No. 269.
Mr. Nicholas Fish to Mr. Fish.

No. 9.]

Sir: Referring to Mr. Bancroft’s dispatch No. 599, of the 26th of June, I have the honor to transmit herewith a note of Mr. Von Bülow upon the same subject, together with a copy of my reply.

The language of the note of Mr. Von Bülow is such as to indicate a very firm determination to prevent the performance of such acts by our consular officers.

If this intention should be carried out it may cause very serious embarrassments to our system of consular verification of invoices. Mr. Von Bülow does not state whether the objection extends to the taking of testimony of German subjects who appear and testify without opposition on their part. In the expectation of your reply to Mr. Bancroft’s question I have not asked the views of this government on this point.

According to the consular regulations, in the execution of a commission to take testimony the consular officer acts simply as a citizen of the United States. The question thus arises as to how far he can be held liable in his official capacity for such action.

I hope I may receive the views of the Department at an early day, as the government here seems anxious to have the question determined.

In regard to the particular case that has led to the correspondence, I have written to each of the consular officers mentioned therein, except to the consul-general in Berlin, intimating to them the difficulties any further action on their part might create.

In the case of Consul-General Kreismann, I have communicated the same verbally.

I remain, &c.

[Inclosure 1 in No. 9.—Translation.]

Mr. von Bülow to Mr. N. Fish.

The undersigned has heretofore, under date of the 24th ultimo, had the honor to make known to Mr. George Bancroft that, according to reliable information, it was intended, in pursuance of a judicial order of the United States district court of New York, to take the testimony of a number of German citizens or their representatives, through the instrumentality of the American consuls at Aix-la-Chapelle, Frankfort-on-the-Main, Berlin, and Leipsic, assisted by commissioners sent to Europe for this purpose, in the matter of an action instituted by the customs authorities in New York against a branch house in that city of the firm of S. N. Wolff & Co., of Cassel. He at the same time expressed the hope that that communication would suffice to prevent the actual exercise of the functions claimed for consular officers in the German Empire [Page 454] in the said judicial order, hut not warranted by the provisions of Article IX of the German-American convention of December 11, 1871.

The undersigned has not been favored with an answer thereto. On the other hand, intelligence has just reached him that the vice-consul of the United States at Barmen, Mr. Ernst Greef, accompanied by Mr. Roger M. Sherman, assistant United. States attorney, southern district of New York, had presented himself on the 16th instant at the bureau of the steel and copper-ware manufacturers, Brothers Lüttger, at Petersmühle, and on the 18th instant to Mr. F. C. Lurmann. at Iserlohn, in order to take the testimony of the representatives of these firms in reference to certain facts bearing upon said action. True, in both instances the information demanded was refused, but in both instances the vice-consul of the United States had notified the above-named gentlemen that citations before the American consulates at Aix-la-Chapelle and Frank-fort-on-the-Main, respectively, would be issued against them at an early day.

In one instance the matter had been carried so far that it was intimated that a refusal to give the desired information would entail upon the respective firm increased difficulty in the transaction of its American business.

To the undersigned it seems indubitable that in accordance with the said consular convention, American consular officers are only entitled throughout the German Empire to take the testimony of citizens of the United States within the bounds prescribed in Article IX, and that all official action exceeding the limitations contained therein appears to be a trespass irreconcilable with the lawful rights and duties of the German authorities.

Instructions will therefore be immediately issued to the competent tribunals to cause investigation to be made into the action of the above-mentioned American vice-consul at Barmen, as well as into the proposed official proceeding of the above-mentioned consulates, and to make report of the result of said investigation.

The undersigned, while he has the honor to bring the above to the notice of Mr. Fish, cannot of course claim to be in possession of an accurate knowledge of the facts of the case, established by both sides.

These complaints of German citizens are, however, probably not without foundation in fact, and in this case, the matter being as urgent as his desire is sincere and earnest to see every occasion for a difference of opinion “avoided, he takes the liberty to request the chargé d’affaires on his part to consider what is proper to be done to provide against the consequences to the said consular officials necessarily following the transcending of their functions as limited by treaty and exequatur.

Respectfully awaiting an answer to this note, the undersigned gladly avails himself of this occasion to renew, &c., &c.

[Inclosure 2 in No. 9.]

Mr. Nicholas Fish to Mr. von Bülow.

The undersigned, chargé d’affaires of the United States of America, has the honor to acknowledge the receipt of the note of his excellency Mr. von Bulow, secretary of state for foreign affairs, of the 25th instant, and he finds from the archives of the legation that the note of his excellency of the 24th ultimo was referred by Mr. Bancroft to his Government.

There has not yet been time for a communication in return, and, as the undersigned is without any exact or official knowledge of the case, he has referred the note which he himself received in like manner.

In the mean time the undersigned, sharing as he does most fully the desire expressed by his excellency to see every occasion for a difference of opinion avoided, believes that the views of his Government, which he will have the honor hereafter to transmit, will be conceived in like spirit.

The undersigned feels persuaded that the actual facts in the case, when ascertained, will show that whatever may have been done in the premises by the consular officers of the United States has been done under an order of a court of law of the United States and for the sole object of subserving the cause of truth and justice.

The undersigned gladly avails himself, &c.