22 N.J. Eq. 111 | New York Court of Chancery | 1871
The subpoena was directed to the Governor, by his individual name, and not as Governor. Every person, whatever! his office or dignity, is bound to appear and testify in courts of justice when required to do so by proper process, unless he has a lawful excuse. The official engagements and duties of the higher officers of government may be, and in many cases are, a sufficient excuse. The dignity of the office, or the mere fact of official position, is not of itself an excuse, and -whether the official engagements are sufficient, must be determined from the circumstances of each case. Whether the highest officer in the government or state will be compelled to produce in court any paper or document in his possession, is a different question. And the rule adopted in such cases is, that he will be allowed to withhold any paper or document in his possession, or any part of it, if, in his opinion, his official duty requires him to do so. These were the rules adopted by Chief Justice Marshall in the trial of Aaron Burr. He allowed a subpoena duces tecum to Presi-j dent Jefferson and held that he was bound to appear, butt that he should bo allowed to keep back any document, on part of a document, which he thought ought not to be produced. 1 Burr’s Trial 182; 2 Ibid. 535-6.
The same view was taken by Chief Justice Tilghman in Gray v. Pentland, 2 Serg. & Rawle 23. His seeming approval of the action of the Court of Common Pleas, in refusing a subpoena duces tecum to the Governor, was based upon the right of the Governor to withhold the document at his discretion.
The Governor having placed this paper where it can be
But I will make no order on him for that purpose. The subpoena was rightly issued, without the order of the court. These writs, like all other process to appear, are issued by the clerk, upon application of the party or his solicitor. Such is the settled practice. An order to testify is an unusual, if not unheard of, practice. ' Such order ought not to be made against the Executive of the state, because it might bring the’Executive in conflict with the judiciary. If the Executive thinks he' ought to testify, in compliance with the opinion of the court, he will do it without an order; if he thinks it to be his official duty, iii protecting the right and dignity of his office, he will not comply, even if directed by an order. And in his case, the court would hardly entertain proceedings to compel him, by adjudging him in contempt. It will be presumed that the Chief Magistrate
If the Governor, without sufficient y^laAvfuk reasons, refuses to appear and testify, lie is, like all other citizens, liable to respond' in damages to any party injured by his refusal.
It is possible that there may be cases where courts, from the conduct of an Executive, might deem it proper to proceed against him for contempt. But this is not one of them, and the party here must be left to his civil remedy.