No. 249.
Mr. Fish
to Mr. Schlözer.
Washington, December 9, 1874.
Sir: On the 16th of November last I had the honor to receive your note of the 13th* of that month, communicating an instruction which the imperial foreign office had directed to you, in reference to the objections which had been interposed by the German government to the obtaining of the testimony of certain parties resident in Germany, to be used in a suit pending in this country in behalf of the Government of the United States against the German house of S. N. Wolff & Co.
Although the instruction amounts to a courteous but practical denial to the customary practice under the legal system of the United States of the facilities whereby their courts are accustomed to seek the evidence on which they are to determine the contested rights submitted to them in the administration of justice, still I am bound to recognize the right of a sovereign state to deny such facilities, within its limits, to the courts of another state. At the same time it is hoped that, on a review of the question, it will be perceived that no invasion of the sovereign lights of a government, no harm to its dignity, and no inconvenience to its citizens or to its officers or its tribunal can result from an extension of comity that will allow to the judicial system prevailing in this country and in England the exercise of that mode of seeking the facts involved in a litigation pending in their courts, which the experience of a long series of years has shown to be the more convenient, the less expensive, and wholly free from interference with the supreme rights of a state.
The instruction, substantially but not perfectly, presents the system prevailing in this country, derived mainly from the “common-law” system of England, for the attainment of the facts and the truth of any case to be judicially decided. The Government with us lends its aid, so far as it can do it practically, to the eliciting of the facts of every case, with respect to which its courts are called upon to determine and administer justice; and believing that a full knowledge of the truth, as contested between litigants, is essential to the administration of justice, it grants as an act of courtesy as well as of justice the power to compel the attendance of witnesses, and requires them to testify, under oath, in any suit for the recovery of money or property depending in any court [Page 574] in-any foreign country with which the United States are at peace, and in which the government of such foreign country shall be a party, or shall have an interest.
It allows the testimony to be taken, either under a commission or letters rogatory, as the judicial procedure of such foreign country, or its policy, may dictate and prescribe, in its own forms of the administration or pursuit of justice, and in either case it affords to such friendly government the means whereby to obtain the evidence which is sought from witnesses within its limits. Its own citizens, equally with resident aliens, are made amenable to its process, in aid of such friendly power seeking to recover what it may consider to be due to it, in money or property, by the evidence which those citizens or aliens may be supposed able to furnish.
I subjoin hereto an extract from the statutes of the United States on this point.
These facilities have been voluntarily extended by the United States to the governments with which it is in amity, in full knowledge, and because of the fact so correctly and forciby presented in the dispatch of Mr. Yon Bulow, that they cannot be enjoyed except under such limitations and restrictions as may be provided by treaty stipulations or (as in the case with the United States) are prescribed by the legal system in force in each country. They are a voluntary contribution on the part of the United States to the comity of nations and to the administration of justice, and toward the attainment of the rights of every other power with which they are at peace.
The facilities thus given to friendly powers, in suits in which such powers are parties, or are interested, are also, by the judicial practice of the several States, generally or largely accorded also in suits in which individuals, citizens, or subjects of such States are parties, and have been and are constantly availed of by Germans as well as individuals of other nationalities.
With regard to the proceedings in the case in which the United States were endeavoring to obtain testimony in a suit wherein it was seeking to recover a large amount supposed to have been fraudulently withheld by a German house, the commission was addressed to consuls, not in their official capacity as consuls, but because of their being known, and of the assurance of a probability of their presence at or near the points where the witnesses were residing. They had no authority to attempt the compulsory attendance of any witness. The commission was issued with the expressed assent of the consul representing the defendants in the suit; there was no attempt to extend what are termed, “the exceptional priviteges granted to consuls of the United States by the consular treaty between Germany and America,” nor “to limit the operation of the laws” of the country in which the commission was to be executed; and the assent of the attorneys of the defendants to the issuing of the commission, and the provision for taking testimony on behalf of the defendants, and for the presence of the counsel of the parties if desired, anticipated the objection stated by Mr. Von Bulow that German law allows the parties to be represented at the examination.
I observe that Mr. Yon Billow remarks that they “objected not so much to the taking of sworn testimony by American consuls in their official capacity, as on general principles to the actual examination of witnesses by American commissioners within the limits of the German Empire.”
I have stated that there was no desire or attempt to take testimony “by American consuls in their official capacity.”
[Page 575]Mr. Von Billow states that, in the present case, “now pending in the southern district court at New York, the German courts, in whose districts the persons to be examined as witnesses reside, will immediately comply with any request that may be addressed to them by the aforesaid American court and American commissioners, or any other duly-authorized representative of the parties will be at liberty to be present at all times fixed by the competent German courts, and to put to the witnesses, through the presiding judges, any questions to which an answer under oath may be important or desirable for the decision of the court at New York.”
This is confined to one pending suit, whereas the previously-cited objection was “on general principles to the actual examination of witnesses by American commissioners,” and makes it desirable to know whether the objection “on general principles” will be enforced in case the administration of justice in the courts of the United States shall, in some other case, find itself in need of the evidence of witnesses residing in Germany.
The intelligent minister of Germany to the United States is aware of the multitudinous cases arising from the intimate commercial and social relations happily existing between the two countries, and of the consequent frequency of cases in which the testimony of parties residing in either country is essential to the determination of rights in the other, and will therefore appreciate the importance of an understanding of the limitations which either state may impose upon the other in the attainment of legal evidence. He is aware, also, of the promptness and of the facility with which legal evidence is furnished by the United States in response to the frequent requests made therefor by all foreign powers, to determine the fact, the date, or the circumstances of the death of parties in the United States, to determine successions or other questions of interest to the citizens or subjects of such powers, or to the powers themselves. The agents and officers of the Government are freely and cheerfully employed to obtain the evidence desired, which is furnished as an act of international comity, and in no instance has the application been obstructed on the ground that it must be made through the courts of this country, or has any internal legal system been interposed as an objection to the request made.
If the German government decide that in no other form than that of “requisitions,” analogous to the cumbrous forms known to the common law of England as “letters rogatory,” (which are recognized by the laws of the United States because of their being known to the laws and the practice of some other countries,) will it allow the evidence of witnesses residing in the German Empire to be taken for Use in suits pending in the United States, the latter do not contest the right to impose such limitation.
It seems, however, to the United States that such limitation is in restraint of the administration of justice, by a constrained subjection of the proceedings in the courts of one country to the judicial system of another, perhaps at entire variance, in its forms of procedure, and especially in its mode of examining witnesses; and that the principle so aptly stated by Mr. Von Bülow that the courts of all countries are bound to assist each other in the execution of law and the attainment of justice,” is but partially enforced when the legal system of one country limits and confines the search for only the truth, in the administration of justice under the judicial system of another, to the technical formalities of its own.
The experience of the United States, since its existence as an independent [Page 576] power, of the practical working of the system which prevails in this country, and also in England, of affording every facility lor the obtaining of the evidence of witnesses when without the actual jurisdiction of the court in which is pending the suit wherein their testimony is important, by means of commissions rather than by letters rogatory, attests the greater convenience of the former, and the entire absence of any resulting danger to the parties litigant, to the witnesses, or to the state. The evidence thus obtained is taken in the form suited to the judicial system of the court which is to pass upon it, while much expense and delay is generally avoided.
It is hoped that the German government may see fit to relax (what is recognized as within the abstract right of every government) the rigid rule of confining the courts of the United States, in search of testimony needed from witnesses in Germany, to its own tribunals, as the only channel through which it is to be obtained.
Should it, however, be desired to adhere to the course indicated by Mr. Yon Billow, the courts in the United States should be apprised of the rigidness of the rule, which will (as in the case which has given rise to this correspondence) be apt to arrest the course of justice, owing to the unadvised adoption of the system of commissions, which obtain so generally, and which has hitherto been supposed to be free from the objections of any government.
Accept, &c.,