No. 274.
Mr. Davis
to Mr. Fish.
Berlin, October 30, 1874. (Received November 14.)
Sir: I asked Mr. von Bülow at the foreign office to-day when an answer might be expected to the representations respecting the right of consuls to take testimony, which I had made under your instructions on the 7th of last month. I said to him that commissions from the courts of the United States in some important cases were now in the hands of consuls awaiting the decision of this government.
He answered that Mr. von Schlözer had been instructed a fortnight ago to communicate the answer of this government; that when the testimony of Germans should be required the consuls would not be permitted to act as judges, but that the courts of Germany would facilitate the execution of the commissions in the presence of the consuls. And he [Page 461] added that in the particular ease which had given rise to the discussion he was satisfied that the complaining Germans were in the wrong.
I replied that as the case had been transferred to Washington I should leave it to my Government to reply; but that, without entering on a discussion, I would take the liberty to call his attention to the fact that consuls were never in such cases made “judges;” that they were merely scribes, appointed by the courts, not as consuls, but as Americans residing at a convenient distance from the witnesses, to reduce to form the evidence, which would be subsequently passed upon by judges in America. And I repeated that this was no new custom; that it had existed from the commencement of the Government.
He spoke of attempts by consuls to compel Germans to appear before them. To which I replied that no such authority was claimed; that it was optional with all the witnesses whether they would appear or stay away.
I have, &c.,