Shout treason

by Francis F. Beirne

The business of Hay’s motion absorbed the attention of the Court for the better part of a week, but Wilkinson’s failure to appear continued to hold up proceedings. To a friend in New York Washington Irving wrote impatiently: “... you can little conceive the talents for procrastination that have been exhibited in this affair. Day after day we have been disappointed by the non-arrival of the magnanimous Wilkinson; day after day have fresh murmurs and complaints been uttered; and day after day are we told that the next mail will probably bring this noble self, or at least some account of when he may be expected.”

Finally the Court gave up hope of the immediate arrival of the General. The Chief Justice granted a recess of the Grand Jury for a week so that, as Irving put it, “they might go home, see their wives, and flog their Negroes.”

On Tuesday, June 9, the Jury was recalled and Court reconvened, but it had nothing to do. It was now the turn of the defense to provide diversion to keep the case from dying of inanition. Colonel Burr set things in motion by stating that he thought he might need for his defense a letter of General Wilkinson of October 21, 1806, addressed to President Jefferson, which had been mentioned by the President in his special message to Congress, and the President’s reply to the same. He also would like to have copies of the orders with reference to himself which had been issued to the Army and the Navy.

The Colonel said he had asked for the papers in Washington but without result. Therefore he requested the Chief Justice to issue a subpoena duces tecum to the President of the United States demanding either that he supply the papers or else come into court with them himself.

Burr’s request called for quick thinking on the part of the District Attorney. How was Hay to protect his master from the indignity of a summons yet at the same time prevent his being exposed to a charge of concealing evidence? How was he to offer assurances without pledging the Government to go farther than the President might want it to go?

Mr. Hay settled on a delaying action. He expressed confidence that the Government would comply with the request if the Court should consider the papers pertinent. On the other hand he doubted whether the Court had the power to issue a subpoena duces tecum to the President of the United States. And, suggested Mr. Hay, since the Government was perfectly willing to produce the papers if the Court decided they were pertinent, what need was there for issuing a subpoena at all? Such procedure he thought would be a waste of precious time.

Mention of time wasting brought a shout of derision from the defense. The prosecution, they retorted, had wasted enough of it. And suppose the Government in Washington—by which they meant Mr. Jefferson—turned out to be less obliging than the District Attorney? The Chief Justice here remarked somewhat wryly that the subpoena duces tecum usually was requested in cases where it was anticipated that the papers asked for would not be produced. He inquired directly of the District Attorney whether the prosecution would consent to the issuance of the subpoena. On Hay’s refusal to consent the Chief Justice called for argument.

There followed a prolonged debate, in which the Chief Justice allowed each lawyer to say his say with no apparent time limit. The situation was a delicate one for Mr. Jefferson. If he were to answer the subpoena by complying with a demand to appear in court in person the executive branch of the Government would be making abject surrender to the judiciary. If, on the other hand, he were to claim an exemption, he—the champion of equality of all men—would be claiming a special privilege which even the King of England hesitated to exercise.

The Government’s counsel therefore did not go so far as to deny that the President could be called. But Mr. Hay insisted that the defense had to show that the papers were relevant and material. Further, he contended that the President had a right to reserve any portion of the letters requested whose production in court he considered detrimental to the interests of the United States. Nor was Mr. Hay sure the President was under any obligation to present a letter that had been addressed to him privately. To this, lawyers of the defense replied that in his message to Congress Mr. Jefferson had stated that the letter was addressed to him not as a private individual but as President of the United States. Mr. Hay suggested that a copy of the letter might do. Mr. Wickham of the defense said they would not have it that way. They demanded the original.

The debate gave Luther Martin the opportunity to chastise Mr. Jefferson for which he had impatiently been waiting since his entry into the proceedings. The President, he asserted, had undertaken to prejudge Mr. Martin’s client by declaring that “of his guilt there can be no doubt.” He had assumed the knowledge of the Supreme Being himself, and pretended to search the heart of Mr. Martin’s highly respected friend.