to Mr. Nicholas Fish.
Washington , August 18, 1874.
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.,