No. 242.
Mr. Fish
to Mr. Davis.
Washington, April 7, 1875.
Sir: Referring to the question of the taking of testimony in Germany by commissioners appointed under the authority of the courts of this country, I have to inform you that on the 1st of April Mr. Schlozer, the German minister, called, and after informing the Department that his government had found some fault with him because he had not answered the inquiries contained in my note to him of the 9th December, 1874,* a copy of which was transmitted to you with my No. 34, stated that he had been directed by his government to answer the questions. He said that in pursuance of this instruction he informed the Department that the rule which had been laid down by the German government, in reference to the case of Wolff, namely, that the testimony could be procured by letters rogatory, was a general rule, and applied to any case in which [Page 538] testimony was desired. He further stated that he was directed to-inform the Department, in reference to the hope expressed in my note that the German government might see fit to change the rule which it had laid down, excluding commissioners from taking testimony, that his government, while desirous of assisting in the procuring of testimony, were not now able to comply with our request, but that at the coming session of parliament the matter would receive consideration, with a view to affording equal facilities on this question to this country and to Great Britain. In answer to an inquiry addressed to Mr. Schlözer, as to the cause of the rule laid down by the German government, he replied that such action in taking testimony was prohibited by law in Germany, and that the cause of the refusal was not occasioned by a rule of public policy. He was informed that this Government had not previously known of the existence of any distinct statute or law on that question. During the conversation Mr. Schlözer was informed that unless the Department was mistaken, the German officials in this country avail themselves of the liberality of our provisions of law on this question, in which statement he acquiesced.
I should be glad to ascertain whether Mr. Schlözer be correct in supposing that there is a prohibition by statute, or otherwise, in this matter in Germany. If it be so, it maybe that some legislation might be required. The Department had supposed, however, that the rule laid down was an expression of the public policy of Germany.
Mr. Schlözer seemed greatly surprised, in the course of the conversation, to learn that while the right to take testimony was guaranteed by few treaties, at the same time formal objections are not interposed by foreign governments to such action, and that this was the first instance that had come to the knowledge of this Department where a foreign government had intervened to prevent a plaintiff and defendant from obtaining testimony for their mutual benefit, to be used in a pending lawsuit; and after expressing his own opinion in favor of our system, he stated his intention to forward these facts to his own government.
It is apprehended that the German government has chosen to convey an answer to these questions through their minister here, and that we may consider this question for the present as settled, but these facts are forwarded for your information should any convenient opportunity offer to again refer to the question, and especially if it should appear that there is no positive enactment of German law, as we have been informed exists, or in case the German government should in any respect change its views in consequence of any representations made by Mr. Schlözer.
I am, &c.,
- See correspondence with German minister, post.↩