is a German subject, a resident of Berlin, who has been in my service for the last five years, and is a man of entirely good character. The controversy which he has fallen into is one which is purely personal, but one which unquestionably brings the [Page 529] ordinary German subject under the ordinary German law. It appears to me, therefore, that the issue of the summons against him is perfectly legal under the law of the land, and that the summons would have to be accepted by him without question if he were not in the employ of a foreign diplomatic representative; and, on the other hand, there can be no question in my opinion that the attitude of the Prussian Government in this matter is entirely correct, for it has recognized the existence of the right which foreign ambassadors have for themselves and for the members of their household to claim immunity from arrest, but having recognized this principle of international law it asks my permission to allow the service of this summons to be made. My judgment is that I should be acting only in accordance with the decisions heretofore made by the Department of State and by our own interpretation of international law if I allow the service of the summons to take place in my house, in compliance with the request made of me by the Prussian Government, and I have the honor to inquire whether in so doing I shall be acting with your approval and whether I have your authority to allow such service to take place.
I have approached this question with more care, perhaps, than it might seem at first to call for, but I would not willingly take any step which might commit the United States Government in regard even to a small question in international law until I feel sure that my action is confirmed by you.
I have, etc.,