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execution in Germany, and that on being forwarded to our embassy at Berlin to put in course of execution, the German foreign office has expressed the desire that this Government declare officially that the courts of the United States would in any similar case execute letters rogatory issued by the German patent office. You request an expression of my views upon the point whether the courts in this country have authority to execute letters rogatory issued out of the German patent office, and suggest that if this authority is lacking, proper recommendation should be made to Congress with a view to legislation to regulate the subject.

The usual practice in England and the United States has been to take testimony abroad by open commission issued from a court of record and directed to persons vested with no local judicial authority in the foreign country, who proceed as commissioners of the instance court to obtain voluntary testimony. (Wharton on the Conflict of Laws (1882), sec. 723 et seq.) This method was formerly the usual and the only regular mode of taking depositions in a foreign country. (Stein v. Bowman, 13 Pet., 209; Froude v. Froude, 1 Hun., 76.) Letters rogatory or requisitorial, drawn from the civil law, have obtained, as a rule, on the Continent of Europe, and are currently employed more frequently than at an earlier day. Under such letters, and by the doctrines of international law respecting comity, the courts of each country are held bound to execute commissions to take evidence, subject to the proviso that the requirement shall contain nothing to prejudice national sovereignty, and that reciprocity in such matters shall be assured.

It seems to be well settled that letters rogatory are issued only when an ordinary commission can not be executed, that their use rests wholly upon comity between foreign states, that interrogatories are generally attached, and that the law of the forum to which the letters are addressed governs the procedure under them. (Whart. Conf. Laws, ut supra; Nelson v. United States, 1 Pet. C. C., 235; Kuehling v. Leberman, 9 Phila., 160; Doubt v. Pittsburgh R. R. Co., 6 Pa. Dist. Rep., 238; sec. 4071, R. S.)

Section 875, Revised Statutes, provides for letters rogatory from United States courts in suits in which the United

States have an interest; and per contra, for letters rogatory addressed from a foreign court to a circuit court of the United States. And sections 4071-4074, Revised Statutes, provide for the taking of testimony in this country, to be used in foreign countries, in suits for the recovery of money or property in which the foreign government has an interest, either by commission or letters rogatory, under the authority and supervision of the district judge of the district where the witness resides. So that the United States has recognized by statutory provisions and judicially the principle of international comity involved. The various States, either under statutes or pursuant to general doctrines, reciprocate with each other and with foreign countries in the same manner.

But certain foreign governments are unwilling to permit testimony to be taken in the less formal way by open commission, and in that case, before the Federal statutes definitely recognized the proceeding by letters rogatory to the limited extent indicated, the Supreme Court held that letters rogatory may be issued "for the purpose of obtaining testimony when the government of the place where the evidence is to be obtained will not permit a commission to be executed." (Nelson et al. v. United States, ut supra; 1 Foster's Fed. Prac., 3d ed., sec. 290, and note; Gross v. Palmer et al., 105 Fed. Rep., 833.) It seems that Germany is such a country, and that the ground of objection by the German Government to the execution of a commission is that this customary practice, committing the examination not to a local tribunal but to an individual acting as commissioner of the foreign court, may involve an invasion of sovereign rights. Germany prefers that testimony taken within her borders to be used abroad shall be subject to the control of the established German courts under letters rogatory. (3 Whart. Int. Law Dig., c. 23.)

The United States Patent Office customarily issues commissions to take testimony in foreign countries (rule 158, Patent Office Rules of Practice) under the authority of section 4905, Revised Statutes, which authorizes the Commissioner of Patents to establish rules for taking affidavits and depo

sitions required in cases pending in the Patent Office, but does not explicitly refer to the taking of testimony abroad.

The Commissioner of Patents has decided in the case of Potter v. Ochs (97 Official Gazette of the Patent Office, p. 835) that, under section 4905 and the provisions of rule 158, he has authority to issue letters rogatory; and accordingly the letters which produced your inquiry were issued addressed to the royal district court at Berlin. The Commissioner's decision is based upon the view that courts of the United States issue letters rogatory under similar circumstances; that the Commissioner of Patents possesses judicial functions analogous to those of courts (United States ex rel. Bernardin v. Duell, 86 O. G., 995); but that since the Commissioner is not authorized by law to issue subpoenas to compel the attendance of witnesses, he is not able in issuing letters rogatory to make the offer usual in such instruments to render a like service to the foreign court. He also relies for the regularity of his action on the view that the courts of this country stand ready to render such service to the courts of Germany when requested, and expresses the belief that the courts of this country would comply with such a request issued by the German patent office under similar circumstances.

There is no doubt that the Patent Office embraces a judicial side, as pointed out in the case of Bernardin v. Duell, just cited. The Commissioner as to various aspects of patent laws exercises judicial functions, and the questions involved bear a judicial character. It also appears that the German patent office exercises similar judicial functions under different provisions of the imperial patent laws; indeed, in German patent law the analogy to a court seems to be even more pronounced.

It is obvious that this is a field where the influence of comity may properly be liberal and does not appear to be liable to abuse. For these executive branches of the respective governments are established and responsible agencies of administration. They are peculiarly sensitive to enlarging notions of international reciprocation as applied to inventive skill and products of the brain. They possess and exercise important judicial functions, and the Patent Office

of the United States, at least, does, as a matter of fixed practice, issue commissions, which have historically issued from courts alone as strictly as letters rogatory.

Nevertheless, as I have just implied, the fundamental idea undoubtedly is that either one of these methods of obtaining testimony abroad proceeds as a charter or authority granted by a regular judicial tribunal. The precise question before me is whether the courts in general of this country have authority to execute letters rogatory issued from the German patent office. Now, I think the opinion may safely be ventured that if Germany saw fit to issue a commission by her patent office, voluntary testimony could be obtained here (as it is thus usually obtained by us abroad), although the statutory ancillary process of Federal courts, if needed, in such case, is restricted to certain suits, as indicated ante (Revised Statutes, sec. 4071). But it is probable that the power and discretion of Federal courts in this particular, existing as elementary and antecedent to the statutes (Stein v. Bowman; Nelson v. United States, above cited), is not restricted by the statutes, but simply directed or commanded pro tanto. It may, indeed, be that the open commission is unknown to German jurisprudence, or is not commonly employed thereunder, and doubtless our courts might be influenced by the failure to reciprocate; yet I understand from the correspondence that commissions are sent from Germany to this country-that this privilege not only would be, but is freely given by courts of this country to subjects of Germany (letter of the Secretary of the Interior, May 16, 1902). However, even as to the simpler procedure under commission, I am unable to construe or predict, beyond the point of high probability just indicated, the status of a commission from the German patent office in the various jurisdictions and systems of the States of this Union. And when we turn to the subject of letters rogatory, by which ordinarily regular courts of exclusive judicial jurisdiction call upon the friendly aid of such courts abroad and offer reciprocation, the judicial character of the question more plainly appears; such a question I am not permitted to answer (13 Opin., 160; 19 Opin., 56; 20 Opin., 210, 314, 539; 21 Opin., 369, 557, 583); I can not speak for

the courts. It is for the different courts of the various jurisdictions, Federal and State, to say when the point comes before them for decision whether or not they have the necessary authority in the premises. It is manifest that I can not properly pass upon such a question, which is preeminently matter for judicial and not executive determination.

Therefore, I have the honor to say, responding to your alternative suggestion, that it may be well to propose to Congress legislation which shall explicitly authorize the issue of letters rogatory by the Patent Office of the United States, and shall clothe Federal courts with the power to execute letters issued by those patent offices of the recognized powers which possess and exercise well defined judicial functions.

Very respectfully,




The mere promotion of two officers in different departments of the Army does not, under sections 1603 and 1219, Revised Statutes, disturb their preexisting relative rank.

Section 1219, Revised Statutes, does not purport to regulate merely the relative rank of officers in the same department of the Army, but is intended to fix the relative rank of the various officers of different departments of the Army.

There is no warrant, therefore, for holding that promotions are appointments where the officers promoted are in different departments of the Marine Corps, but are not appointments where they are in the same department.

Opinion of Attorney-General MacVeagh of August 17, 1881 (17 Opin., 196), and of Attorney-General Brewster of May 18, 1882 (17 Opin., 362), reaffirmed.

June 11, 1902.

SIR: I have the honor to acknowledge the receipt of your letter of April 17, 1902, in which you request my opinion as to the relative rank of two officers of the Marine Corps, such rank, by section 1603, Revised Statutes, being determined by the provisions of law regulating relative rank in the Army.

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