No. 272.
Mr. Fish
to Mr. Nicholas Fish.
Department
of State,
Washington, August 18,
1874.
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.
Department of Justice,
Washington, August 4,
1874.
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,
GEO. H. WILLIAMS,
Attorney-General.
[Inclosure 1 to inclosure in No.
698.]
Mr. Bliss to Mr.
Williams.
Office
of the District Attorney of the United States for the
Southern District of New York,
New York, July 27,
1874.
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,
GEORGE BLISS,
United States
Attorney.
Hon. Geo. H. Williams,
Attorney-General.
[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 |
} |
| vs. |
| 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.
