Opinion., January 9, 1865

Opinion.

[Translation.]

The undersigned ancien avocat is of the opinion—

That the testimony of French subjects residing in France, intended to be used as evidence in a suit pending out of France, may be taken either by consular agents of the country where the suit is pending, or by a French tribunal in virtue of letters rogatory, emanating from a foreign tribunal having jurisdiction of the case;

That whatever may be the mode adopted for receiving the depositions of witnesses, these depositions cannot be in France pursued as laying the foundation for the crime of perjury, provided for and punished by the articles 361, 262, 363, 364, 365, and 366, of the penal code;

That the provisions of these articles of the code only affect depositions taken in a civil or criminal suit pending in France;

That the taking of testimony by a foreign consular agent accredited in France, but only delegated by foreign jurisdiction to receive the declarations of witnesses, cannot be considered as constituting a criminal or civil suit pending in France; it is but a step of the proceedings taken before foreign tribunals, of which the consular agent is the delegate or auxiliary, and it is no more the part of the French tribunals to know the consequences of this delegation than to know any other acts of the foreign procedure;

That the depositions received by the French tribunals in virtue of letters rogatory, emanating from a foreign tribunal and transmitted by the competent authority, do not constitute a suit pending before the French tribunals;

That the execution given to this commission is neither prescribed nor regulated by any law, and is in reality only a simple act of courtesy, conformable to international usages, and in no way divesting the foreign judicial authority originally having jurisdiction;

That, furthermore, the article 361, &c, of the penal code, only affect the depositions made in a criminal matter, or case of misdemeanor, in so far as they may be offered in evidence in the oral debates, and do not conflict with the depositions received during the trial.—(Cassation/April 26, 1816; September 14, 1826.;, April 19, 1839; July 22, 1843.)

That from that time, and under the circumstances hereafter indicated, the American government would not be permitted to prosecute for perjury before the French tribunals, but in virtue of the general terms of the article 1,382 of the civil code, according to which every act of man which causes another an injury obliges him by whose fault it happened to repair it, the American government, after having judicially established the fact of perjury, could show the prejudice to it resulting therefrom, morally and materially, could pursue before the tribunals of Franee the French person who caused this injury, and cause him to be condemned to make reparation.