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shall be liable to the same penalties as would be incurred for a like offense on the trial of a suit in the district court of the United States.
SEC. 4074. Every witness who shall so appear and testify shall be allowed, and shall receive from the party at whose instance he shall have been summoned the same fees and mileage as are allowed to witnesses in suits depending in the district courts of the United States.
SEC. 875. When any commission or letter rogatory, issued to take the testimony of any witness in a foreign country, in any suit in which the l'nited States are parties or have an interest, is executed by the court or the commissioner to whom it is directed, it shall be returned by such court or commissioner to the minister or consul of the l'nited States nearest the place where it is executed. On receiving the same, the said minister or consul shall indorse thereon a certificate, stating when and where the same was received, and that the said deposition is in the same condition as when he received it; and be shall thereupon transmit the said letter or commission, so executed and certified, by mail, to the clerk of the court from which the same issued, in the manner in which his official dispatches are transmitted to the Government. And the testimony of witnesses so taken and returned shall be read as evidence on the trial of the suit in which it was taken, without objection as to the method of returning the same. [When letters rogatory are addressed from any court of a foreign country to any circuit court of the United States, a commissioner of such circuit court designated by said court to make the examination of the witnesses mentioned in said letters, shall have power to compel the witnesses to appear and depose in the same manner as witnesses may be compelled to appear and testify in courts. ]
In a dispatch to Mr. Blaine, of Oct. 9, 1889, Mr. Lincoln, United States minister at London, made, in regard to the foregoing circular, the following suggestions (H. Ex. Doc. 281, 51 Cong. 2 sess. 18):
“ I have the honor to suggest a reconsideration of the terms of the abovementioned circular of March 25, 1887, giving directions for the information of those desiring to procure the issuance of letters rogatory to obtain the testimony of persons residing in the United States to be used in suits pending in the courts of foreign countries.
" Whether or not it is required by section 4071 of the Revised Statutes that such letters shall be addressed to the district court of a named district, it would seem that if such letters invoke the aid of a circuit court, it is contemplated by section 8755 that they should be addressed to the circuit court of a named circuit, and the directions of the circular suggests the designation of the court by the name of its circuit or district, as the case may be. I beg to point out that those directions give a form of address which, as to eighteen States, would describe no court known under our laws. For example, under the circular, letters to obtain the testimony of a witness residing in Chicago would be moved from a foreign court addressed 'to the judge of the circuit (or district) court of the United States for the State (or district) of Illinois, although there is actually no court bearing either of those titles. In such a case, at the present time, the letters should be addressed to the judge of the circuit (or district) court of the l'nited States for the northern district of Illinois, in order that the execution of the commission might, upon its return to the foreign court, appear by the seal of the United States court to have been executed under the jurisdiction of the court to which it was directed.
" By reason of the frequency of statutory changes of the territorial limits of the Federal judicial districts, no circular could for more than a short time be safely used without examination as to subsequent legislation, and I think no such circular would be of practical use at any time which did not contain a reprint of chapter 1 of Title XIII of the Revised Statutes (second edition) corrected to show legislative changes made since the Forty-fourth Congress, so that upon the county of residence of the proposed witness being given, the judicial district including it may be found by using, in the case of States having more than one district, a map showing counties. Neither such maps nor our latest statutes are easily found abroad, unless at our legations, and if they were, in the nature of the case, they could hardly be used by a foreigner in connection with a circular, with the feeling of certainty important to the matter in hand.
** The information as to the territorial limits of the Federal judicial districts, which I have suggested as being essential in a useful circular, is already compiled in an American publication, 'Desty's Federal Procedure,' a late edition of which is easily to be had. With that book and the maps and the latest volume of statutes now in the library of this legation, any inquiry made here as to the proper address for letters rogatory in respect to a witness whose postal address in the United States is given could be answered at the legation with little trouble.”
The circular of March 5, 1887, and particularly the sections of the Revised Statutes accompanying it, are referred to in Mr. Sherman, Sec. of State, to Ur. Grip, Swedish min., Jan. 21, 1898, MS. Notes to Swedish Leg. VIII. 77; Mr. Adee, Acting Sec. of State, to Señor Pulido, Venez, min., Aug. 21, 1900, MS. Notes to Venez. Leg. II. 49.
• I have the honor to acknowledge the receipt of your note of the Sth instant, accompanied by five Rogatory Commissions addressed by the Civil Tribunal of Valparaiso to the Probate Court of San Francisco, California.
“ You request that this Department will take the proper course with these commissions and that, when executed, they may be forwarded to your legation.
In reply I have the honor to inform you that the commissions will be sent to the attorney of the United States at San Francisco with a letter requesting him to attend to them. As much time would be saved by their sending them directly to Chile, he will also be requested to forward them thither through the United States consulate at Valparaiso.
“ It seems, however, expedient that I should take this opportunity to correct an impression which your Government seems to entertain that it is proper and usual for the Executive Government of the United States to receive and cause to have executed Rogatory Commissions from courts of justice in foreign countries. No such duty or authority is by law imposed upon or granted to the Executive Government of this country. Heretofore, as a matter of courtesy, this Department has in some instances, through United States attorneys, caused commissions rogatory to be executed. As this, however, is an irregular proceeding, it is preferred that in future the agency of this Department in the matter be dispensed with, and that courts of justice in foreign countries who may have occasion to have testimony taken here, will pursue the course prescribed by law and usage in such cases.”
Mr. Seward, Sec. of State, to Mr. Fontecilla, Chilean min., Oct. 12, 1868,
MS. Notes to Chilean Leg. VI. 169.
Notes to Chilean Leg. VI. 153; Mr. Fish, Sec. of State, to Mr. Stetson,
“ Sections 871 and 874 [Revised Statutes] authorize any Justice of the Supreme Court of the District of Columbia upon the production before him of a commission issued from a foreign Court, or a notice to the same effect according to its rules of practice, to require, under certain conditions the attendance of any witness so named, for the purpose of giving his testimony. Section 875 empowers any of the Circuit Courts of the United States, upon receipt of letters rogatory from any Court of a foreign Country, to designate one of its Commissioners to make the examination mentioned in the letters and requires the attendance of the necessary witnesses in the same manner, as when summoned to the Courts. This system of legislation would seem to afford ample facilities so far as the Government of the United States is concerned, for securing the testimony of any witness residing within its territory where the Courts of a friendly Government signify its wishes in that direction.
"As to the special legislation which the several states of this country may have adopted upon the subject, I am unable to assure you, at present, of an uniform system. In some of them, the pains of perjury are affixed to false responses in proceedings to obtain testimony upon commissions or letters rogatory from foreign Courts, and I apprehend, where no positive enactments exist the State Courts would be found as far as in their power, ever ready to heed and further an application to them of the character specified. At all events the Revised Statutes to which I have referred, would seem in this particular, to offer so extensive methods, as to be equally available independently of state laws throughout the various local governments of this country."
Mr. Frelinghuysen, Sec. of State, to Baron von Schaeffer, Aust. min.,
March 29, 1883, MS. Notes to Austria, VIII. 384.
prison in the United States, see Mr. Frelinghuysen, Sec. of State, to
“I have the honor to say that the laws of the State of New York, in regard to letters rogatory, require the letters to be presented to the court, having jurisdiction, by the consul of the Government making the request, and it would, therefore, be necessary for the Belgian consul at New York, as was pointed out in my note of August 18 last, to take the action required.”
Mr. Uhl, Acting Sec. of State, to Mr. Le Ghait, Belg. min., Feb. 17, 1894,
MS. Notes to Belg. Leg. VIII. 28.
min., Dec. 9, 1895, MS. Notes to Venez. I. 543.
* Referring to your note of June 21st last, in which you ask the intervention of the Department to secure the execution of certain letters rogatory addressed by the senior judge of the Queen's bench division of the high court of justice in England, to the President and judges of the supreme court for the city and county of New York; also to subsequent correspondence on the same subject; I have the honor to inform you that his excellency the governor of New York, in response to my letter requesting information as to what proceedings were necessary to secure the taking of the testimony desired, has transmitted to me a copy of a letter from the presiding justice of the first department of the supreme court at New York City, to whom the matter was referred by the governor. The justice expresses the opinion that the court would have no power to act upon letters from the senior judge of the English court, and he doubts the power of the New York court to appoint a commissioner even if a commission should be issued attempting to confer that power. He states that the usual practice in such cases is for a commission to issue from the foreign court in which the testimony is to be used, under its seal, appointing a commissioner in this country to take the testimony of the witness. Then our court would have the power to issue a subpæna and compel attendance of the witness. The letters rogatory are returned herewith in order that a new commission may he issued in accordance with the above."
Mr. Gresham, Sec. of State, to Sir J. Pauncefote, Brit. amib., Aug. 22,
1894, MS. Notes to Great Britain, XXII. 602.
The circuit court will issue letters rogatory for the purpose of obtaining testimony when the Government of the place where the evidence is to be obtained will not permit a commission to be executed.
Nelson v. United States, 1 Pet. C. C. 235. In this case a form of such
letters is given. See also Mexico v. De Arangoiz, 5 Duer, 634; Kuehling v. Leberman, 9
The certificate and seal of the British minister resident in Hanover is not a proper authentication of the proceedings of an officer of that country in taking depositions. It is not in any way connected with the functions of the minister, and his certificate and seal can only authenticate those acts which are appropriate to his office.
Stein 1. Bowman, 13 Pet. 209.
A court in Porto Rico issued, on April 16, 1900, an exhorto, or letter rogatory, requesting the proper judge, tribunal, or court in the city of New York to cooperate in serving upon two persons living in that city an order to appear as defendants in a suit instituted against them in the Porto Rican tribunal. The papers were accompanied with copies of the complaint in the case, which related to an easement affecting a house in San Juan, Porto Rico. The documents were transmitted to the War Department at Washington by the military authorities of the United States in Porto Rico “ for the necessary diplomatic action." The Attorney-General, to whom the, matter was referred, advised that there was nothing in the statutes of the United States or of the State of New York which invested either the Federal courts or State courts with jurisdiction to make such an order as was desired.
Griggs, At.-Gen., May 7, 1900, 23 Op. 112.
A commission was issued by a judge in Cuba to the Spanish consul
in New York to take testimony to be used in a crimiCriminal cases.
nal prosecution for swindling, and the consul thereupon applied to the district court for a summons to compel the witness to appear and testify. It was ruled that the court had no power to issue the summons asked for, the only provisions made by Congress on the subject of enforcing the giving of testimony in judicial proceedings pending in a foreign country being those found in the acts of 2 March, 1855 (10 Stat., 630), and of 3 March, 1863 (12 Stat., 769; Rev. Stat., 1071), neither of which acts applies to the case proposed.
Matter of the Spanish Consul, 1 Benedict, 225.
"As the letters rogatory which accompany your note contemplate the taking of testimony to be used in a criminal prosecution in Switzerland, it is proper that I should call your attention to the fact that it has been judicially decided that the [Federal] courts have only the power to take testimony to be used in suits for the recovery of money or property as is provided in sec. 1 of the act of March 3, 1863, relating to letters rogatory."
Mr. Bayard, Sec. of State, to Colonel Frey, Swiss min., March 13, 1888,
MS. Notes to Switzerland, I. 180. To the same effect, Mr. Adee, Act. Sec. of State, to Baron Fava, Ital.
amb., tel., Aug. 13, 1900, VS. Notes to Ital. Leg. IX. 467; and Mr. Gresham, Sec. of State, to Dr. von Holleben, German amb., July 8, 1893, MS. Notes to Germany, XI. 243.