Feeling as he did the President was greatly annoyed when Judge Marshall’s opinion was reported to him, still obstinately maintaining that he should appear in court. After reflection he sat down and framed a letter to Hay presenting his arguments against obeying the subpoena. The Chief Justice, he complained, as was usual with him when an opinion was to be supported, right or wrong, dwelt much on smaller objections and passed over those which were solid. He had laid down the general position that all persons owe obedience to subpoenas. But, argued Mr. Jefferson, if the Constitution enjoined a particular officer to be always engaged in a particular set of duties, did not that supersede the general law, subjecting him to minor duties inconsistent with these? “The Constitution enjoins his constant agency in the concerns of six millions of people. Is the law paramount to this which calls on him in behalf of a single one?”
Mr. Jefferson applied the Judge’s doctrine to his own case. Suppose, he said, the sheriff of Henrico County (in which the Judge was domiciled) should summon him from court to quell a riot. Would the Judge abandon major duties to perform lesser ones? Then he got down to the root of the matter, which was the battle being waged between the executive and the judiciary.
“The leading principle of our Constitution,” he reminded, “is the independence of the legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary if he were subject to the commands of the latter, and to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his constitutional duties?”
The President now came to the most personal part of the opinion in which the Chief Justice intimated that his duties were not unremitting. “If,” said Mr. Jefferson, “he alludes to our annual retirement from the seat of government, during the sickly season, he should be told that such arrangements are made for carrying on public business that it goes on as unremittingly there as if he were at the seat of government. I pass more hours in public business at Monticello than I do here every day and it is much more laborious, because all must be done in writing.”
Thus Mr. Jefferson excused himself from casting aside his official duties in Washington and departing posthaste to Richmond at the request of Aaron Burr and on the order of Judge Marshall. He still had to deal with his other tormentor, Luther Martin. The President was not very successful in concealing the fact that the vindictive attack of the Baltimore lawyer had gotten under his skin.
While Mr. Martin was shouting invectives against the President in Richmond there came into Mr. Jefferson’s hand a letter from a Mr. Graybill of Baltimore. Inquiry revealed that the writer was an old Revolutionary soldier who had set up as a flour merchant. According to the information reaching the President, Mr. Graybill was a man of respectable character whose word could be trusted implicitly. In his letter Mr. Graybill said that for more than a year it had been believed in Baltimore that Burr was engaged in some criminal enterprise and that Luther Martin knew all about it.
In his haste to even the score with Martin the President was carried away by the Graybill letter. He proposed to Hay that a subpoena be issued to Graybill to appear as a witness against Burr and, while Graybill was on the way, Hay might be considering how best to use his testimony. Then the President put forward a fantastic idea. How about summoning Luther Martin as a witness against Burr, meanwhile holding Graybill ready to confront Martin? How about the prosecution moving to commit Luther Martin as particeps criminis along with Burr? Graybill, Mr. Jefferson was assured, would fix upon him misprision of treason at least. Mr. Jefferson did return to realities sufficiently to admit that there might be some doubt whether the prosecution could legally examine a witness to discredit its own witness. He recognized, too, that lawyers considered themselves privileged from being forced to breaches of confidence.
“At any rate,” concluded Mr. Jefferson, “his [Graybill’s] evidence will put down this unprincipled and impudent Federal bulldog, and add another proof that the most glamorous defenders of Burr are all his accomplices. It will explain why L.M. flew so hastily to the aid of his ‘honorable friend,’ abandoning his clients and their property during a session of a principal court in Maryland, now filled, so I am told, with the clamors and ruin of his clients.”
The District Attorney, wisely perhaps, ignored these chimerical suggestions from the White House.
Still another incident illustrated the zeal of the President of the United States to win a conviction against Colonel Burr. It will be recalled that Dr. Eric Bollman, the German adventurer, was one of the messengers dispatched to Wilkinson with the fateful letter which Wilkinson later disclosed; that when the conspiracy collapsed Wilkinson arrested him and Swartwout and shipped them east to Washington under arrest on charges of treason. Bollman shortly thereafter went to the President and denied some of the exaggerated charges against Burr that were being published in the newspapers. Bollman’s purpose was to show that the plan did not involve a division of the Union, but only an expedition against Spain. He was received by the President in the presence of Secretary of State James Madison, who listened sympathetically to what he had to say. The President suggested that Bollman put his oral statements in writing, which Bollman did. The German admitted later that, because of his difficulties with the English language, some of his statements may have been misleading. It was his understanding that Mr. Jefferson promised not to use them against him or to let them out of his keeping. Mr. Jefferson appears to have understood differently.