Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 7, 1874
No. 277.
Mr. Schlözer to Mr. Fish.
Washington, November 13, 1874. (Received November 16.)
Sir: On the 17th of August last I had the honor of a conversation with you about the commissioners appointed by the southern district court of New York for taking testimonies under oath in Germany in the case of S. N. Wolff & Co., in New York.
On the same day I sent to my government your communications in this matter.
In the mean time the legation of the United States at Berlin entered in correspondence with the foreign office on the same question.
The position which the German government occupies in this question, [Page 463] differing slightly from that of the United States Government, I am now requested to communicate to you a dispatch which the imperial foreign office has directed to m£ on the 12th ultimo in explanation of such difference of opinion.
I therefore have the honor to inclose herewith the said dispatch, with an English translation of the same.
Accept, &c.,
Mr. von Bülow to Mr. Schlözer.
Sir: I herewith respectfully transmit for your information the inclosed note from the Secretary of State of the United States, sent by that honorable gentleman, on the 18th of August last, to Mr. Nicholas Fish, at that time chargé d’affaires ad interim here, and handed to me by the minister of the United States on the 8th of last month; it relates to the taking of testimony within the territory of the German Empire by commissioners appointed by the southern district court at New York, in the case of the custom-house there against the German firm of S. N. Wolff & Co.
The contents of this dispatch have confirmed the impressions made by your communication of August 17th, referring to your interview with Hon. Hamilton Fish, that, namely, the Government of the United States, in reviewing the position taken in this matter by the imperial government, proceeds from a misapprehension of the reasons which induced the opposition on our part to the contemplated taking of testimony under oath of subjects of Germany by commissioners appointed by the court at New York.
By communicating the following observations you will doubtless succeed to elucidate and make clearly understood those points by which the action of the imperial government is influenced in taking the position in question.
It is well known to the imperial government that the common law of England is the accepted law of the United States, and that legal proceedings based on the same permit the establishing of facts that may be essential for judicial decisions, through the appointment of commissioners, named by the respective courts at the request of the contending parties, these commissioners having certain well-defined powers, which extend to the taking of depositions under oath.
From this it follows as a natural consequence that every court within the jurisdiction of the United States is competent to appoint commissioners for taking such testimony, within every other judicial district of the country, or even to appoint them within such other districts, and also that similar proceedings for the taking of testimony may take place in the different States, and which may be of importance to the decisions of foreign, that is, courts outside of the United States.
If, however, as in the present case, the system for taking testimony is to be put in force in a foreign country, in a country not belonging to the United States, then, according to international law, it can only take place with such limitations and under such restrictions, if not otherwise fixed and arranged by treaty stipulations, as is provided by the existing law-forms of the respective foreign countries.
The imperial government feels assured to be in accord with the United States with regard to the general bearings of this matter, as well as also of entertaining identical views, so that any action arising out of this question can in no wise be influenced by the intentions or possible declarations of either party involved in such litigation, so that any injury to the one or the other might be the consequence.
Now, as regards the putting into practice this legal process for obtaining testimony under oath within the territories of the German Empire, it is admissible according to the laws in force in Germany, and it has not been objected to by the imperial government, that commissioners appointed by courts in the United States may obtain information and make inquiries, provided that the persons who are not American citizens and who give such information do so voluntarily, and that they are protected in so doing.
While, however, the legal system of the United States, as already stated, permits commissioners to act independently in taking testimony under oath, it belongs, according to German law, and according to the laws of the different states constituting the German Empire, exclusively to the jurisdiction of their own proper courts.
This legal fact puts that limit to the action of American commissioners in Germany to which it was the duty of the imperial government to call the attention of the legation of the United States after it had been informed of the appointment of such commissioners by the southern district court at New York with instructions to ascertain certain facts in Germany by their taking testimony under oath.
[Page 464]The circumstance that in this special case consuls, were appointed to act as such commissioners, seemed to make it the duty of the imperial government to emphasize, more particularly, that even the exceptional privilege extended to United States consuls by the German-American consular treaty for taking testimony under oath is expressly confined to individuals belonging to their own nationality.
Here also cannot exist any difference of opinion, as if the powers and duties conferred by the American courts on such a commission could enlarge the sphere of action of American consuls, as established by treaty, or work prejudice to the laws of this country.
Our objection, therefore, was not so much to the taking of testimony under oath by American consuls in their official capacity, but against the taking of testimony by American commissioners within the limits of the German Empire altogether, it being incompatible with the legal system of this country.
Nothing was further from the wishes of the imperial government than to throw any obstacles into the way of those very honorable gentlemen appointed by the Executive of the United States as consuls, and who may seem peculiarly fit to exercise the functions of commissioners, or to make it any way more difficult for them to act, only that the imperial government was most anxious to show to the United States the consideration due to them by preventing any acts of American consuls within the territory of the empire, as were ordered by American courts; we drew the attention of the American legation to the fact that the peculiar and exceptional treaty privileges of American consuls did not extend to the taking of testimony under oath so far and in such manner as seemed clearly the intention of the commission appointed by the court at New York.
I will here not fail to state with much satisfaction that in consequence of our statements to the United States legation, as far as any information has reached me, no time has ever been fixed in this case by the commissioners appointed to take testimony under oath within the territories of the empire.
The limitation alluded to before, as put on the action of American commissioners within the German empire, does by no means prevent the carrying out of such interrogations under oath as may be required by the interests of any cause pending before American courts.
The German courts, no less than those of America, recognize under the sanction of German law the principle that the law-courts of all countries are bound to each other to assist in executing law and obtaining justice. They, therefore, make it a practice to comply very cheerfully—without any treaty obligations to that effect—with any requests made by foreign courts of law for the examination under oath of certain designated persons about facts and circumstances. Analogous to such demands, which we call “requisitions,” are the “letters rogatory,” known to the common law of England, and sanctioned by legislative enactments of the United States.
They afford the proper means to harmonize with our institutions and laws any necessity of American courts or of parties to lawsuits pending before such courts for the taking of testimony in Germany.
The German law permits, moreover, that in examinations of witnesses, brought about in this manner, the parties may be represented, and their attorneys are at liberty to exercise a proper influence by putting questions through the judges.
In the present case, therefore, pending in the southern district court of New York, the respective German courts, within the jurisdiction of which the persons to be examined under oath live, will without any delay comply with all requirements that may be made of them by the said American court; and the American commissioners, or other duly authorized parties, will be at liberty to be present at all times fixed by the competent courts, and to put to these witnesses all such questions, through the respective judges, to which an answer under oath may be of importance or desirable to the court at New York for its judicial decision.
In requesting you respectfully to communicate to the Secretary of State of the United States the foregoing remarks, I feel assured in the conviction that the Hon. Hamilton Fish will recognize the reasons which have been decisive for our stand-point, and he, therefore, will not only acknowledge the lawful and actual necessity of the objection made by the imperial government to the carrying out without any limit of the powers conferred on commissioners appointed by the southern district court at New York, but that the honorable Secretary will also become convinced of the erroneous conclusions regarding the maintenance of our objections, which contains his dispatch of August 18 to the United States legation here.
The honorable Secretary of State will, it is hoped, be convinced that the imperial government could never contemplate to put difficulties into the way of executing law and justice; that, however anxious and earnest to oblige the Government of the United States, it must do its duty in preserving the lawfully established competency of the German courts.
The chancellor of the empire, represented by