“If upon any principle,” said he, “the President could be construed to stand exempt from the general provisions of the Constitution, it would be because his duties as chief magistrate demand his whole time for national objects. But it is apparent that this demand is not unremitting; and if it should exist at the time when his attendance on a court is required, it would be sworn on the return of the subpœna, and would rather constitute a reason for not obeying the process of the court than a reason against its being issued.... It cannot be denied that to issue a subpœna to a person filling the exalted station of the chief magistrate is a duty which would be dispensed with much more cheerfully than it would be performed; but if it be a duty, the court can have no choice in the case.”
Nothing could irritate Jefferson more sensibly than this decision. Only a few months before, in the trial of Smith and Ogden for complicity with Miranda, he had ordered his Cabinet to disregard the summons of the court. Luther Martin did not fail to fling reproach on him for this act. “In New York, on the farcical trial of Ogden and Smith, the officers of the government screened themselves from attending, under the sanction of the President’s name. Perhaps the same farce may be repeated here.” To be insulted by Martin and to be ordered about the country by Marshall, exasperated Jefferson beyond reason. He wrote letter after letter to Hay, filled with resentment:—
“The leading feature of our Constitution 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 smaller 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 executive duties?”[316]
The Judiciary never admitted the propriety of this reasoning,[317] which was indeed no answer to Marshall’s argument. Unless the President of the United States were raised above the rank of a citizen, and endowed with more than royal prerogatives, no duty could be more imperative upon him than that of lending every aid in his power to the Judiciary in a case which involved the foundations of civil society and government. No Judiciary could assume at the outset that Executive duties would necessarily be interrupted by breaking Jefferson’s long visits to Monticello in order to bring him for a day to Richmond. Consciousness of this possible rejoinder disturbed the President’s mind so much that he undertook to meet it in advance:—
“The Judge says ‘it is apparent that the President’s duties as chief magistrate do not demand his whole time, and are not unremitting.’ If 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 the public business, at and between the several stations we take, that it goes on as unremittingly there as if we were at the seat of government.”
The district-attorney would hardly have dared tell this to the chief-justice, for he must have felt that Marshall would treat it as an admission. If arrangements could be made for carrying on the public business at Monticello, why could they not be made for carrying it on at Richmond?
Perhaps temper had more to do with Jefferson’s reasoning than he imagined. Nothing could be better calculated to nettle a philosophic President who believed the world, except within his own domain, to be too much governed, than the charge that he himself had played the despot and had trampled upon private rights; but that such charges should be pressed with the coarseness of Luther Martin, and should depend on the rulings of John Marshall, seemed an intolerable outrage on the purity of Jefferson’s intentions. In such cases an explosion of anger was a common form of relief. Even President Washington was said to have sometimes dashed his hat upon the ground, and the second President was famous for gusts of temper.
“I have heard, indeed,” wrote Jefferson,[318] “that my predecessor sometimes decided things against his Council by dashing and trampling his wig on the floor. This only proves, what you and I knew, that he had a better heart than head.”
Wigs were Federalist symbols of dignity and power. Republicans wore no wigs, and could use no such resource in moments of rage; but had President Jefferson worn the full paraphernalia of Federalism,—wig and powder, cocked hat and small sword,—he would never have shown his passion in acts of violence or in physical excitement. His sensitiveness relieved itself in irritability and complaints, in threats forgotten as soon as uttered, or in reflections tinged with a color of philosophic thought. His first impulse was to retaliate upon Martin and thrust him into the criminal dock. He wrote to Hay,[319]—
“Shall we move to commit Luther Martin as particeps criminis with Burr? Graybell will fix upon him misprision of treason at least. And at any rate his evidence will put down this unprincipled and impudent Federal bulldog, and add another proof that the most clamorous defenders of Burr are all his accomplices.”