John Bigelow to William H. Seward, January 23, 1865

Mr. Bigelow to Mr. Seward

Sir: Some months since I was requested to ascertain what, if any, penal sanction attached to an oath of a French citizen, administered by a consular officer of the United States. I procured and communicated to you the verbal opinion of the procureur imperial, which was to the effect that the laws of France did not regard false swearing in such cases as perjury.

I have now the honor to enclose a written opinion upon the subject which differs so widely from the received opinion of the French law in the United States as to deserve publicity, especially among the members of the legal profession; Some commissions were recently sent to this consulate from California to take testimony in a large number of suits to which the United States government was a party.

The witnesses to be examined were all Frenchmen, and there was reason to apprehend that it was the intention of the parties who sued out the commission to make up in the quantity of the testimony what it might lack in quality. Under my advice, Mr. Farwell, United States naval officer at San Francisco, and special agent for the government here, applied to Mr. Berryer to know precisely what degree of value the laws of France attached to the oaths of French citizens administered by a consular agent, and in what way,if any, the testimony of a French citizen taken in France could he made available in a suit pending in the United States.

Enclosed please find Mr. Farwell’s letter and the opinion of Mr. Berreyer, which, if it required any support, I may say has been confirmed out of the mouths of several French lawyers with whom I have conversed upon the subject, none of whom seemed to entertain any doubt upon the subject.

By this opinion it appears not only that no penalties attach to the false testimony of a witness, sworn before the representation of a foreign government, which can be enforced by the French tribunals, but that even letters rogatory from an American to a French tribunal for the examination of a witness are executed as a matter of courtesy only, the tribunal not professing any control whatever over the witnesses after their testimony had been delivered.

The original of this opinion will be placed on file at the Paris consulate.

Yours, very respectfully,