It followed, then, that "a subpœna duces tecum may issue to any person to whom an ordinary subpœna 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 subpœna duces tecum 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 entitled, 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 asserted 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 circumstance 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 entitled to the letter in question, if it should be really important to him."
Let a subpœna duces tecum, 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 assertion 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."