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 subpœna duces tecum, addressed to the president of the United States." MacRae admitted that "a subpœna 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 assertions 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 multitude." Of course, Jefferson could be subpœnaed 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 Washita lands!" Did that give him "a right to resist the president's orders to stop him?" Never! "This would be treason." The assertion 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 appetite 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 unconstitutional." 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 passions 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?"