Definition
An open commission is a procedural device in civil litigation — a commission issued by a court of record, without attached written interrogatories, authorizing the taking of testimony from witnesses located outside the state but within the United States or Canada. Unlike a commission with written interrogatories (where questions are fixed in advance and submitted in writing to a commissioner), an open commission permits oral examination of witnesses, allowing for follow-up questions and more flexible cross-examination. The examining party or their representative appears before the commissioner and questions the witness directly, as they would at trial.
The distinguishing feature is the absence of pre-written interrogatories. "Open" refers to the open-ended, oral nature of the examination — not to any lack of judicial oversight or procedural structure. The commission itself still issues from the court and is subject to the court's rules governing depositions and out-of-state testimony.
Courts retained discretion to deny an open commission where there was reason to believe that a commission with written interrogatories would be more appropriate — for example, where oral examination posed a risk of abuse or where the written form would adequately serve the purpose.
Common Confusion
Open commission is easily confused with a commission with written interrogatories, which is the alternative procedural form for the same underlying purpose (taking out-of-state testimony). The two differ not in their authorization or geographic reach, but in how examination is conducted: written interrogatories fix the questions in advance; an open commission allows live, responsive oral questioning. A researcher encountering either term in historical civil procedure records should treat them as related but distinct mechanisms, often discussed in the same statutory provisions.
Open commission should also be distinguished from a commission to examine witnesses generally — a broader category that encompasses both forms. The modifier "open" always signals the oral examination variant.
Why It Matters in Research
This term is almost exclusively a historical procedural term. It appears in late nineteenth and early twentieth century civil procedure codes and practice manuals, particularly under the codes of civil procedure that followed the Field Code reforms. New York's Code of Civil Procedure (§§ 893, 894, 897) is the anchor statutory reference in Bouvier's treatment, and researchers working with New York state court records or practice guides from this era will encounter the term most frequently there.
The key research trap: modern civil procedure has largely displaced open commissions and their written-interrogatory counterparts with the deposition mechanisms of the Federal Rules of Civil Procedure (Rule 28 for out-of-state depositions, Rule 31 for depositions on written questions). A researcher encountering "open commission" in a pre-1940 procedural context should not assume the modern deposition framework applies — the procedural mechanics, the role of the commissioner, and the applicable rules differ significantly.
Jurisdictional variation in historical sources is real. While New York's code is the most documented example, similar provisions appeared in other code pleading states. When researching a specific jurisdiction, locate the equivalent state code provisions rather than assuming New York practice governed.
The denial standard noted in Bouvier — that courts could refuse an open commission where a written-interrogatory commission would suffice — is worth noting for researchers analyzing judicial discretion in discovery disputes. Courts treated the open form as the more burdensome and potentially more susceptible to abuse, and that tension surfaces in practice treatises of the period.
Historical Dictionary Support
Bouvier's Law Dictionary provides the primary historical definition and ties the term directly to the New York Code of Civil Procedure. Bouvier's entry is compact but precise: an open commission issues without written interrogatories, from a court of record where an issue of fact has been joined, and reaches witnesses outside the state but within the United States and Canada.
Two points worth noting in Bouvier's treatment: First, the geographic scope (outside the state, within the U.S. and Canada) reflects the territorial assumptions of late nineteenth century interstate practice — foreign country witnesses required different mechanisms. Second, the truncation of Bouvier's entry at the denial standard suggests the original source continued into judicial discretion criteria, which would be valuable for practice-context research but is not fully captured in the available excerpt.
Older editions of Abbott's Law Dictionary and Anderson's Law Dictionary (where available in the corpus) may provide supplementary period definitions, but Bouvier's remains the most authoritative historical source for code pleading era procedural terminology of this type.
Jurisdictional Note
Open commission as a formal procedural device was most developed in code pleading jurisdictions following the Field Code model, with New York as the paradigm. Other states that adopted similar codes of civil procedure had analogous provisions, but the specific statutory sections, geographic reach, and denial standards varied. The term does not appear as a live procedural category in modern federal practice.