No. 269.
Mr. Nicholas
Fish to Mr. Fish.
United
States Legation,
Berlin, July 27, 1874.
(Received August 13.)
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.
Foreign
Office, Berlin,
July 25, 1874.
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.
United
States Legation,
Berlin, July 27,
1874.
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.
