The Chief Justice went on to defend his position. “It is not,” he said, “for the Court to anticipate the event of the present prosecution. Should it terminate as is expected on the part of the United States, all those who are concerned in it should certainly regret that a paper, which the accused believed to be essential to his defense; which may, for aught that now appears, be essential, had been withheld from him ... it would justly tarnish the reputation of the Court which had given its sanction to its being withheld.”
He therefore ordered that the subpoena duces tecum be issued to the President of the United States, or such of the secretaries of the departments as might have the paper mentioned.
The Chief Justice had hardly finished delivering his opinion when Mr. MacRae was up, clamoring for recognition. Unless his ears had deceived him, he said, he had heard the Chief Justice remark that should the case terminate “as is expected on the part of the United States.” Against any such remark Mr. MacRae protested with all his might.
“The impression,” he said, “which has been conveyed by the Court that we not only wished to have Aaron Burr accused, but that we wished to convict him, is completely abhorrent to our feelings.” The prosecution, he insisted, was interested only that Burr be tried.
Judge Marshall did not immediately repudiate the comment. On the contrary, he defended it on the ground that he had inferred as much from remarks made by them assuming the guilt of the prisoner. But later, after reflection, he thought better of it. At the close of Court he called the reporters to him and observed that he had no desire that the words complained of by Mr. MacRae should remain in the written opinion and so he had expunged them.
However impelling the demand on the President may have been to give his time to other official matters, it did not keep him from paying close attention to what was going on in Richmond. Messengers were constantly passing back and forth between him and the District Attorney bearing suggestions from the President for trying the case and reports of the proceedings from Hay. No sooner, therefore, had the request for the papers been made by Colonel Burr than the President was so apprised.
Mr. Jefferson replied promptly that, reserving his right to decide independent of all other authority, what papers coming to him as President the public interest permitted to be communicated, he assured his readiness voluntarily to furnish on all occasions whatever the purposes of justice might require.
Mr. Jefferson said he was under the impression that General Wilkinson’s letter of October 21 and all other papers relating to the charges against Burr had been turned over to the Attorney General when he first went to Richmond in March. He took for granted they had been left with Hay. Since he could not remember exactly what was in the papers he would leave it to Mr. Hay to exercise his discretion as to what part to communicate and what part to withhold.
As to the requests for the orders to the Army and the Navy, the President observed that supplying them would amount to laying open the whole executive books. But he would get the Secretary of War to look at the records. He added that if the defendant supposed there were any facts within the knowledge of the heads of departments, or of himself, which could be useful to the defense he would be glad to provide depositions.
“As to our personal attendance at Richmond,” the President informed Hay, “I am persuaded it is sensible that paramount duties to the nation at large control the obligation of compliance with their summons in this case, as they would, should we receive a similar one to attend the trials of Blennerhassett and others in Mississippi territory, those instituted at St. Louis and other places on the western waters ... to comply with such calls would leave the nation without an executive branch.”