might be material to his defense. The details which I have gathered from Robertson's short-hand report of the trial, Jefferson's letters to District Attorney Hay and Randall's Life of Jefferson, so far as material, are given in the margin.1

1 Before indictment found, Burr made an affidavit, June 10, 1807, in pursuance of notice given the day before, that he had great reason to believe that General Wilkinson's letter to President Jefferson, dated October 21, 1806, mentioned in the President's message of January 22, 1807, with the accompanying documents and the President's answer, "may be material in his defense," and asked a subpoena duces tecum directed to the President commanding him or the Secretaries having them in charge to appear in court bringing the letter of General Wilkinson and the documents and the President's answer to the letter. (Burr's Trial, I, 119.) Whether such a subpoena could be awarded in any case, or on the showing made it ought to be awarded, was discussed at the bar for three days with no little warmth and asperity by Burr himself and by Wickham, Martin, Edmund Randolph and Botts, his counsel, in support of the motion, and by Hay, MacRae and Wirt in opposition to it. The arguments ended June 12.

On June 9, as soon as the subpœna was applied for, District Attor ney Hay, in open court, promised if possible to obtain the papers, saying he had no doubt he should succeed. Counsel being unable to make any arrangement as to the production of the papers, the Chief Justice, June 13, delivered an elaborate opinion (Burr's Trial, I, 177– 189) holding that the court had the power to issue a subpoena duces tecum directed to the President, and that the showing made therefor was sufficient. An express having been immediately sent by Burr with the subpoena to the President, the messenger returned with "a verbal reply from the President that the papers wanted would not be sent by him," i.e. by the messenger. (Burr's Trial, I, 211–249.) In fact, the President, on application of the district attorney, had already voluntarily sent the papers as far as he had them in his possession to that officer accompanied with a letter dated June 12, which began: “Your letter of the 9th is this moment received. Reserving the necessary right of the President of the United States to decide independently of all other authority what papers coming to him as President the

The legality or propriety of Marshall's orders grant ing subpoenas to the Executive head of the Government to appear in court as a witness or to appear and produce

public interest permits to be communicated, and to whom, I assure you of my readiness, under that restriction, voluntarily to furnish, on all occasions, whatever the purposes of justice may require." (Burr's Trial, I, 210.)

The President, June 17, wrote a similar letter supplemental to the foregoing, stating that he had ordered the Secretary of War to furnish copies of the orders desired by the defendant, and offering to give his deposition in Washington "if the defendant supposes that there are any facts within the knowledge of the heads of the departments, or of myself, which can be useful for his defense." (Id., I, 254.) But the President expressly denied any obligation or duty to attend in person at Richmond, stating the reasons and ground of this view in the following language: "As to our personal attendance at Richmond, I am persuaded the court is sensible that paramount duties to the nation at large control the obligation of compliance with its summons in this case, as it would should we receive a similar one to attend the trials of Blennerhasset and others in the Mississippi Territory, those instituted in St. Louis and other places on the Western waters, or at any place other than the seat of government. To comply with such calls would leave the nation without an Executive branch, whose agency nevertheless is understood to be so constantly necessary that it is the sole branch which the Constitution requires to be always in function. It could not then intend that it should be withdrawn from its station by any co-ordinate authority." (Burr's Trial, I, 255; Randall's Life of Jefferson, III, 210.). The Presi dent also insisted that "from the nature of the case the Executive must be the sole judge of what proceedings and papers the public interest will permit to be published. . . . Consider yourself the organ for communicating these sentiments to the court." (Id. 211.)

On June 19, the President for the first time saw Marshall's opinion of the 13th, and in an unofficial letter to the District Attorney June 20, criticising the opinion, he repeats the foregoing views, and inquires: "But would the Executive be independent of the judiciary if he were subject to the commands of the latter; if the several courts could bandy him from pillar to post, keep him constantly

letters or documents has been the subject of controversy among lawyers from that time to the present, and differ ent opinions thereon are expressed in the addresses here published.

trudging from north to south and east to west, and withdraw him entirely from his constitutional duties?" The President, anticipating that an attempt might possibly be made to arrest him for contempt of court for not responding in person to the subpoena, added: "The intention of the Constitution that each branch should be independent of the others is further manifested by the means it has furnished to each to protect itself from enterprises of force attempted on them by the others, and to none has it given more effectual or diversified means than to the Executive." (Randall's Life of Jefferson, III, 212.)

Thus rested the matter until the trial of Burr for treason August 17 to September 1, 1807, when the case of the Government failed because of its inability to make proof of the overt act of treason at Blennerhasset's Island as laid in the indictment, and, therefore, there was no necessity for the Wilkinson letter.

On the subsequent trial of Burr for misdemeanor in setting on foot a military expedition against the Mexican possessions of Spain, Burr, on September 4, 1807, renewed his application for the production of the above-mentioned letter of October 21, 1806, and also another letter from Wilkinson to the President of November 12 of the same year, for which a subpoena duces tecum had been awarded, saying in open court that "the President was in contempt, and he had a right to demand process of contempt against him." (Burr's Trial, II, 504.) The District Attorney made no objection to producing the letter of October 21, or the letter of November 12, except two passages therein, which he said were wholly irrelevant and improper to be disclosed, the President having expressly authorized him to keep back such parts of the letter as the District Attorney might think it would be improper to be made public. These parts had not, however, so far as the court was informed, been selected or designated by the President, nor had he declared it to be incompatible with the public welfare to disclose them. When Mr. Hay refused in open court to produce for public inspection the whole letter of November 12, Burr denying the right of the President to delegate his

The learned Professor Thayer (whose recent death we have to deplore), speaking of the issue of a subpoena to President Jefferson, remarks:

"It was a strange conception of the relations of the different departments of the Government to each other, to imagine that a subpoena, that is to say an order accompanied with a threat of punishment, was a legitimate judicial mode of communicating with the Chief Executive.

authority to another asked that a subpoena duces tecum directed to Mr. Hay be awarded immediately. This being done Mr. Hay at once made this return (Burr's Trial, II, 511, 513):

"I hereby acknowledge service of the above subpoena, and herewith return a correct and true copy of the letter mentioned in the same, dated 12th November, 1806, excepting such parts thereof as are, in my opinion, not material for the purposes of justice, for the defense of the accused or pertinent to the issue now about to be joined; the parts excepted being confidentially communicated to the President, and he having devolved on me the exercise of that discretion which constitutionally belongs to himself. The accuracy of this I am willing to refer to the judgment of the court, by submitting the original letter to its inspection. I further certify, in order to show more clearly the irrelevancy of the parts excepted to any defense which can be set up in the present case, that those parts contain a communication of the opinion of the writer concerning certain persons, about which opinion, or the fact of his having communicated it, the writer, if a witness before the court, could not legally, as I conceive, be interrogated; and about which no evidence could legally be received from other persons.

"GEORGE HAY."

The sufficiency of this return being objected to, the questions thereon arising were fully debated, and thereon Marshall rendered his second opinion (Burr's Trial, II, 533) that the defendant was entitled to have the original letter produced, and ordered, on the defendant's motion, that unless produced the cause would be continued. (Id. 537.) See infra, pp. xlvii, xlviii, as to Jefferson's letters to Hay of September 7.

On Jefferson's part, this order was received with the ut most discontent, and justly. He had a serious apprehension of a purpose to arrest him by force, and was prepared to protect himself. Meantime he sent to the United States Attorney at Richmond the papers called for, but explained with dignity that, while the Executive was willing to testify in Washington, it could not allow itself to be withdrawn from its station by any co-ordinate authority."

1 Thayer, Life of John Marshall, 79, 80. Same view, see post, I, p. 233. See Ford's Jefferson, IX, 62; draft of a letter to District Attorney Hay, given post, p. xlix, note. Magruder thus concludes his review of the trial of Burr (Life of Marshall, 230): "Thus ended a State trial, the most famous which took place in the United States prior to the impeachment of President Johnson. It could have had no other conclusion in accordance with law. Whether Burr was morally guilty was a question which has been since so much discussed that it cannot be regarded as having been settled by the verdict, but that he was not legally proved to be guilty is certain. The duty of holding the scales of justice even at this trial was the most difficult that Marshall had to encounter during his incumbency on the bench. Jefferson succeeded in importing so much personal feeling and partisanship into the proceedings that the trial wore a very peculiar aspect. There was more in it than party hostility; there was open antagonism between the President of the United States and the Chief Justice; there were also covert and indirect but powerful influences at work in aid of the prosecution. No action of Marshall could have escaped contemporary criticism, and in this case he did not escape it. He was very severely attacked by many persons who honestly thought that he had done wrong. But the fairer judgment of posterity has given him credit for perfect impartiality and for sound, even-handed and courageous administration of the law. The issuing of the subpoena to Jefferson alone remains a controverted point; yet as to this it must be admitted that no authority can be higher or more satisfactory than that of the Chief Justice himself."