No. 272.
Mr. Fish to Mr. Nicholas Fish.

No. 698.]

Sir: Referring to Mr. Bancroft’s dispatch No. 599, inclosing a copy of a note addressed to him by Mr. von Bülow in reference to an order issued out of the district court for the southern district of New York, naming certain consuls of the United States to take testimony in an action therein pending in behalf of the Government, against the firm S. N. Wolff & Co., and to your dispatch No. 9, inclosing a second note from Mr. von Bülow on the same subject, I now inclose you a copy of a letter addressed to this Department by the Attorney-General, with a copy of a letter from Mr. Bliss, the United States district attorney at New York, in reference to the question, and a copy of the order complained of.

It appears to this Department that the German Government has labored under a serious misapprehension in the matter.

The minister of foreign affairs objects to the taking of the desired testimony by the consuls, under the commission in question, on the ground that it is an exercise of functions by consular officers in the German Empire not warranted by Article IX of the German-American convention of December 11, 1871.

Under our system of jurisprudence, where the testimony of persons beyond the limits of the United States is desired by either party to an action pending in the courts, the same is taken on commission. For this purpose application is made to the court in which the action is pending, and when granted, a person is agreed on by the parties, or named by the court, to take the evidence, and an order is entered in the court to that effect.

Questions are prepared by each party, which are propounded to the witnesses by the person so named, or an oral examination is sometimes provided for, at which both parties are represented by counsel.

The answers to the questions are taken, and the evidence thus taken is certified by the commission named, and returned to the court to be read at the trial.

No claim is made that a consul of the United States, as such, has, by treaty or by convention, the right to take such testimony. It is no part of his official duty, nor does he act as consul in so doing. He acts in the matter as a private individual, at the request of the parties or the appointment of the court. The Government in no case takes any part in these appointments, they are made by the courts in the independent discharge of their functions as a matter of practice, and with the sole view of the administration of justice and the ascertainment of the facts of the case at issue between the parties litigant. The person named may be a subject of the German Empire, an American citizen, or may belong to any other nationality. He is selected in each particular case as an individual, who, from character, residence, or other qualification, will fairly propound the questions and certify the answers. His services are purely ministerial and entirely voluntary. He has no power to compel the attendance of witnesses or to punish them for contempt. No authority is given except to put questions and certify answers, and no other is claimed for him. The same proceedings are taken and the same rule applies in every case, whoever the parties to the action may be. The fact that the Government is a party or has an interest in the action in no respect alters the rule. It is a proceeding in the interest [Page 457] of justice, to arrive at the truth between disputed facts in an action pending in the court.

The testimony in any particular case may be necessary to save a private person, whether German or American, from penalties to which he would otherwise be liable. On the other hand, it may be required in the interest of good government here or elsewhere to punish attempted frauds upon the public revenue.

These are objects of common interest to all commercial powers, which the government of Germany from its well-known character will be the first to appreciate and to vindicate.

Upon an examination of the particular order in question, it will be seen that it provides for the taking of testimony for the benefit of either party, and from this fact and from the letter of the district attorney it will be found to be an order made for the’ benefit of both parties, and obtained by consent or upon their joint application.

So far as any objection may be made to the execution of this particular commission, therefore, by the branch house of the defendants in Germany, it appears that the order was made on the solicitation or consent of the house in New York. Any obstacle thrown in the way of the taking of this testimony by the German government amounts to a refusal to permit two parties to ascertain the truth to be used for their mutual benefit in a legal proceeding.

It is confidently believed that an explanation of the matter will be entirely satisfactory to the German government.

The United States has no desire to obtain for its consuls in Germany any authority or functions except such as rightly belong to them; and at the same time ‘this Government will be extremely reluctant to admit that a person becoming a consul of the United States is thereby excluded from privileges which are allowed to unofficial persons, or becomes disqualified for the discharge of duties to his fellow-citizens which may be performed by any other reputable person, of whatever nationality, but which are likely to be asked of him by reason of his official position, making him more likely than others to be known to those needing such services.

You will fully explain this matter to the minister of foreign affairs, and it is confidently hoped and expected that on this full explanation all objection to the action of the consuls in question will be withdrawn, and that the German government will view it as an act of comity, and in aid of the proper administration of government and justice, to facilitate the ascertainment of the facts in the case now at issue between this Government and the Messrs. Wolff. A continued objection or obstruction to such ascertainment would be the cause of very serious regret to this Government.

You may, in your discretion, read and give a copy of this dispatch, to this point, to the minister of foreign affairs, for the purpose of explanation.

Under the circumstances set out in your No. 9, your action in intimating to the several consuls the difficulties which might arise from action on their part until the matter should be adjusted, was a wise precaution, and is approved.

Should the German government withdraw the objections now raised, you will so inform the several consuls, and inform this Department by telegraph. You will also instruct the consuls, in executing any such commission, to assume no authority as consuls, and to be careful in their action to give as little offense to the German government and to its subjects as possible.

I am, &c.,

[Page 458]
[Inclosure in No. 698.]

Mr. Williams to Mr. Fish.

Sir: Referring to your letter of the 20th ultimo, inclosing a dispatch from the minister of the United States at Berlin, and other papers, I now have the honor to inclose, for your information, a copy of a letter addressed to this Department, under date of the 27th ultimo, by the United States attorney for the southern district of New York, and a copy of the dedimus potestatem issued by the district court of the United States for that district in the case of the United States vs. S. N. Wolffs al., of Ne id helm, authorizing United States consuls and their representatives to take testimony in said case.

Very respectfully, your obedient servant,

[Inclosure 1 to inclosure in No. 698.]

Mr. Bliss to Mr. Williams.

Sir: I beg to acknowledge the receipt of your favor of 21st, transmitting a copy of letter of the Secretary of State and a copy of a dispatch addressed by the minister of the United States at Berlin to the State Department, the several papers relating to an order to take testimony issued by the district court for this district.

In reply to your inquiry, I beg to say that the United States has a suit pending against the firm of Wolff & Co., to recover about $75,000 penalties for alleged undervaluation in the importation of goods to this port. In that suit both parties desire to procure the testimony of persons residing in various places in Europe. It was therefore agreed between the respective attorneys that an order should be entered, allowing the testimony to be taken orally at places named. It has long been the practice in this district to designate as commissioners to take testimony in foreign parts the persons who, from time to time, happen to be the consuls of the United States at the places where the testimony is to be taken, and in this case the parties agreed that this course should be followed. The consuls are not, in such case, supposed to act as consuls, but to act as commissioners, agreed upon by the parties, having, of course, no power to compel the attendance of witnesses, unless the head authorities choose to grant it, which some countries do and others do not.

I inclose a copy of the order issued in this case. You will perceive that it is an authority to the persons named to take the testimony. Nothing is required of them, as seems to be supposed, and they can, of course, refuse to act. As they are paid for their services, they are, however, usually quite willing to act.

I may be permitted to add that, though the order is, in form, issued upon my motion, it was really issued by consent of parties.

Your obedient servant,

United States Attorney.

Hon. Geo. H. Williams,

[Inclosure 2 to inclosure in No. 698.]

order of the court.

At a stated term of the United States district court for the southern district, of New York, held at the United States court building in the city of New York, on the 13th day of April, 1874: Present, the honorable Samuel Blatchford, the district judge.

The United States }
S. N. Wolff et al.

On reading and filing affidavit of plaintiff’s attorney and notice of motion, with proof of due service thereof on attorneys for the defendant, Alphonse de Riesthal, [Page 459] who only has appeared herein, George Bliss, esq., appearing for the plaintiff, and W. J. A. Puller, esq., for the defendant, Alphonse de Riesthal:

It is, on motion of George Bliss, esq., United States attorney, ordered that a dedimus potestatem he issued in this cause out of this court, directed to the United States consul and to such deputy or representative of said consul as may he authorized by him to act in his place and stead, at the following-named places, respectively, viz: To E. P. Beauchamp, United States consul at Aix-la-Chapelle, (Aachen,) Germany, and his deputy or representative; to W. P. Webster, United States consul at Frankfort-on-the Main, and his deputy or representative; to H. Kreisman, United States consul at Berlin, Prussia, and his deputy or representative; to J. A. Stuart, United States consul at Leipzic, Germany, and his deputy or representative; to Daniel McM. Gregg, United States consul at Prague, Austria, and his deputy or representative; to S. H. M. Byers, United States consul at Zurich, Switzerland, and his deputy or representative; to examine the following-named persons under oath as witnesses herein, viz: A. Amberg and the person or persons composing the firm of A. Hirsch & Co., of Cassel, Germany; S. N. Wolff, of Neidheim, near Cassel, aforesaid; the person or persons composing the firm of Lüttger Brothers, of Petersmühle, near Solingen, Germany; Carl Auferniann, of Losenbach, near Liedenscheid, Germany; V. T. Pospichel, of Wiesenthal, Bohemia; and the person or persons composing the firm of Leopold Czech & Co., of Haida, Bohemia; the person or persons comprising the firm of E. Kreimer & Co., Berlin, Prussia; W. Wagner, jr., of Plattenberg, Switzerland, and T. L. Lurman, and J. W. Maes, of Iserlohn, Germany.

It is further ordered that the examination above provided for shall take place during the months of July and August, 1874, and at such times within said months as is hereinafter designated.

It is further ordered that either party to this action shall have liberty to examine not only the witnesses herein named, but any other witnesses that either party may desire to examine at the aforesaid places of Aix-la-Chapelle, Frankf or t-on-the-Main, Berlin, Leipzig, Prague, or Zurich, before either of the persons herein authorized to take testimony; provided, however, that the names of said witnesses and their places of residence shall be given to the attorney of the opposite side in New York, before June 6, 1874, or such notice be given in Europe to the opposite counsel acting there for either party to this action, in either of the aforesaid places of Aix-la-Chapelle, Frankf ort-on-the-Mam, Berlin, Leipzig, Prague, or Zurich, where such other witnesses are to be examined, two days before such examination.

It is further ordered, that prior to June 6, 1874, the attorneys for the respective parties shall give notice in New York, each to the other, of the names and European address, for the last week in June, 1874, of the counsel for the respective parties who are to take testimony under this commission.

It is further ordered that the examination of witnesses shall be had at the following places in the following order, and not otherwise, viz: first, at Aix la-Chap el le, next at Frankfort-on-the-Main, next at Berlin, next at Leipzic, next at Prague, and last at Zurich; that four weeks shall elapse between the examination of witnesses at Prague and Zurich; that the examination shall commence at Aix-la-Chapelle on the 6th day of July, 1874, or within two days thereafter; and that no examination shall be had of witnesses at any place after the examination has been finished at that place, or the examination of witnesses commenced at another place.

It is further ordered that the counsel for the plaintiff shall have with him at any and all said examinations of said witnesses, or either of them, all the original invoices mentioned in the declaration herein, or copies or duplicates thereof, and which are in the possession of the plaintiff, and that counsel for defendant shall have full and free inspection thereof, and liberty to take copies of the same.

It is further ordered that all directions herein contained as to time, place, order, and manner of examination of said witnesses may be changed or modified by the written consent of the counsel for the respective parties in Europe or in New York.

It is further ordered that the examination of all witnesses under this commission shall be oral, and taken by question and answer, in the usual manner of taking oral depositions, by examination, cross-examination, and redirect examination; that the testimony given under such examination shall be reduced to writing, signed by the witnesses, and certified by the commissioners respectively, and by them transmitted by mail to the clerk of this court at the city of New York, unless otherwise mutually agreed upon by said counsel for both parties.

It is further ordered that all testimony taken under the commission provided for herein shall be taken subject to all legal objections at the trial of this action.