No. 246.
Mr. Fish
to Mr. Davis.
Washington, June 8, 1875.
Sir: Your 117 has been received, and I have read with interest your correspondence with Dr. Gneist upon the question of executing commissions in Germany.
The result accords with my preconceived impressions on the subject. When Mr. Schlözer stated, as reported in my No. 74, that the real objection arose from the prohibition of German law, surprise was expressed that any positive prohibition existed.
It is possible, however, that the German system, and the authorities of Germany, may not consider that all acts are, or ought to be permitted, which are not forbidden by positive prohibition of law.
In your last communication to Dr. Gneist, under date of May 15, you state, in substance, that both Federal and State legislation is so adapted to our system of commissions that a change to that in use in Germany would call for new legislation in Congress and in every State in the Union, without which our courts cannot use the machinery provided by the laws of Germany.
While under our practice, both in the Federal and State courts, it is certainly true that a commission is the usual, perhaps the universal, means in general use of obtaining the testimony of a, witness in a foreign country, it is probably too broad a statement to say that none of our courts can make use of letters rogatory. Such question may, in many cases, be regulated by statute in the States, but it is true that letters rogatory are both executed by and issued from the Federal courts from time to time, and probably also from the State courts. Letters rogatory have, I think, been actually issued from the district courts in New York in the case of Wolff, which gave rise to this question, and since the question arose. Sections 875, 4071, 4072, 4073, 4074 of the Revised Statutes contain provisions on the question.
Your general views, however, as to the inconvenience of a change, and of the great need of some adjustment of this question, are entirely concurred in, and I am in hopes that something may be accomplished in that direction.
I am, &c.,