Office of the Historian

No. 10.

Department of State,
Washington, April 15, 1872.

[Circular No. 21.]

To the Diplomatic and Consular Officers of the United States:

Letters rogatory for the purpose of taking the testimony of persons residing in the United States, which may be material in suits pending [Page 9] in the courts of foreign countries, are frequently sent to this Department, usually with a note from the minister for foreign affairs of the foreign country or from its diplomatic representative here, requesting that the business may be attended to. It is not, however, the province of the Department of State to dispose of matters of this kind. Frequently witnesses whose testimony is sought reside in places far from this city, rendering it impracticable to have the testimony taken within the time at which it is required, in order to make it available.

It is, therefore, deemed advisable to issue this circular, to which are appended the acts of Congress regulating the taking of testimony in such cases. Other-information upon the subject, which will be found useful to persons interested, is contained in the following

directions.

The circuit courts of the United States are held in each of the States, and at the points in each State where the circuit court is held there is established permanently a clerk’s office, so that in addressing a communication to that tribunal, the proper form would be, “To the Circuit Court of the United States for the State of ——.”

United States courts are held in Maine, at Portland; in New Hampshire, at Portsmouth and Exeter; in Massachusetts, at Boston; in Rhode Island, at Newport and Providence; in Vermont, at Windsor and Rutland; in Connecticut, at New Haven; in New York, at Canandaigua, Albany, Utica, and the cities of New York and Brooklyn; in New Jersey, at Trenton; in Pennsylvania, at Philadelphia and Pittsburgh; in Delaware, at New Castle; in Maryland, at Baltimore; in West Virginia, at Lewisburgh; in Virginia, at Norfolk; in North Carolina, at Raleigh; in South Carolina, at Charleston; in Georgia, at Milledgeville; in Florida, at Apalachicola, Tallahassee, Saint Augustine, and Pensacola; in Alabama, at Mobile; in Louisiana, at New Orleans; in Mississippi, at Jackson; in Texas, at Galveston, Brownsville, Austin, and Tyler; in Ohio, at Cleveland and Cincinnati; in Michigan, at Detroit and Grand Rapids; in Kentucky, at Frankfort, Covington, Louisville, and Paducah; in Tennessee, at Knoxville, Nashville, and Memphis; in Indiana, at Indianapolis; in Illinois, at Chicago and Springfield; in Wisconsin, at Milwaukee and Madison; in Minnesota, at Saint Paul; in Iowa, at Des Moines; in Missouri, at Saint Louis and Jefferson City; in Kansas, at Topeka; in Arkansas, at Little Rock; in California, at San Francisco; in Oregon, at Portland; in Nevada, at Carson City.

There is also at least one district court in each State. In many of the States there are two, and in some three. When a State is composed of two districts, they are in some States called northern and southern; in others eastern and western; in one northern, southern, and eastern; in another northern, middle, and southern; and in another eastern, middle, and western.

The clerks of these courts, respectively, are authorized by the laws of the United States to take depositions, and may, with propriety, be designated as commissioners for that purpose in letters rogatory, which, when returned, are to be used in the courts of foreign countries. The letters rogatory may be addressed to the judge of either the circuit court of the United States for the State of—, or the district court of the United States for the District of—, (naming the State,) praying the judge of that court to name and appoint the commissioner, or such letters may be addressed to the commissioner directly.

The letter or package should in all cases be directed to the clerk of [Page 10] the district or circuit court to which the letters rogatory are addressed. The clerk’s office is at the place where the court holds its sessions.

I am, your obedient servant,

HAMILTON FISH.

AN ACT to facilitate the taking of depositions within the United States, to he used in the courts of other countries, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the testimony of any witness residing within the United States, to he used in any suit for the recovery of money or property depending in any court in any foreign country with which the United States are at peace, and in which the Government of such foreign country shall he a party or shall have an interest, may be obtained to be used in such suit. If a commission or letters rogatory to take such testimony shall have been issued from the court in which said suit is pending, on producing the same before the district judge of any district where said witness resides or, shall be found, and on due proof being made to such judge that the testimony of any witness is material to the party desiring the same, such judge shall issue a summons to such witness, requiring him to appear before the officer or commissioner named in such commission or letters rogatory, to testify in such suit. Such summons shall specify the time and place at which such witness is required to attend, which place shall be within one hundred miles of the place where said witness resides or shall be served with said summons.

  • Sec. 2. And be it further enacted, That if any person shall refuse or neglect to appear at the time and place mentioned in the summons issued, in accordance with this act, or if, upon his appearance he shall refuse to testify, he shall be liable to the same penalties, as would be incurred for a like offense on the trial of a suit in the district court of the United States.
  • Sec. 3. And be it further enacted, That every witness who shall appear and testify, in manner aforesaid, shall be allowed and shall receive from the party at-whose instance he shall have been summoned, the same fees and mileage as are allowed to witnesses in suits depending in the district courts of the United States.
  • Sec. 4. And be it further enacted, That whenever any commission or letters rogatory, issued to take the testimony of any witness in a foreign country, in any suit in which the United States are parties or have an interest, shall have been executed by the court or the commissioner to whom the same shall have been directed, the same shall be returned by such court or commissioner to the minister or consul of the United States nearest the place where said letters or commission shall have been executed, who, on receiving the same, shall indorse thereon a certificate, stating the time and place when and where the same was received; and that the said deposition is in the same condition as when he received the same; and he shall thereupon transmit the said letters or commission, so executed and certified, by mail to the clerk of the court from which the same issued, in the manner in which his official dispatches are transmitted to the Government. And the testimony of witnesses so, as aforesaid, taken and returned, shall be read as evidence on the trial of the suit in which the same shall have been taken, without objection as to the method of returning the same.
Approved March 3, 1883.

AN ACT to prevent mistrials in the district and circuit courts of the United States, in certain cases.

Sec. 2. And be it further enacted, That where letters rogatory shall have be [been] addressed from any court of a foreign country to any circuit court of the United States, and a United States commissioner designated by said circuit court to make the examination of witnesses in said letters mentioned, said commissioner shall be empowered to compel the witnesses to appear and depose in the same manner as to appear and testify in court.

Approved March 2, 1855.