In re Jay — 7 N.Y. Super. Ct. 674

Majority

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In the matter of the Petition of John Jay and T. W. Clerke. Commissioners, &c.

Headnote

As the jurisdiction of the Superior Court is defined hy statute, it is doubtful ■whether it can exercise any power beyond those that are expressly given.

The case is different with the Supreme Court, which, as a court of general jurisdiction, possesses (mutatis mutandis) all the powers of the Queen’s Bench in England.

Held, that it was inexpedient to grant the process of the court to compel the attendance of witnesses, to he examined under a commission from a foreign country, the case not being provided for by statute^[1]

Oct. 19.—The following petition was presented to the judge holding the special term :

The application of the undersigned John Ja.y and Thomas W. device, acting commissioners duly nominated and appointed by the Court of Queen’s Bench, in the kingdom of Great Britain, with full power and authority to examine, cross-examine, and re-examine certain witnesses, at the city of New York, as well on the part of John Henry Wardwell, the plaintiff, as on the part of Thomas Frederick Beale, the defendant, in a certain action, on promises, now depending in the said court at Westminster, upon viva voce questions to be put to them, the said several witnesses, as fully appears by the said original writ, sealed with the seal of the said court, and witnessed by John Lord Campbell, at Westminster, the 21s't day of July, in the sixteenth year of her Majesty’s reign, now exhibited to this court, a true copy -whereof is hereunto annexed, Respectfully showeth—

That the undersigned, as such commissioners, and by virtue of the power and áuthority by the said writ conferred, entered ■ upon the performance of the duties therein imposed upon them, on the fourteenth day of October, instant, and have been attended by Mr. Stephen D. Van Sehaick, as counsel for the said plaintiff, and by Messrs. JohnB. Dillon and Richard O’Gorman,

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as counsel- for the said defendant, and that they have in part examined one witness on the part of the said plaintiff, to wit: Augustus Frederick Braham, who was brought before them.

That the further execution of the said writ of commission has been interrupted, by the neglect and omission of persons, whose testimony is said to be material in the said cause, to attend and testify therein, in pursuance of summonses addressed to them respectfully by your petitioners, as such commissioners, desiring their attendance for the said purpose at a time and place in the said summonses specified.

And the said commissioners further show, that although clothed with full power and authority, by the aforesaid writ from the said court of queen’s bench, to do all such acts and things as may be necessary and lawfully done for the due execution thereof, they have, as they are advised and believe, no power or authority of themselves, without the aid or assistance of a judge or court of law appointed or. established by this state or the United States, to compel the attendance of any witnesses whatsoever, for the purpose of testifying under the said writ of commission ; and they further show that unless they are so aided and assisted with process issuing, out of a court of competent jurisdiction, to compel the attendance of such witnesses, for the purpose of securing whose testimony the said writ of commission was issued, the said commissioners will be utterly unable properly to execute the said writ, and will be compelled to return the same to the said court of queen’s bench, in great part unexecuted, on the ground that the counsel were unable to procure, and the commissioners were unable to compel, the attendance of witnesses deemed essential

The undersigned, therefore, in consideration of the said facts, and by virtue of the powers and authorities in them vested, as such commissioners, by the said court of queen’s bench, do now, on behalf of said court, respectfully invoke such aid and assistance in the execution of the said writ,-as this court is competent to give, and as by the law and comity of nations, courts of justice in different countries are accustomed mutually to extend to each other for the furtherance of justice, and to prevent a failure or "delay thereof. And the undersigned do especially ask that this honorable court will accordingly grant them one or more writs

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of subpcena ad testificandum and of subpcena duce tecum, to compel the attendance of all persons within the jurisdiction of the said court, whose testimony the plaintiff and defendant in the said cause, may desire to take under the said writ of commission.

John Jat, T. W. Clerke, Commissioners.

New York, Oct. 20, 1852.

John Jay and T. W. Clerke were heard in person in support of their petition, and urged the following considerations :—

By the law of nations, courts of justice of different countries are bound mutually to aid and assist each other, for the furtherance of justice, and the power to grant such aid in regard to the procurance of the testimony of witnesses in a foreign country, is held to be within the inherent power of all courts of justice. (1 Greenleaf on Evidence, § 320.)

The correctness of this principle has been . distinctly and practically recognized in the United States courts. (See Nelson et al. v. The United States, 1 Peters’ C. C. R. 236, note a.,) where the proper form of letters rogatory to a foreign court or judge is given, stating that in a certain suit pending in our court, it is suggested that there are witnesses within your jurisdiction without whose testimony justice cannot be completely done between the parties, and requesting that you will, in furtherance of justice, by the proper and usual process of your court, cause such witnesses as shall be named to you, to appear before you, or some competent person, at a precise time and place, and there to answer, &c. &c., and concluding with these words,-“Jlnd we shall be ready and willing to do the same for you in a similar case when required.”

This recognition of the principle and practice of extending material aid in these cases, and this direct engagement and promise to do the like for foreign courts of justice, would seem to render it clear that our United States courts would feel distinctly bound to aid the execution of this writ of commission, if requested so to do by a letter rogatory, or a commission sub mutua vicissitudinis obtentu ac in juris subsidium.

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The chief object of letters rogatory is to inform the court abroad of the pendency of the cause, the names of the witnesses, and to request them to cause their depositions to be taken in due course of law, for the furtherance of justice. (1 Greenleaf on Evidence, § 320.)

These objects are substantially obtained in this case, by an exhibition to the court of the original writ, with the petition of the commissioners, and the aid requested being a matter not of strict right and rigid form, but of national comity and mutual courtesy and convenience, the court would scarcely deny the aid required, on the ground that it was not formally demanded by letters rogatory.

But the United States courts do not exercise this authority by virtue of any statutory provision, nor of any special power to them belonging. They exercise it by virtue of powers inherent in all courts of justice, aud which belong equally to our state tribunals.

And in view of the intimate commercial and social relations existing between the city of New York and the ports of Great Britain, and the fact that this writ of commission from the court of queen’s bench, is addressed to commissioners in this city, and is intended to be here executed, it has seemed to the commissioners proper to ask the aid required from this superior court of the city of New York, as a matter, in their opinion, absolutely within its general authority, and resting entirely in its discretion and courtesy.

I will take the papers, and examine the authorities you have cited. My present impression is, that your application ought to be made to the supreme court. As the jurisdiction of this court is limited and defined by statute, it may be doubted whether we can exercise any powers, beyond those which are expressly given, or which are plainly necessary to the exercise of those which are given. Our process must not be issued, unless it is certain that we can enforce obedience. It must not issue, to be contemned with impunity. You shall have my decision to-morrow, October 20th.

I am reluctantly compelled to deny this applica

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tion for aid, which is addressed to the discretion of the court, on grounds of national comity and courtesy, and which, were it not for doubts in regard to my jurisdiction, I should cheerfully grant.

The superior court of the city and county of New York, is a court created by special statute, of local and limited powers, and it does not therefore occupy towards the courts of foreign countries, the same position with our federal tribunals, or the supreme courts of the several states.

Its constitution differs widely from that of the supreme court of this state, which possessed originally all the powers that belonged to the court of queen’s bench, on whose behalf these commissioners invoke our aid. As we remarked in Kanouse v. Martin, (3 Sandford’s Superior Court Reports, p. 653,) it _ is a remarkable fact that the powers and jurisdiction of the supreme court, as formerly organized, were not defined in either of the constitutions of the state, or in any act of the legislature, and from its first organization by the colonial legislature in 1697, excepting so far as its powers may have been restricted by statute, it has possessed the power, and exercised the jurisdiction, civil and criminal, appellate and original, of the court of king’s bench in the mother country.

Were this court possessed of the power of the supreme court as pro hac vice, in Kanouse v. Martin, I should have no hesitation in promptly acceding to the application ; but, as the case stands, I must decline to exercise a doubtful authority.

Our revised statutes, singularly enough, contain no provision, conferring upon our courts and judges generally, specific statutory jurisdiction in cases like this, to aid foreign courts in the execution of foreign commissions, by issuing process to compel the attendance of witnesses. Yet.there appears to be intrinsic evidence of a belief on the part of the revisers, that they had made such provision, and members both of the bench and of the bar have occasionally been misled into the like belief.

■ The fourth article of chap, vii., title 3d, third part of the revised statutes, is entitled, “ Of depositions taken in this state, to be used in courts of other states and countries,” but the body of the statute relates only to other states, and the 56th section (44) of article 6th, in the same chapter, provides particularly

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for the service of summons, in all cases, “ where, by the provision of law, any judge or other officer is authorized to summon any person to appear as a witness, either before such judge or officer, to give testimony, or to have his deposition taken, or before any persons named in any commission issued by a court of any other state or country.” But no such provision of law is to be found in- the statute, and the authority referred to when exercised, must be exercised by virtue of inherent general powers.

Until therefore the legislature of this state, or the congress of the United States, shall supply the omission of our revisers, by the passage of an act, conferring upon our courts and judges of special jurisdiction, the power to aid, by their process, the execution of foreign commissions, such power can, perhaps, be safely exercised only by the federal courts, and state tribunals invested with general common law powers.

In regard to the federal courts, a precedent was established by Mr. Justice Washington, in the case of Nelson v. The United States, (2 Peters’ C. C. R. 236), which affirmed their right, and their willingness to issue their process in aid of a foreign court.

In that case, letters rogatory were addressed to the judicial authorities, praying the court or judge, by the proper and usual process of the court, to cause the witnesses to appear and answer, and the court expressly declared in conclusion, that they would be ready and willing to do the same for them in a similar case when required.

The supreme court of this state possesses, I presume, a like right, by virtue of its larger inherent powers, already referred to ; and that court will not be trammelled in considering such an application, by any doubts, arising from a restricted and limited jurisdiction, of their authority, to extend, to these commissioners of the court of queen’s bench the assistance they require.

In the principle, as stated by Professor Greenleaf, that, by the law of nations, courts of justice of different countries are bound mutually to aid and assist each other for the furtherance of justice (1 Greenleaf on Evidence, § 320), I fully concur; and I regard it as a principle, the propriety and necessity of which are likely to be felt with constantly increasing force as

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the commercial relations of Europe and America "become more intimate and more numerous. The duties imposed upon us by national comity and courtesy, are illustrated and enforced by the advantages to ourselves, of the universal recognition of the principle, as a part of the law of nations, for our suitors are frequently liable to require reciprocal aid from the judicial tribunals of foreign countries, and our courts, without such aid, will find it, in some cases, impossible to administer equal justice.

If it then be their right and duty to aid foreign courts in the procuring of testimony, in reply to letters rogatory by the law of nations, they may certainly, by virtue of these intrinsic powers, in the exercise of a wise discretion, and a liberal courtesy, waive a rigid adherence to strict forms and precedents, and aid foreign courts by the usual and proper process. Even when no such letters have been received, the issuing of a commission by a foreign court may be reasonably considered, and accepted, as sufficient evidence of its wishes. It is plain that letters rogatory do not confer jurisdiction. They only supply adequate motives for its exercise, and its exercise is therefore equally justified in all cases, where the same motives, national comity, and the furtherance of justice, are proved to exist. The only difference between letters rogatory, and a commission, is, the absence in the latter ofoa formal request.

I do not wish to be understood as deciding that this court does not possess the power to grant the aid asked for, but as the application of the commissioners shows that they have instant occasion for assistance, to secure the attendance of witnesses, and as doubts have forced themselves upon my mind, touching my authority, based simply upon the more narrow statutory jurisdiction of this court, and as no such question can arise in reference to the power of the supreme court, I think it proper to recommend the applicants to invoke the aid of that court, which, if I am correct in the views I have expressed, will be unhesitatingly and cheerfully granted.^[1]

Campbell, J., and Bosworth, J. concurred in the opinion, that it was not expedient to grant the prayer of the petition.

(a) (a) A subsequent application was made to the supreme court, aud granted; and thus the commission, that otherwise would have failed, -was fully executed.