United States attempting to obtain or effect by force and violence any object of a public nature or of general or national concern, is a levying of war against the United States within the contemplation of the Constitution;" leaving it to the jury to decide whether the purpose and intention of the defendants in doing what they did was treasonable.

Largely for this alleged misconduct in handing down an opinion under the circumstances briefly detailed, four years afterwards (1804) Judge Chase was impeached by the House of Representatives of high crimes and misde

meanors.

The opinions of Paterson, Iredell and Chase on the subject of treason in the above mentioned cases are those which are referred to and reviewed by Chief Justice Marshall in his opinion in the Burr case. See also cases reported in 2 Dallas; Trial of Samuel Chase, by Charles Evans, Appendix, p. 7 et seq. As to Fries case, see also "Forum," by David Paul Brown, I, 353.

In the Introduction to the John Marshall Memorial, I, Xxxi et seq., Judge Dillon comments on the issuance of a subpoena duces tecum to President Jefferson in the Burr trials, and, among other things, says: "None of Marshall's rulings on these celebrated trials [of Aaron Burr] is questioned except the one awarding writs of subpoena duces tecum addressed to President Jefferson commanding him to appear at the court in Richmond and produce certain designated letters of General Wilkinson to the President, which Burr stated on oath might be material to his defense. The legality or propriety of Marshall's orders granting subpoenas to the Executive head of the Government to appear in court as a witness or to appear and produce letters or documents has been the subject of controversy among lawyers from that time to the present, and different opinions thereon are expressed in the addresses here published.

"My own studies and reflections upon the subject have led me to the following conclusions:"

"1. No such divinity doth hedge' the President that by virtue of his office he is, in criminal cases, totally exempt from judicial process requiring his attendance as a

witness. In the absence of controlling legislation, a court in such cases has the power, agreeably to the rules and usages of law, to issue to him a subpoena generally to appear as a witness, or a subpoena duces tecum to produce a material and relevant document in his possession.

"Such was the express decision of Chief Justice Marshall in Burr's case; and accordingly he awarded, on Burr's application, a subpoena duces tecum directed to President Jefferson, then in Washington, requiring him to appear and produce at the trial in Richmond certain designated letters and documents in his possession or under his control, which the defendant stated under oath might be material to his defense.

"The substantial ground of the criticism of Marshall's action in subpoenaing the President is the imputed absolute independence, personal and official, of the Executive of any control by a co-ordinate department, and the inability of the court to enforce against the President obedience to the writ by proceedings for contempt, the argument being that the want of ability to enforce the writ demonstrates the want of power to issue it. These were Jefferson's views. He stated them distinctly in his letters to District Attorney Hay, and he directed that officer to communicate them to the court. In an unofficial letter to the same officer he clearly intimated that he would resist by force, as an invasion of the Executive province, any attempt on the part of the Judiciary to compel his personal attendance at Richmond, and thereby withdraw him from the exercise of his functions.

"The decision of the Chief Justice as to the power of the court, and, on a proper showing by the defendant, the duty of the court to issue the writ, seems to me to be

correct.

"2. Respecting the power and duty of the court upon the return of the writ, no certain rules, in the absence of legislation, can be laid down.

In the two opinions on this subject given by the Chief Justice on the Burr trials he reserved all such questions until the return of the process. He said: 'In no case of this kind would the court be required to proceed against the President as against an ordinary individual.' I cannot precisely lay down any general rule for such a case.' And he added: 'Perhaps the court ought to

consider the reasons which would induce the President to refuse to exhibit such a letter as conclusive on it, unless such letter could be shown to be absolutely necessary in the defense. Had the President, when he transmitted the letter [of November 12, 1806, to the District Attorney, Hay], subjected it to certain restrictions, and stated that in his judgment the public interest required certain parts of it to be kept secret, and had accordingly made a reservation of them, all proper respect would have been paid to it; but he has made no such reservation. This must be decided by himself, not by another for him.' "The trials for treason and misdemeanor broke down by reason of the failure of the Government's evidence to show that the defendant committed the offenses laid in the indictments at any place within the jurisdiction of the court, and the letters of General Wilkinson were not offered or used on the trials; and no further rulings were made by the court on the subject of the letters or of the respective powers of the President and the court."

The editor is permitted to give the following interesting letter from Mr. Justice Shiras, of the Supreme Court of the United States, bearing on the power of the judiciary to issue subpoenas duces tecum to the chief executive officer of a State or the Nation:

HON. JOHN F. DILLON:

PITTSBURG, June 13, 1903.

My Dear Judge:-The validity and effect of a subpoena from a court, addressed to the Governor of a State or to the President of the United States, was considered by the Supreme Court of Pennsylvania, in Appeal of Gov. Hartranft, 4th Norris, 85 Penn. 433.

A majority of that court held that, where such a writ had been sued out and served on the Governor of the State, it was a sufficient return if the Atty. Genl. of the State, appearing in the court, argued that such a functionary ought not, as a matter of law, to be called upon to make any return to such a writ that it was enough to show that the writ was served upon one who occupied the position of Governor of the State. A minority, speaking through Agnew, Chief Justice, held that the

proper course of the Governor, in such a case, was either to obey the behest of the writ by appearing in the court, or to make a return that affairs of State prevented him from leaving the seat of government, or that the subject of the inquiry in the court was of such a character as to affect the welfare of the State in such a way that, in his judgment, he ought not to be subjected to examination in a court of law. Such a return as the latter would exonerate the Governor from an attachment for disobeying the writ, but that a mere allegation that the person named in the writ was the Governor would not so exonerate him.

It would seem to me that the view of C. J. Agnew (who was, as you doubtless know, a jurist of high repute) was the sound one, and was the view of C. J. Marshall in the Burr case. However, as that was my contention as counsel in the Pennsylvania case, it may be that my judgment is biased by that circumstance.

Very truly yours,

GEORGE SHIRAS, JR.

REFERENCES TO UNITED STATES v. BURR, IN MARSHALL MEMORIAL.

VOL. I

Introduction by John F. Dillon, xxix, xxx, xxxi et seq., xliii et seq.; Justice Horace Gray, p. 71; Hon. Charles Freeman Libby, pp. 124, 125, 126, 127; Prof. Jeremiah Smith, p. 168; Prof. James Bradley Thayer, p. 233; Judge Le Baron Bradford Colt, pp. 306, 307; Charles E. Perkins, Esq., pp. 327 et seq.; Justice Nathaniel Shipman, p. 335; Hon. John F. Dillon, pp. 350, 367; Judge Francis M. Finch, p. 402; David J. Pancoast, Esq., p. 434: Justice James T. Mitchell, pp. 493, 494; Hon. John Bassett Moore, p. 518.

VOL IL

Hon. William Pinkney Whyte, p. 16; Charles J. Bonaparte, Esq., pp. 27, 29, 33, 34, 35, 36; Judge Charles H. Simonton, pp. 106, 107; Judge Horace H. Lurton, p. 209; Hon. John F. Follett, p. 271; Hon. Henry Cabot Lodge, pp. 327, 328; Hon. William Lindsay, p. 350; Isaac N. Phillips, Esq., pp. 383, note, 394; John N. Baldwin, Esq., pp. 438, 439; Hon. Henry Hitchcock, p. 516; Sanford B. Ladd, Esq., p. 560.

VOL IIL

Judge John H. Rogers, p. 35; Hon. James M. Woolworth, p. 85 et seq.; Justice Charles N. Potter, p. 105; Julius C. Gunter, Esq., pp. 113, 114; Hon. U. M. Rose (Colorado), p. 132 et seq.; Judge J. A. Cooper, p. 191; James E. Babb, Esq., p. 200; Hon. George H. Williams, p. 222; Horace G. Platt, Esq., pp. 235, 236; Judge Cornelius H. Hanford, pp. 252, 253; Charles E. Shepard, Esq., p. 271; Oration of W. H. Rawle, pp. 424 et seq.