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Letters of Request

1911 Encyclopedia Britannica

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The legal terms "letters rogatory," or "of request" (commission rogatoire ), express a request made by one judge for the assistance of another in serving a citation, taking the deposition of a witness, executing a judgment, or the performance of any other judicial act. The later law of Rome imposed a duty of mutual assistance on the courts of the Empire, and this was extended to the courts of different states when, and so far as, Roman law came to rule the modern world. Consequently, outside ecclesiastical law (see below), the only trace of such a practice to be found in England or the United States, independent of statutory enactment, is in the admiralty doctrine that the sentence of a foreign court of admiralty may be executed on letters of request from the foreign judge or on a libel by a party for its execution. See the authorities collected by Sir R. Phillimore in The City of Mecca, 5 P.D. 28. The need of assistance in taking the depositions of witnesses outside their jurisdiction was long in being felt by the British and United States courts, because they issued commissions for that purpose to private persons, sometimes to foreign judges in their private capacities. But an increasing sensitiveness as to the rights of sovereignty led to objection being taken to the execution of such commissions by persons who in that employment were officers of courts foreign to the countries in which they acted, besides which those commissions could give no power to compel the attendance of witnesses abroad. Consequently both in the mother country and in the United States acts have been passed empowering the courts to issue commissions for taking evidence to colonial or foreign courts, and to execute such commissions when received by them from the courts of the colonies or of foreign countries. The British statutes are 13 Geo. III. c. 63; I Will. IV. C. 22; 3 & 4 Vict. C. 105, 6 & 7 Vict. C. 82, 22 Vict. C. 20 and, 49 & 49 Vict. c. 74. But neither in England nor in the United States have commissions of the old kind been entirely disused. In the practice under the Anglo-American statutes, the leading rules are that all the acts of the judge whose services are required, and all things done before him, are governed by the law of the country in which the execution takes place ( locus regit actum ), while the admissibility of the evidence and all else which concerns the conduct of the action is governed by the law of the country in which it is pending (lex fori). Details may be seen for England and the United States in the usual books of practice, and in Wharton's Conflict of Laws (2nd ed., 1881), §§ 722-31, and Sir R. Phillimore's International Law (3rd ed., 1889), v. 4, §§ 882-85; for other countries in von Bar's Private International Law, translated by Guthrie (2nd ed., 1892), §§ 39 1, 39 2, 4 0 9, 410. In ecclesiastical law, letters of request are issued for the purpose of sending causes from one court to another. Where a diocesan court within a province has jurisdiction over the parties concerned, the plaintiff may apply to the judge of such court for letters of request, in order that the cause may be instituted either in the court of arches or the chancery court of York, as the case may be. When the judge of the diocesan court consents to sign such letters and they have been accepted by the judge of the higher court, a decree issues under his seal, calling upon the defendant to answer to the plaintiff in the suit instituted against him. Letters of request are also issued for other purposes, being sometimes sent from one judge to another to request him to examine witnesses who are out of the jurisdiction of the former, but in that of the latter; to enforce a monition, &c.