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• I have the honor to acknowledge your communication of June 26, transmitting to me a letter from the Secretary of State at Washington, enclosing a note from the minister of Germany and letters rogatory issued by the royal Prussian district court at Konitz, for the purpose of securing the testimony of Theresia Saydack, to be used in the criminal prosecution of Michael Zimmel. Referring to this and to your request that I should advise you upon the matters contained therein, I beg to say: The Pennsylvania statute of April 8, 1833, (P. L. 308—1 Purdon's Digest, page 725, sections 6, 7, 8 and 9), provides that:
In all cases where letters rogatory shall be issued out of any court of any one of the several States composing the United States, or out of any court of any Territory of the said United States, requesting any court of common pleas in this commonwealth, to afford its aid in the examination of any witness or witnesses within the limits of the jurisdiction of such court of common pleas, it shall be competent for such court of common pleas to issue subpoenas to such witnesses as may be required by any party concerned, requiring their attendance either before such court of common pleas, or before a commissioner or commis. sioners, to be by said court of common pleas named, at a certain hour and place therein designated, having regard to the distance of such witness or witnesses, and under a penalty not exceeding one hundred dollars.
* In case of the nonattendance of any such witness or witnesses, it shall and may be lawful for such court of common pleas, on due proof of the service of the subporna, to issue process of attachment against the defaulting witness or witnesses, and thereupon the same proceedings shall be had as are used and allowed in like cases in the courts of record in this Commonwealth.
“* Any party injured by such nonattendance shall also be entitled to the same remedies at law, against the person subpoenaed, as are provided where a subpena is issued from a court of record of this Commonwealth, in a cause pending therein.
“ If any person subpænaed under this act shall attend, but refuse to testify, be or she shall be subject and liable to the same proceedings on the part of the said courts of common pleas, as if he or she had refused to testify in a cause pending in any court of record of this Commonwealth.
- It has been held in our State (McKenzie's case, 2 Parsons, 227) that the court will not inquire whether the letters rogatory are issued according to law and the practice of the court from whence they purport to come, and that when letters rogatory are regularly issued, the court will compel the witnesses to testify, and will not examine into the relevancy of the testimony.
“ It has also been held in the courts of common pleas of this State, in an opinion rendered by one of the most learned of its judges (Kuehling et al. v. Leberman, 9 Phila. 160), “that there is a very broad distinction between the execution of a commission and the procuring of testimony by the instrumentality of letters rogatory, or letters requisatory, as they are sometimes called. In the former case the rules of procedure are established by the court issuing the commission, and are entirely under its control. In the latter, the methods of procedure must, from the nature of the case, be altogether under the control of the foreign tribunal which is appealed to for assistance in the administration of justice. We can not execute our own laws in a foreign country, nor can we prescribe conditions for the performance of a request which is based entirely upon the comity of nations, and which, if granted, is altogether ex gratia.' 'We can not dictate the methods to be pursued by the court whose assistance is invoked. The rules and practice of the foreign court must be the law of procedure in such cases.'
“ It seems, therefore, that the statute of 1833, to which reference has been made, is extended to the case of letters rogatory from a foreign tribunal, and that in such cases the courts of common pleas in Pennsylvania will receive them in civil cases and enforce them according to their own prescribed methods of procedure and by their proper and usual processes. It nowhere appears, however, that this statute contemplated the taking of evidence in this way for criminal cases, nor under the direction and by the process of our courts of quarter sessions and oyer and terminer, organized for criminal jurisdiction. The taking of testimony by deposition for criminal cases is unknown to our system of jurisprudence, and section 9 of Article I. of the Declaration of Rights in our Constitution provides that in all criminal prosecutions the accused hath the right to meet the witnesses face to face.
“ I am, therefore, of the opinion that the courts of this Commonwealth are not competent to receive these letters rogatory and to enforce the testimony of this witness by deposition or answers to interrogatories, to be used in the criminal cause. I therefore advise you to return them to the honorable the Secretary of State, with this opinion."
Opinion of Mr. Hensel, Attorney-General, to Governor Pattison, of Penn
sylvania, June 30, 1893, transmitted by Governor Pattison to the Secretary of State of the United States, July 1, 1893, MS. Misc. Letters; communicated by Mr. Gresham, Sec. of State, to Dr. Von Holleben, German amb., July 8, 1893, MS. Notes to Germany, XI. 243.
“I have the honor to acknowledge the receipt of your note of the 19th ultimo, enclosing letters rogatory of the examining judge of Antwerp in the case of George Bunn, charged with murder, for execution at New York City, Utica, New York, and Hartford, Connecticut.
“I have to say in reply that the execution of letters rogatory is not, except in certain cases, regulated by act of Congress, and does not come within the province of this Department. In many of the States the subject is regulated by local statutes, by which it is provided that such letters are to be presented to the proper court through the consul of the Government making the request. In fact, in a case in which the Department, deviating from its usual course, undertook to secure the execution of letters rogatory by communicating them to the governor of New York, in order that they might be presented to the proper judicial authority, they were returned with the statement that they would have to be presented in accordance with the provisions of the statute, and the Department was thus unable to secure their execution."
Mr. Gresham, Sec. of State, to Mr. Le Ghait, Belg. min. Aug. 18, 1893,
MS. Notes to Belg. Leg. VIII. 1.
sented to the court by the consul of the Government making the
September 18, 1889, Mr. Blaine, Secretary of State, addressed to the diplomatic and consular officers of the United States an instruction, enclosing copies of the circular of March 25, 1887, and directed them, while bearing in mind the fact that applications for the execution of letters rogatory in the United States were not made through the diplomatic channel, to report upon the method or methods by which such letters might be executed in the countries in which they respectively resided.
Responding to this instruction, Mr. Grant, minister to AustriaLaw in foreign Ilungary, February 10, 1890, enclosed a copy of a
countries: Aus- note from M. Pasetti of January 17, 1890, with refertria and Hun- ence to the practice in Austria. The statement of gary.
M. Pasetti was as follows: Aside from the rules governing the execution of judgments given by civil (ourts of justice in foreign countries there are no laws in the kingdoms and countries represented in the Reichsrath by which aid can be secured on requisition made by foreign countries.
Austrian courts of justice, nevertheless, invariably dispose of matters of this kind by granting their intervention for the purpose of giving testimony and ober judicial proceedings, on condition of reciprocity; and in case the foreign authorities especially desire it the formalities of taking testimony, as sanetioned by the laws of the country in which the suit is pending, will be strictly observed.
The laws referring to executions of judgments given by foreign courts will be found in the following decrees : No. 16, of May 18, 1792 ; No. 452, of January IS. 1799 ; No. 711, of February 15, 1805; No. 159, of June 24, 1860, and finally in paragraph 70 of the imperial patent No. 251, of Norember 20, 1852.
The ministry of justice, not understanding from the contents of the abovementioned esteemed note that it was desired to learn the principles applied to this branch of international law, has omitted to dwell at length on the prorisions in question.
a H. Ex. Doc. 281, 51 Cong. 2 sess. 2.
b II. Ex. Doc. 281, 51 Cong. 2 sess. 5. H. Doc. 551- vol 2-8
With the same dispatch Mr. Grant enclosed another note from M. Pasetti of February 1, 1890, in relation to the practice in Hungary. In this note M. Pasetti said:
The question of letters rogatory or commission of a foreign court, including those of the United States, to take testimony in Hungary, is regulated by paragraphs 61 to 63 of Article LIV. of the law of 1868, and paragraphs 3, 5, and 20 of Article LS, of the law of 1881.
The practical appliance of the above-mentioned paragraphs of Article LIX. of 1868, on requisitions coming from the courts of the United States, touching the taking of testimony of experts, as well as the taking of oaths, is not subject to any special formality, and it suffices that a requisition is made, through the diplomatic channel, accompanied by a Hungarian translation.
According to Article LS. of the law of 1881, touching execution, such requisitions on the part of United States courts can not be executed in Hungary because no reciprocity exists between the two countries.
The sections of the Hungarian law referred to by M. Pasetti were as follows:
Section 61, of article LIV., of the law of 1868 : “ Official letters rogatory which are to be executed outside of the country, in other countries and provinces of Ilis Majesty, or in other foreign states with which reciprocity exists, are addressed directly to the proper court, or to the authorities and organs designated in the treaty. In defirult of such reciprocity, application is made indirectly to the courts of foreign states through the Royal Ilungarian Ministry of Justice."
Section 62, of Article LIV., of the law of 1868 : “ Hungarian courts must act in accordance with these principles, when application is made to them by a foreign court to execute letters rogatory. The procedure, however, is also conducted when foreigners or foreign courts are concerned, according to the provisions of the present regulations concerning judicial practice."
Section 63, of Article LIT., of the law of 1868 : “ Evidence of the existence of reciprocity with a foreign state must be furnished, in case of doubt, by the party in whose interest the application is made. With regard to His Majesty's other countries and provinces, such evidence is not necessary.
Section 3, of Article LX., of the law of 1881 : When execution is ordered in compliance with the requisitions of foreign courts, or on the ground of their executable public documents [records?) having a clause of execution, the existing treaties are to be taken as the principal guide."
If there is no treaty; the order for execution is to be issued only in case of reciprocity, to be granted by the country of the court making the request (section 63 of Article LIV. of the law of 1868] and then only in the following instances :
(a) When a judicial decision that has acquired force of law, or an arrangement made before the court by which the case is to be tried, is taken as the basis of the execution.
(b) When the summonses have been delivered personally, in the country in which the soliciting court is situated, to the Hungarian witnesses whose depositions are wanted, and who have failed to appear, or when the said summonses have been served upon such witnesses in due form, in pursuance of a requisition by a Ilungarian court.
(C) When in accordance with the provisions of this law, which define the competence of the court, iMy court of the state in whose territory the decision to be executed was pronounced, or the arrangement to be executed was concluded, was competent; and, finally,
(d) When the thing to be secured by the execution does not conflict with any Hungarian law.
In these cases that court which, according to section 18, is competent to grant the requests contained in letters rogatory shall decide concerning the ordering of the execution.
When application is made to several courts for the execution of letters rogatory, the court first named in the requisition decides concerning the ordering of the execution, and when application is made to district courts only the district court first named so decides and notifies the other competent courts of its decision.
Requisitions addressed to incompetent courts are to be transmitted to those which are competent.
Section 5 of Article LX. of the law of 1881: In questions concerning the personal status of a Hungarian subject, decisions of foreign courts against a Hungarian subject can not be executed in Hungary"
Section 20 of Article LX, of the law of 1881: "The court instructed to execute letters rogatory is obliged to do so er officio only when, in the order directing that the execution take place, the execution is declared to be executable er officio; [and] provided that the applicant for the execution, or his attorney, has not given notice in writing to such court of his withdrawal of his application, or of the suspension of the execution before it has taken place. In the cases in sections 3 and 4 the execution is to take place er officio unless the contrary is clearly stated in the requisition or in the application."
If the execution is not to take place on the spot, the executing court may require payment of the costs in advance. When such requirement is made, due notice thereof shall be given. A report on the law in Belgium was made by Mr. Terrell, United
States minister at Brussels. October 17, 1889. His Belgium.
report was as follows: a “ Commissions of this character are brought to the attention of the Belgian Government through the diplomatic channel, and their execution is regulated entirely under the authority of the minister of justice by virtue of article 139 of the law of June 18, 1869. It seems under the Belgian law that the diplomatic channel should be used as constituting a sufficient guaranty of the authenticity of the documents relating to the matter. (See circular letter of the minister of justice, November 20, 1878.) In most of the extradition treaties between Belgium and foreign countries there is a clanse especially providing that commissions rogatory. deemed necessary in the penal proceeding, shall be sent through the diplomatic channel.
“ Under the general law of March 15, 1874, regulating extradition, it is expressly provided that commissions rogatory, issued by competent foreign authority, leading to domiciliary visits or the seizure of the substance of the offense or of matters of circumstantial evidence, can be executed only when they bear upon such offenses as are enumerated under that law.