of justice, to arrive at the truth between disputed facts in an action pending in the court. The testimony in any particular case may be necessary to save a private person, whether German or American, from penalties to which he would otherwise be liable. On the other hand, it may be required in the interest of good government here or elsewhere to punish attempted frauds upon the public revenue. These are objects of common interest to all commercial powers, which the government of Germany from its well-known character will be the first to appreciate and to vindicate. Upon an examination of the particular order in question, it will be seen that it provides for the taking of testimony for the benefit of either party, and from this fact and from the letter of the district attorney it will be found to be an order made for the benefit of both parties, and obtained by consent or upon their joint application. So far as any objection may be made to the execution of this particu lar commission, therefore, by the branch house of the defendants in Germany, it appears that the order was made on the solicitation or consent of the house in New York. Any obstacle thrown in the way of the taking of this testimony by the German government amounts to a refusal to permit two parties to ascertain the truth to be used for their mutual benefit in a legal proceeding. It is confidently believed that an explanation of the matter will be entirely satisfactory to the German government. The United States has no desire to obtain for its consuls in Germany any authority or functions except such as rightly belong to them; and at the same time this Government will be extremely reluctant to admit that a person becoming a consul of the United States is thereby excluded from privileges which are allowed to unofficial persons, or becomes disqualified for the discharge of duties to his fellow-citizens which may be performed by any other reputable person, of whatever nationality, but which are likely to be asked of him by reason of his official position, making him more likely than others to be known to those needing such services. You will fully explain this matter to the minister of foreign affairs, and it is confidently hoped and expected that on this full explanation all objection to the action of the consuls in question will be withdrawn, and that the German government will view it as an act of comity, and in aid of the proper administration of government and justice, to facilitate the ascertainment of the facts in the case now at issue between this Government and the Messrs. Wolff. A continued objection or obstruction to such ascertainment would be the cause of very serious regret to this Government. You may, in your discretion, read and give a copy of this dispatch, to this point, to the minister of foreign affairs, for the purpose of explanation. Under the circumstances set out in your No. 9, your action in intimating to the several consuls the difficulties which might arise from action on their part until the matter should be adjusted, was a wise precaution, and is approved. Should the German government withdraw the objections now raised, you will so inform the several consuls, and inform this Department by telegraph. You will also instruct the consuls, in executing any such commission, to assume no authority as consuls, and to be careful in their action to give as little offense to the German government and to its subjects as possible. I am, &c., HAMILTON FISH. [Inclosure in No. 698.] Mr. Williams to Mr. Fish. DEPARTMENT OF JUSTICE, Washington, August 4, 1874. SIR: Referring to your letter of the 20th ultimo, inclosing a dispatch from the minister of the United States at Berlin, and other papers, I now have the honor to inclose, for your information, a copy of a letter addressed to this Department, under date of the 27th ultimo, by the United States attorney for the southern district of New York, and a copy of the dedimus potestatem issued by the district court of the United States for that district in the case of the United States vs. S. N. Wolff et al., of Neidheim, authorizing United States consuls and their representatives to take testimony in said case. Very respectfully, your obedient servant, GEO. H. WILLIAMS, Inclosure 1 to inclosure in No. 698.] Mr. Bliss to Mr. Williams. OFFICE OF THE DISTRICT ATTORNEY OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, New York, July 27, 1874. SIR: I beg to acknowledge the receipt of your favor of 21st, transmitting a copy of letter of the Secretary of State and a copy of a dispatch addressed by the minister of the United States at Berlin to the State Department, the several papers relating to an order to take testimony issued by the district court for this district. In reply to your inquiry, I beg to say that the United States has a suit pending against the firm of Wolff & Co., to recover about $75,000 penalties for alleged undervaluation in the importation of goods to this port. In that suit both parties desire to procure the testimony of persons residing in various places in Europe. It was therefore agreed be tween the respective attorneys that an order should be entered, allowing the testimony to be taken orally at places named. It has long been the practice in this district to designate as commissioners to take testimony in foreign parts the persons who, from time to time, happen to be the consuls of the United States at the places where the testimony is to be taken, and in this case the parties agreed that this course should be followed. The consuls are not, in such case, supposed to act as consuls, but to act as commissioners, agreed upon by the parties, having, of course, no power to compel the attendance of witnesses, unless the head authorities choose to grant it, which some countries do and others do not. I inclose a copy of the order issued in this case. You will perceive that it is an authority to the persons named to take the testimony. Nothing is required of them, as seems to be supposed, and they can, of course, refuse to act. As they are paid for their services, they are, however, usually quite willing to act. I may be permitted to add that, though the order is, in form, issued upon my motion, it was really issued by consent of parties. Your obedient servant, Hon. GEO. H. WILLIAMS, GEORGE BLISS, United States Attorney. Attorney-General. [Inclosure 2 to inclosure in No. 698.] ORDER OF THE COURT. At a stated term of the United States district court for the southern district of New York, held at the United States court building in the city of New York, on the 13th day of April, 1874: Present, the honorable Samuel Blatchford, the district judge. THE UNITED STATES 18. S. N. WOLFF et al. On reading and filing affidavit of plaintiff's attorney and notice of motion, with proof of due service thereof on attorneys for the defendant, Alphonse de Riesthal, who only has appeared herein, George Bliss, esq., appearing for the plaintiff, and W. J. A. Fuller, esq., for the defendant, Alphonse de Riesthal: It is, on motion of George Bliss, esq., United States attorney, ordered that a dedimus potestatem be issued in this cause out of this court, directed to the United States consul and to such deputy or representative of said consul as may be authorized by him to act in his place and stead, at the following-named places, respectively, viz: To E. P. Beauchamp, United States consul at Aix-la-Chapelle, (Aachen,) Germany, and his deputy or representative; to W. P. Webster, United States consul at Frankfort-on-the Main, and his deputy or representative; to H. Kreisman, United States consul at Berlin, Prussia, and his deputy or representative; to J. A. Stuart, United States consul at Leipzic, Germany, and his deputy or representative; to Daniel McM. Gregg, United States consul at Prague, Austria, and his deputy or representative; to S. H. M. Byers, United States consul at Zurich, Switzerland, and his deputy or representative; to examine the following-named persons under oath as witnesses herein, viz: A. Amberg and the person or persons composing the firm of A. Hirsch & Co., of Cassel, Germany; S. N. Wolff, of Neidheim, near Cassel, aforesaid; the person or persons composing the firm of Lüttger Brothers, of Petersmühle, near Solingen, Germany; Carl Aufermann, of Losenbach, near Liedenscheid, Germany; V. T. Pospichel, of Wiesenthal, Bohemia; and the person or persons composing the firm of Leopold Czech & Co., of Haida, Bohemia: the person or persons comprising the firm of E. Kreimer & Co., Berlin, Prussia; W. Wagner, jr., of Plattenberg, Switzerland, and T. L. Lurman, and J. W. Maes, of Iserlohn, Germany. It is further ordered that the examination above provided for shall take place during the months of July and August, 1874, and at such times within said months as is hereinafter designated. It is further ordered that either party to this action shall have liberty to examine not only the witnesses herein named, but any other witnesses that either party may desire to examine at the aforesaid places of Aix-la-Chapelle, Frankfort-on-the-Main, Berlin, Leipzig, Prague, or Zurich, before either of the persons herein anthorized to take testimony; provided, however, that the names of said witnesses and their places of residence shall be given to the attorney of the opposite side in New York, before June 6, 1874, or such notice be given in Europe to the opposite counsel acting there for either party to this action, in either of the aforesaid places of Aix-la-Chapelle, Frankfort-on-the-Main, Berlin, Leipzig, Prague, or Zurich, where such other witnesses are to be examined, two days before such examination. It is further ordered, that prior to June 6, 1874, the attorneys for the respective parties shall give notice in New York, each to the other, of the names and European address, for the last week in June, 1874, of the counsel for the respective parties who are to take testimony under this commission. It is further ordered that the examination of witnesses shall be had at the following places in the following order, and not otherwise, viz: first, at Aix la-Chapelle, next at Frankfort-on-the-Main, next at Berlin, next at Leipzic, next at Prague, and last at Zurich; that four weeks shall elapse between the examination of witnesses at Prague and Zurich; that the examination shall commence at Aix-la-Chapelle on the 6th day of July, 1874, or within two days thereafter; and that no examination shall be had of witnesses at any place after the examination has been finished at that place, or the examination of witnesses commenced at another place. It is further ordered that the counsel for the plaintiff shall have with him at any and all said examinations of said witnesses, or either of them, all the original invoices mentioned in the declaration herein, or copies or duplicates thereof, and which are in the possession of the plaintiff, and that counsel for defendant shall have full and free inspection thereof, and liberty to take copies of the same. It is further ordered that all directions herein contained as to time, place, order, and manner of examination of said witnesses may be changed or modified by the written consent of the counsel for the respective parties in Europe or in New York. It is further ordered that the examination of all witnesses under this commission shall be oral, and taken by question and answer, in the usual manner of taking oral depositions, by examination, cross-examination, and redirect examination; that the testimony given under such examination shall be reduced to writing, signed by the witnesses, and certified by the commissioners respectively, and by them transmitted by mail to the clerk of this court at the city of New York, unless otherwise mutually agreed upon by said counsel for both parties. It is further ordered that all testimony taken under the commission provided for herein shall be taken subject to all legal objections at the trial of this action. SAM. BLATCHFORD. No. 703.] No. 273. Mr. Fish to Mr. Nicholas Fish.* DEPARTMENT OF STATE, SIR: I transmit herewith an extract of an instruction, (No. 35,) of the date of the 20th April last, to Mr. Bingham, the representative of this Government in Japan; also, a copy of another instruction to him, (No. 65,) of the date of the 26th of August last. The President is impressed with the importance of continued concert between the treaty powers in Japan, at least until after the revision of the treaties, and until the government of Japan shall have exhibited a degree of power and capacity to adopt and to enforce a system of jurisprudence, and of judicial administration, in harmony with that of the Christian powers, equal to their evident desire to be relieved from the enforced duties of exterritoriality. He is also impressed with the importance that the several treaty powers should be informed of the determination of each other to adhere to the policy of co-operation. You are, therefore, authorized to read to the minister of foreign affairs the extract of the instruction No. 35, and also the instruction No. 65. * * * * * I inciose, also, for your information, a copy of an instruction (No. 4097) to Mr. George F. Seward, the consul-general of the United States at Shanghai, with two accompaniments, in relation to citizens of the United States connected with the Japanese expedition to Formosa, or who may enter the military or naval service of a foreign power; also, a copy of an instruction, (No. 43,‡) of the date of the 6th of June last, addressed to Mr. Bingham, on the same general subject. I am, &c., No. 274. HAMILTON FISH. No. 33.] Mr. Davis to Mr. Fish. LEGATION OF THE UNITED STATES, 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 * A similar instruction was sent to the minister to Russia. + See correspondence with the consul-general in China, ante. For instructions 35, 43, 65, to Mr. Bingham, see under Japan, infra. added that in the particular case 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., No. 275. Mr. Fish to Mr. Davis. J. C. B. DAVIS. No. 24.] DEPARTMENT OF STATE, Washington, November 14, 1874. SIR: Your No.33, under date of the 20th of October last, narrating your interview with Mr. von Bülow at the foreign office in relation to the objection interposed by the German government to allowing consuls of the United States to serve as commissioners to take testimony to be used. in judicial proceedings pending in this country, has been received. Your representations to the minister are approved. Although Mr. von Bülow stated to you that instructions on the subject had been sent to Mr. von Schlözer a fortnight prior to your interview and conversation, nothing has been heard from that gentleman in this connection. The objection interposed by the German government to the obtaining of testimony in Germany to be used in the courts of this country is much to be regretted, and as appears from the admission made to you by Mr. von Bülow, the Germans whose interests led them to resist the taking of the testimony, and who invoked the interposition of their government to prevent it, are now known to have been in the wrong. It would have been quite as satisfactory to this Government had the reply of the German government on a subject presented to their consideration, through the representative of this Government at Berlin, been communicated also through him, and, as is shown, some delay which has occurred might have been avoided. As Mr. von Schlözer has not communicated the answer of his government, it will not be amiss that you inform Mr. von Bülow that we are still without any reply. You will call his attention to the fact that the suit in which the testimony is sought is one in which the Government of the United States is itself a party. I inclose herewith copies of existing statutes (which are embodied in sections 4071, 4072, 4073, and 4074 of the Revised Statutes of the United States) enacted by this Government to insure to other powers the opportunity of obtaining testimony in this country in any suit for the recovery of money or property depend ng in any court in any foreign |