Mr. Bigelow to Mr. Seward
No. 9.]
Legation of the United States,
Paris,
January 23, 1865.
Sir: Some months since I was requested to
ascertain what, if any, penal sanction attached to an oath of a French
citizen, administered by a consular officer of the United States. I
procured and communicated to you the verbal opinion of the procureur imperial, which was to the effect that
the laws of France did not regard false swearing in such cases as
perjury.
I have now the honor to enclose a written opinion upon the subject which
differs so widely from the received opinion of the French law in the
United States as to deserve publicity, especially among the members of
the legal profession; Some commissions were recently sent to this
consulate from California to take testimony in a large number of suits
to which the United States government was a party.
The witnesses to be examined were all Frenchmen, and there was reason to
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apprehend that it was the
intention of the parties who sued out the commission to make up in the
quantity of the testimony what it might lack in quality. Under my
advice, Mr. Farwell, United States naval officer at San Francisco, and
special agent for the government here, applied to Mr. Berryer to know
precisely what degree of value the laws of France attached to the oaths
of French citizens administered by a consular agent, and in what way,if
any, the testimony of a French citizen taken in France could he made
available in a suit pending in the United States.
Enclosed please find Mr. Farwell’s letter and the opinion of Mr.
Berreyer, which, if it required any support, I may say has been
confirmed out of the mouths of several French lawyers with whom I have
conversed upon the subject, none of whom seemed to entertain any doubt
upon the subject.
By this opinion it appears not only that no penalties attach to the false
testimony of a witness, sworn before the representation of a foreign
government, which can be enforced by the French tribunals, but that even
letters rogatory from an American to a French tribunal for the
examination of a witness are executed as a matter of courtesy only, the
tribunal not professing any control whatever over the witnesses after
their testimony had been delivered.
The original of this opinion will be placed on file at the Paris
consulate.
Yours, very respectfully,
Hon. William H. Seward,
Secretary of State,
&c., &c., &c.
Mr. Farwell to Mr Berreyer
Consulate of the United
States,
Paris,
January 5, 1865.
Sir: It is proposed to take in France the
testimony of certain witnesses who are citizens of and who reside in
France, to be read as evidence in certain suits at law pending in
the federal courts of the United States at New York and San
Francisco, in which suits the government of the United States is
plaintiff. For this purpose commissions have been issued by the
courts, directed to certain consular officers of the United States
residing in France, requiring them to take the testimony of the
witnesses upon their oaths, and to return the same in writing to the
courts aforesaid.
It is important to ascertain, before incurring the labor and expense
of executing these commissions, whether the oath which these
consular officers are required to administer to the witnesses will
or will not be binding upon them by the law of France; and if, by
the French law, these witnesses will be liable as for perjury,
should any of them speak falsely in reply to questions propounded to
them upon this examination.
I respectfully request that you will state your opinion upon these
questions in writing, citing such laws and decisions as bear upon
them.
Be good enough to inform me in what manner the testimony of witnesses
may be legally taken in France, to be read as evidence in the courts
of the countries, so that in case it shall be made to appear that
such testimony is false, the witnesses so giving the same can be
punished in France for perjury.
Very respectfully, yours, &c.,
B. FARWELL. Agent United States Treasury
Department.
Opinion.
[Translation.]
The undersigned ancien avocat is of the opinion—
That the testimony of French subjects residing in France, intended to
be used as evidence in a suit pending out of France, may be taken
either by consular agents of the country where the suit is pending,
or by a French tribunal in virtue of letters rogatory, emanating
from a foreign tribunal having jurisdiction of the case;
That whatever may be the mode adopted for receiving the depositions
of witnesses, these
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depositions cannot be in France pursued as laying the foundation for
the crime of perjury, provided for and punished by the articles 361,
262, 363, 364, 365, and 366, of the penal code;
That the provisions of these articles of the code only affect
depositions taken in a civil or criminal suit pending in France;
That the taking of testimony by a foreign consular agent accredited
in France, but only delegated by foreign jurisdiction to receive the
declarations of witnesses, cannot be considered as constituting a
criminal or civil suit pending in France; it is but a step of the
proceedings taken before foreign tribunals, of which the consular
agent is the delegate or auxiliary, and it is no more the part of
the French tribunals to know the consequences of this delegation
than to know any other acts of the foreign procedure;
That the depositions received by the French tribunals in virtue of
letters rogatory, emanating from a foreign tribunal and transmitted
by the competent authority, do not constitute a suit pending before
the French tribunals;
That the execution given to this commission is neither prescribed nor
regulated by any law, and is in reality only a simple act of
courtesy, conformable to international usages, and in no way
divesting the foreign judicial authority originally having
jurisdiction;
That, furthermore, the article 361, &c, of the penal code, only
affect the depositions made in a criminal matter, or case of
misdemeanor, in so far as they may be offered in evidence in the
oral debates, and do not conflict with the depositions received
during the trial.—(Cassation/April 26, 1816; September 14, 1826.;,
April 19, 1839; July 22, 1843.)
That from that time, and under the circumstances hereafter indicated,
the American government would not be permitted to prosecute for
perjury before the French tribunals, but in virtue of the general
terms of the article 1,382 of the civil code, according to which every act of man which causes another an injury
obliges him by whose fault it happened to repair it, the
American government, after having judicially established the fact of
perjury, could show the prejudice to it resulting therefrom, morally
and materially, could pursue before the tribunals of Franee the
French person who caused this injury, and cause him to be condemned
to make reparation.
BERRYER, Ancien
Batonnier.
Deliberated at Paris, January 9,
1865.
