The President, declared Mr. Martin, had proclaimed Colonel Burr a traitor in the face of the country which had rewarded him. He had “let slip the dogs of war, the hell-hounds of prosecution to hunt down my friend.” And would the President of the United States, who had raised all this absurd clamor, pretend to keep back the papers which were wanted for this trial where life itself was at stake?
It was, continued Mr. Martin, a sacred principle that in all such cases the accused had a right to all the evidence needed for his defense. Then, releasing his venom on Mr. Jefferson, he exclaimed: “Whoever withholds willfully information that would save the life of a person charged with a capital offense, is substantially a murderer, and so recorded in the register of Heaven.”
Mr. Wirt of the prosecution jumped to his feet to express his astonishment at the unrestrained language used by Mr. Martin. He even had the temerity to attack the Chief Justice for permitting it in his Court. Suppose, he said, there were foreigners present accustomed to regular government in their own country. What would they infer from hearing the Federal Administration thus reviled before the Federal judiciary and the Administration likened to “blood hounds hunting the man with a keen and savage thirst for blood”?
“Sir,” protested Wirt, looking squarely at Judge Marshall, “no man, foreigner or citizen, who hears this language addressed to the Court, and received with all the complacency at least which silence can imply, can make any inference from it very honorable to the Court.” He hoped the Court would compel a decent respect for that government of which they themselves formed a branch.
As for tracking the accused with bloodhounds thirsting for blood, Mr. Wirt wished to make it clear that, for their part, the prosecution wished only a fair trial of the case. “If the man be innocent, in the name of God let him go; but while we are on the question of his guilt or innocence, let us not suffer our attention and judgment to be diverted and distracted by the introduction of other subjects foreign to the inquiry.”
For three days opposing counsel held forth until the Chief Justice, with a sigh of exhaustion, announced that he had heard enough arguments on which to base a sound opinion. He then proceeded to deliver it. If, said Judge Marshall, upon any principle the President could be construed to stand exempt from the general provisions of the Constitution, it would be because his duties as chief magistrate demanded his whole time for national objects. But, he observed, it was apparent that this demand “was not unremitting.”
The last remark was a sly dig at Mr. Jefferson for spending several months every summer away from Washington at Monticello, his country estate in Albemarle County, Virginia.
Now, continued Judge Marshall, if the public’s demand on the President’s time should exist when his attendance at court was required, it could be sworn to on the return of the subpoena. It might serve as an excuse for not obeying the Court. But it did not serve as a reason for not issuing the subpoena.
The Chief Justice now assumed an apologetic attitude. It could not be denied, he said, that to issue a subpoena to a person filling the exacting position of chief magistrate was a duty which would be dispensed with much more cheerfully than it would be performed. But if it was a duty the Court could have no choice in the case. He recognized that the right to call the President into court could be abused. But, he assured, “the guard furnished to this high officer to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of the Court after those subpoenas have been issued.”
In short, what Judge Marshall said was that the decision as to whether it was appropriate for Mr. Jefferson to appear in Court rested with the Chief Justice, not with the President.