Hay was sadly confused. He would try to get all the papers wanted if Marshall would say that they were material. How, asked Marshall, could the court decide that question without inspecting the papers? "Why ...
issue a subpoena to the President?" inquired Hay. Because, responded Marshall, "in case of a refusal to send the papers, the officer himself may be present to show cause. This subpoena is issued only where fears of this sort are entertained."
Counsel on both sides became angry. Hay denied the authority of the court to issue such a writ. Marshall called for argument, because, he said, "I am not prepared to give an opinion on this point."[1098] Thus arose the bitter forensic struggle that preceded Marshall"s historic order to Jefferson to come into court with the papers demanded, or to show cause why he should not do so.
Hay instantly dispatched the news to Jefferson; he hoped the papers would be "forwarded without delay," because "detention of them will afford [Burr] pretext for clamor." Besides, "L. Martin has been here a long time, perfectly inactive"; he was yearning to attack Jefferson and this would "furnish a topic."[1099]
The President responded with dignified caution: "Reserving the necessary right of the President of the U S to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom, I a.s.sure you of my readiness under that restriction, voluntarily to furnish on all occasions, whatever the purposes of justice may require." He had given the Wilkinson letter, he said, to the Attorney-General, together with all other doc.u.ments relating to Burr, and had directed the Secretary of War to search the files so that he (Jefferson) could "judge what can & ought to be done"
about sending any order of the Department to Richmond.[1100]
When Marshall opened court on June 10, Burr made affidavit that the letters and orders might be material to his defense. Hay announced that he had written Jefferson to send the desired papers and expected to receive them within five days. They could not, however, be material, and he did not wish to discuss them. Martin insisted that the papers be produced. Wickham asked what Hay was trying to do--probably trying to gain time to send to Washington for instructions as to how the prosecution should now act.
Was not "an accused man ... to obtain witnesses in his behalf?" Never had the denial of such a right been heard of "since the declaration of American Independence." The despotic treatment of Burr called aloud not only for the court"s protection of the persecuted man, but "to the protection of every citizen in the country as well."[1101] So it seemed to that discerning fledgling author, Washington Irving. "I am very much mistaken," he wrote, "if the most underhand ... measures have not been observed toward him. He, however, retains his serenity."[1102]
Luther Martin now took the lead: Was Jefferson "a kind of sovereign?"
No! "He is no more than a servant of the people." Yet who could tell what he would do? In this case his Cabinet members, "under presidential influence," had refused copies of official orders. In another case "the officers of the government screened themselves ... under the sanction of the president"s name."[1103] The same might be done again; for this reason Burr applied "directly to the president." The choleric legal giant from Maryland could no longer restrain his wrath: "This is a peculiar case," he shouted. "The president has undertaken to prejudice my client by declaring, that "of his guilt there can be no doubt." He has a.s.sumed to himself the knowledge of the Supreme Being himself, and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of that country, which has rewarded him. He has let slip the dogs of war, the h.e.l.l-hounds of persecution, to hunt down my friend."
"And would this president of the United States, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake?" That was a denial of "a sacred principle. Whoever withholds, wilfully, information that would save the life of a person, charged with a capital offence, is substantially a murderer, and so recorded in the register of heaven." Did Jefferson want Burr convicted? Impossible thought! "Would the president of the United States give his enemies ... the proud opportunity of saying that colonel Burr is the victim of anger, jealousy and hatred?" Interspersed with these outbursts of vitriolic eloquence, Martin cited legal authorities.
Never, since the days of Patrick Henry, had Richmond heard such a defiance of power.[1104]
Alexander MacRae did his best to break the force of Martin"s impetuous attack. The present question was "whether this court has the right to issue a subpoena _duces tec.u.m_, addressed to the president of the United States." MacRae admitted that "a subpoena may issue against him as well as against any other man." Still, the President was not bound to disclose "confidential communications." Had not Marshall himself so ruled on that point in the matter of Attorney-General Lincoln at the hearing in Marbury _vs._ Madison?[1105]
Botts came into the fray with his keen-edged sarcasm. Hay and Wirt and MacRae had "reprobated" the action of Chase when, in the trial of Cooper, that judge had refused to issue the writ now asked for; yet now they relied on that very precedent. "I congratulate them upon their dereliction of the old democratic opinions."[1106]
Wirt argued long and brilliantly. What were the "orders," military and naval, which had been described so thrillingly? Merely to "apprehend Aaron Burr, and _if ... necessary ... to destroy his boats_." Even the "sanguinary and despotic" orders depicted by Burr and his counsel would have been a "great and glorious virtue" if Burr "was aiming a blow at the vitals of our government and liberty." Martin"s "fervid language"
had not been inspired merely by devotion to "his honourable friend,"
said Wirt. It was the continued pursuit of a "policy settled ... before Mr. Martin came to Richmond." Burr"s counsel, on the slightest pretext, "flew off at a tangent ... to launch into declamations against the government, exhibiting the prisoner continually as a persecuted patriot: a Russell or a Sidney, bleeding under the scourge of a despot, and dying for virtue"s sake!"
He wished to know "what gentlemen can intend, expect, or hope, from these perpetual philippics against the government? Do they flatter themselves that this court feel political prejudices which will supply the place of argument and of innocence on the part of the prisoner?
Their conduct amounts to an insinuation of the sort." What would a foreigner "infer from hearing ... the judiciary told that the administration are "blood hounds," hunting this man with a keen and savage thirst for blood," and witnessing the court receive this language "with all complacency?" Surely no conclusion could be made very "honourable to the court. It would only be inferred, while they are thus suffered to roll and luxuriate in these gross invectives against the administration, that they are furnishing the joys of a Mahomitan paradise to the court as well as to their client."[1107]
Here was as bold a challenge to Marshall as ever Erskine flung in the face of judicial arrogance; and it had effect. Before adjourning court, Marshall addressed counsel and auditors: he had not interfered with a.s.sertions of counsel, made "in the heat of debate," although he had not approved of them. But now that Wirt had made "a pointed appeal" to the court, and the Judges "had been called upon to support their own dignity, by preventing the government from being abused," he would express his opinion. "Gentlemen on both sides had acted improperly in the style and spirit of their remarks; they had been to blame in endeavoring to excite the prejudices of the people; and had repeatedly accused each other of doing what they forget they have done themselves."
Marshall therefore "expressed a wish that counsel ... would confine themselves on every occasion to the point really before the court; that their own good sense and regard for their characters required them to follow such a course." He "hoped that they would not hereafter deviate from it."[1108]
His gentle admonition was scarcely heeded by the enraged lawyers.
Wickham"s very "tone of voice," exclaimed Hay, was "calculated to excite irritation, and intended for the mult.i.tude." Of course, Jefferson _could_ be subpoenaed as a witness; that was in the discretion of the court. But Marshall ought not to grant the writ unless justice required it. The letter might be "of a private nature"; if so, it ought not to be produced. Martin"s statement that Burr had a right to resist was a "monstrous ... doctrine which would have been abhorred even in the most turbulent period of the French revolution, by the jacobins of 1794!"
Suppose, said Hay, that Jefferson had been "misled," and that "Burr was peaceably engaged in the project of settling his Was.h.i.ta lands!" Did that give him "a right to resist the president"s orders to stop him?"
Never! "This would be treason." The a.s.sertion of the right to disobey the President was the offspring of "a new-born zeal of some of the gentlemen, in defence of the rights of man."[1109]
Why await the arrival of Wilkinson? asked Edmund Randolph. What was expected of "that great accomplisher of all things?" Apparently this: "He is to support ... the _sing-song_ and the ballads of treason and conspiracy, which we have heard delivered from one extremity of the continent to the other. The funeral pile of the prosecution is already prepared by the hands of the public attorney, and nothing is wanting to kindle the fatal blaze but the torch of James Wilkinson," who "is to officiate as the high priest of this human sacrifice.... Wilkinson will do many things rather than disappoint the wonder-seizing appet.i.te of America, which for months together he has been gratifying by the most miraculous actions." If Burr were found guilty, Wilkinson would stand acquitted; if not, then "the character, the reputation, every thing ...
will be gone for ever from general Wilkinson."
Randolph"s speech was a masterpiece of invective. "The President testifies, that Wilkinson has testified to him fully against Burr; then let that letter be produced. The President"s declaration of Burr"s guilt is unconst.i.tutional." It was not the business of the President "to give opinions concerning the guilt or innocence of any person." Directly addressing Marshall, Randolph continued: "With respect to your exhortation," that Burr"s appeal was to the court alone, "we demand justice only, and if you cannot exorcise the demon of prejudice, you can chain him down to law and reason, and then we shall have nothing to fear."[1110]
The audacious Martin respected Marshall"s appeal to counsel even less than Hay and Randolph had done. The prosecution had objected to the production of Wilkinson"s mysterious letter to Jefferson because it might contain confidential statements. "What, sir," he shouted, "shall the cabinet of the United States be converted into a lion"s mouth of Venice, or into a _repertorium_ of the inquisition? Shall envy, hatred, and all the malignant pa.s.sions pour their poison into that cabinet against the character and life of a fellow citizen, and yet that cabinet not be examined in vindication of that character and to protect that life?"
Genuine fury shook Martin. "Is the life of a man, lately in high public esteem ... to be endangered for the sake of punctilio to the president?"
Obey illegal orders! "If every order, however arbitrary and unjust, is to be obeyed, we are slaves as much as the inhabitants of Turkey. If the presidential edicts are to be the supreme law, and the officers of the government have but to register them, as formerly in France, ... we are as subject to despotism, as ... the subjects of the former "_Grands Monarques_.""[1111]
Now occurred as strange a mingling of acrimony and learning as ever enlightened and enlivened a court. Burr"s counsel demanded that Marshall deliver a supplementary charge to the grand jury. Marshall was magnificently cautious. He would, he said, instruct the jury as confused questions arose. On further reflection and argument--Marshall"s dearly beloved argument--he wrote additional instructions,[1112] but would not at present announce them. There must be an actual "levying of war"; the overt act must be established; no matter what suspicions were entertained, what plans had been formed, what enterprises had been projected, there could be "no treason without an overt act."[1113]
In such would-and-would-not fashion Marshall contrived to waive this issue for the time being. Then he delivered that opinion which proved his courage, divided Republicans, stirred all America, and furnished a theme of disputation that remains fresh to the present day. He decided to grant Burr"s demand that Jefferson be called into court with the papers asked for.
The purpose of the motion was, said Marshall, to produce copies of the army and navy orders for the seizure of Burr, the original of Wilkinson"s letter to Jefferson, and the President"s answer. To accomplish this object legally, Burr had applied for the well-known subpoena _duces tec.u.m_ directed to the President of the United States.
The objection that until the grand jury had indicted Burr, no process could issue to aid him to obtain testimony, was, Marshall would not say new elsewhere, but certainly it had never before been heard of in Virginia. "So far back as any knowledge of our jurisprudence is possessed, the uniform practice of this country [Virginia] has been, to permit any individual ... charged with any crime, to prepare for his defence and to obtain the process of the court, for the purpose of enabling him so to do." An accused person must expect indictment, and has a right to compel the attendance of witnesses to meet it. It was perhaps his duty to exercise that right: "The genius and character of our laws and usages are friendly, not to condemnation at all events, but to a fair and impartial trial."
In all criminal prosecutions the Const.i.tution, Marshall pointed out, guarantees to the prisoner "a speedy and public trial, and to compulsory process for obtaining witnesses in his favour." The courts must hold this "sacred," must construe it "to be something more than a dead letter." Moreover, the act of Congress undoubtedly contemplated "that, in all capital cases, the accused shall be ent.i.tled to process before indictment found." Thus "immemorial usage," the language of the Const.i.tution, the National statute, all combined to give "any person, charged with a crime in the courts of the United States, ... a right, before, as well as after indictment, to the process of the court to compel the attendance of his witnesses."
But could "a subpoena _duces tec.u.m_ be directed to the president of the United States?" If it could, ought it to be "in this case"? Neither in the Const.i.tution nor in an act of Congress is there any exception whatever to the right given all persons charged with crime to compel the attendance of witnesses. "No person could claim an exemption." True, in Great Britain it was considered "to be incompatible with his dignity"
for the King "to appear under the process of the court." But did this apply to the President of the United States? Marshall stated the many differences between the status of the British King and that of the American President.
The only possible ground for exempting the President "from the general provisions of the const.i.tution" would be, of course, that "his duties ... demand his whole time for national objects. But," continued Marshall, "it is apparent, that this demand is not unremitting"--a statement at which Jefferson took particular offense.[1114] Should the President be so occupied when his presence in court is required, "it would be sworn on the return of the subpoena, and would rather const.i.tute a reason for not obeying the process of the court, than a reason against its being issued."
To be sure, any court would "much more cheerfully" dispense with the duty of issuing a subpoena to the President than to perform that duty; "but, if it be a duty, the court can have no choice" but to perform it.
If, "as is admitted by counsel for the United States," the President may be "summoned to give his personal attendance to testify," was that power nullified because "his testimony depends on a paper in his possession, not on facts which have come to his knowledge otherwise than by writing?" Such a distinction is "too much attenuated to be countenanced in the tribunals of a just and humane nation."[1115] The character of the paper desired as evidence, and not "the character of the person who holds it," determines "the propriety of introducing any paper ... as testimony."
It followed, then, that "a subpoena _duces tec.u.m_ may issue to any person to whom an ordinary subpoena may issue." The only difference between the two writs is that one requires only the attendance of the witness, while the other directs also "bringing with him a paper in his custody."
In many States the process of subpoena _duces tec.u.m_ issues of course, and without any action of the judge. In Virginia, however, leave of the court is required; but "no case exists ... in which the motion ... has been denied or in which it has been opposed," when "founded on an affidavit."
The Chief Justice declared that he would not issue the writ if it were apparent that the object of the accused in applying for it was "not really in his own defence, but for purposes which the court ought to discountenance. The court would not lend its aid to motions obviously designed to manifest disrespect to the government; but the court has no right to refuse its aid to motions for papers to which the accused may be ent.i.tled, and which may be material in his defence." If this was true in the matter of Burr"s application, "would it not be a blot in the page, which records the judicial proceedings of this country, if, in a case of such serious import as this, the accused should be denied the use" of papers on which his life might depend?
Marshall carefully examined a case cited by the Government[1116] in which Justice Paterson had presided, at the same time paying to the memory of the deceased jurist a tribute of esteem and affection. He answered with tedious particularity the objections to the production of Wilkinson"s letter to Jefferson, and then referred to the "disrespect"
which the Government counsel had a.s.serted would be shown to the President if Marshall should order him to appear in court with the letters and orders.
"This court feels many, perhaps peculiar motives, for manifesting as guarded respect for the chief magistrate of the Union as is compatible with its official duties." But, declared Marshall, "to go beyond these ... would deserve some other appellation than the term respect."
If the prosecution should end, "_as is expected_" by the Government, those who withheld from Burr any paper necessary to his defense would, of course, bitterly regret their conduct. "I will not say, that this circ.u.mstance would ... tarnish the reputation of the Government; but I will say, that it would justly tarnish the reputation of the court, which had given its sanction to its being withheld."
With all that impressiveness of voice and manner which, on occasion, so transformed Marshall, he exclaimed: "Might I be permitted to utter one sentiment, with respect to myself, it would be to deplore, most earnestly, the occasion which should compel me to look back on any part of my official conduct with so much self-reproach as I should feel, could I declare, on the information now possessed, that the accused is not ent.i.tled to the letter in question, if it should be really important to him."
Let a subpoena _duces tec.u.m_, therefore ruled the Chief Justice, be issued, directed to Thomas Jefferson, President of the United States.[1117]
Nothing that Marshall had before said or done so highly excited counsel for the prosecution as his a.s.sertion that they "expected" Burr"s conviction. The auditors were almost as deeply stirred. Considering the peculiarly mild nature of the man and his habitual self-restraint, Marshall"s language was a pointed rebuke, not only to the Government"s attorneys, but to the Administration itself. Even Marshall"s friends thought that he had gone too far.
Instantly MacRae was on his feet. He resented Marshall"s phrase, and denied that the Government or its counsel "wished" the conviction of Burr--such a desire was "completely abhorrent to [their] feelings."
MacRae hoped that Marshall did not express such an opinion deliberately, but that it had "accidentally fallen from the pen of [his] honor."
Marshall answered that he did not intend to charge the Administration or its attorneys with a desire to convict Burr "whether he was guilty or innocent"; but, he added dryly, "gentlemen had so often, and so uniformly a.s.serted, that colonel Burr was guilty, and they had so often repeated it before the testimony was perceived, on which that guilt could alone be substantiated, that it appeared to him probable, that they were not indifferent on the subject."[1118]
Hay, in his report to Jefferson, gave more s.p.a.ce to this incident than he did to all other features of the case. He told the President that Marshall had issued the dreaded process and then quoted the offensive sentence. "This expression," he relates, "produced a very strong & very general sensation. The friends of the Judge, both personal & political, Condemned it. Alex^{r.} M^{c}Rae rose as soon as he had finished, and in terms mild yet determined, demanded an explanation of it. The Judge actually blushed." And, triumphantly continues the District Attorney, "he did attempt an explanation.... I observed, with an indifference which was not a.s.sumed, that I had endeavored to do my duty, according to my own judgment and feelings, that I regretted nothing that I had said or done, that I should pursue the same Course throughout, and that it was a truth, that I cared not what _any man_ said or thought about it."
Marshall himself was perturbed. "About three hours afterwards," Hay tells Jefferson, "when the Crowd was thinned, the Judge acknowledged the impropriety of the expression objected to, & informed us from the Bench that he had erased it." The Chief Justice even apologized to the wrathful Hay: "After he had adjourned the Court, he descended from the Bench, and told me that he regretted the remark, and then by way of apology said, that he had been so pressed for time, that he had never read the opinion, after he had written it." Hay loftily adds: "An observation from me that I did not perceive any connection between my declarations & his remark, or how the former could regularly be the Cause of the latter, closed the Conversation."[1119]
Hay despondently goes on to say that "there never was such a trial from the beginning of the world to this day." And what should he do about Bollmann? That wretch "resolutely refuses his pardon & is determined not to utter a word, if he can avoid it. The pardon lies on the clerks table. The Court are to decide whether he is really pardoned or not.
Martin says he is not pardoned. Such are the questions, with which we are worried. If the Judge says that he is not pardoned, I will take the pardon back. What shall I then do with him?"