Thompson v. German Valley Railroad

The Chancellor.

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 *114 examined and produced.in evidence before the examiner, upon the order of this court, there is no further question as to the production of the paper. An order for its production has been made. The production of the document can be of injury to no one; it is á private act, passed by both houses, and its contents, and the fact of its passage, are known. Whether this act is a law, and what are its contents, are, or may be material in the pending suit. Erom the facts stated and alleged, it may be a grave question whether or not this act. became a law. The time when it was delivered to the Governor, may be a very material fact in determining that question. That is a proper question for the courts to determine. They may arrive at a conclusion different from that of the Governor; and if they do, it will be their duty to decide according to their own views, as the Governor, in his action, must be governed exclusively by his views. The, Governor cannot be examined as to his reasons for not signing the bill, nor as to his action in any respect regarding it. But there is no reason why he should not be called upon to testify as to the time it was delivered to him; that is a bare fact, that includes no action on his part. To this extent, at least, I am of opinion that he is bound to appear and testify.

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 *115 intends no contempt, but tliat liis action is in accordance with liis views of liis official duty. And in the present case that presumption amounts to a certainty. Chief Justice Marshall on the trial of Burr, vol. 2, p. 536, remarks: “In no case of this kind would a court be required to proceed against the President, as an ordinary individual. The objections to such course are so strong and so obvious that all must acknowledge them.”

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.