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 subpœna duces tecum 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 Constitution, 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 entitled to process before indictment found." Thus "immemorial usage," the language of the Constitution, 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 subpœna duces tecum be directed to the president of the United States?" If it could, ought it to be "in this case"? Neither in the Constitution 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 constitution" 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 subpœna, and would rather constitute 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 subpœna 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."