The Trial of Aaron Burr

by Joseph P. Brady

SUBPŒNA DUCES TECUM FOR PRESIDENT JEFFERSON (Continued)

Facing p. 50

Mr. Wirt replied to Mr. Martin, and in the course of his argument, made the following reference to Martin’s arraignment of Jefferson and the administration:

“I cannot take my seat, sir, without expressing my deep and sincere sorrow at the policy which the gentlemen in the defense have thought it necessary to adopt. As to Mr. Martin, I should have been willing to impute this fervid language to the sympathies and resentments of that friendship which he has taken such frequent occasions to express for the prisoner, his honourable friend. In the cause of friendship I can pardon zeal even up to the point of intemperance; but the truth is, sir, that before Mr. Martin came to Richmond, this policy was settled, and on every question incidentally brought before the court, we were stunned with invectives against the administration. I appeal to your recollection, sir, whether this policy was not manifested even so early as in those new and until now unheard of challenges to the grand jury for favour? Whether that policy was not followed up with increased spirit, in the very first speeches which were made in this case; those of Mr. Botts and Mr. Wickham on their previous question pending the attorney’s motion to commit? Whether they have not seized with avidity every subsequent occasion, and on every mere question of abstract law before the court, flew off at a tangent from the subject, to launch into declamations against the government? Exhibiting the prisoner continually as a persecuted patriot; a Russell or a Sidney, bleeding under the scourge of a despot, and dying for virtue’s sake! If there be any truth in the charges against him, how different were the purposes of his soul from those of a Russell or a Sidney! I beg to know what gentlemen can intend, expect, or hope, from these perpetual philippics against the Government? Do they flatter themselves that this court feel political prejudices which will supply the place of argument and innocence on the part of the prisoner? Their conduct amounts to an insinuation of the sort. But I do not believe it. On the contrary, I feel the firm and pleasing assurance, that as to the court, the beam of their judgment will remain steady, although the earth itself should shake under the concussion of prejudice. Or is it on the bystanders that the gentlemen expect to make a favourable impression? And do they use the court merely as a canal, through which they may pour upon the world their undeserved invectives against the Government? Do they wish to divide the popular resentment and diminish thereby their own quota? Before the gentlemen arraign the administration, let them clear the skirts of their client. Let them prove his innocence; let them prove that he has not covered himself with the clouds of mystery and just suspicion; let them prove that he has been all along erect and fair, in open day, and that these charges against him are totally groundless and false. That will be the most eloquent invective which they can pronounce against the prosecution; but until they prove this innocence, it shall be in vain that they attempt to divert our minds to other objects, and other inquiries. We will keep our eyes on Aaron Burr until he satisfies our utmost scruple. I beg to know, sir, if the course which gentlemen pursue is not disrespectful to the court itself? Suppose there are any foreigners here accustomed to regular government in their own country, what can they infer from hearing the federal administration thus reviled to the federal judiciary? Hearing the judiciary told, that the administration are ‘Bloodhounds, hunting this man with a keen and savage thirst for blood; that they now suppose they have hunted him into their toils and have him safe.’ Sir, 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 inferences from it very honourable to the court. It would only be inferred, while they are thus suffered to roll and luxuriate in these gross invectives against the administration, that they are furnishing the joys of a Mahometan paradise to the court as well as to their client. I hope that the court, for their own sakes, will compel a decent respect to that government of which they themselves form a branch. On our part, we wish only a fair trial of this 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.”

The counsel for the prosecution admitted that the President of the United States was amenable to an ordinary subpœna ad testificandum as any other citizen, but that the application for a subpœna duces tecum was addressed to the discretion of the court, and did not issue as a process of right. Besides, the papers required to be produced by such a process must be shown to be material for the defense. They questioned the propriety of compelling the chief magistrate to produce in court any papers in his possession not public in its character. They further contended that until the grand jury had found a true bill and the prosecutor had announced his intention to proceed to a trial thereon the prisoner had no right to legal process.

After five days of debate the Chief Justice delivered an elaborate opinion on the motion of Colonel Burr. He decided that the subpœna duces tecum directed to the president of the United States might issue. He held that any person charged with a crime in the courts of the United States has a right, before, as well as after indictment, to the process of the court to compel the attendance of his witnesses; that in the provisions of the Constitution, and of the statutes which give to the accused a right to the compulsory process of the court, there is no exception whatever.

“If, upon any principle,” said the Chief Justice, “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 it being issued. The guard furnished to this high office to protect him from being harassed by vexatious and unnecessary subpœnas, is to be looked for in the conduct of a court after those subpœnas have issued; not in any circumstance which is to precede their being issued. If, in being summoned to give his personal attendance to testify, the law does not discriminate between the President and a private citizen, what foundation is there for the opinion, that this difference is created by the circumstance, that his testimony depends on a paper in his possession, not on facts, which come to his knowledge otherwise than by writing? The court can perceive no foundation for such an opinion. The propriety of introducing any paper into a case, as testimony, must depend on the character of the paper, not on the character of the person who holds it. A subpœna duces tecum, then, may issue to any person to whom any ordinary subpœna may issue, directing him to bring any paper of which the party praying it has a right to avail himself as testimony; if, indeed, that be the necessary process for obtaining the view of such paper.”

The decision of the Chief Justice and the strictures of Martin threw Jefferson into a violent rage. We find him promptly writing to Mr. Hay, “Shall we move to commit Luther Martin as particeps criminis with Burr? Grayball will fix upon him misprision of treason at least, and, at any rate, his evidence will pull down this unprincipled and impudent Federal bull-dog, and add another proof that the most clamorous defenders of Burr are all his accomplices.” And again he writes to Hay, after discussing at length the intimation in the decision of the Chief Justice that even the bodily presence of the President might be compelled by the court, which proposition he indignantly denied, “that the leading feature of our Constitution is the independence of the legislative, 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 and West and withdraw him entirely from his executive duties?”

The law and reasoning of the decision of the Chief Justice were convincing. Jefferson knew that under the Constitution the President had no superior right to those of any other citizen, and, while directing substantially all papers required by the subpœna duces tecum to be furnished, he refused to appear in person in court. He openly defied the process of the court. He intimated that if the court attempted to enforce its writ he would meet force with force. The Chief Justice realized what this meant, and the matter was quietly dropped.