Volume III Part 51 (2/2)
Obey illegal orders! ”If every order, however arbitrary and unjust, is to be obeyed, we are slaves as much as the inhabitants of Turkey. If the presidential edicts are to be the supreme law, and the officers of the government have but to register them, as formerly in France, ... we are as subject to despotism, as ... the subjects of the former '_Grands Monarques_.'”[1111]
Now occurred as strange a mingling of acrimony and learning as ever enlightened and enlivened a court. Burr's counsel demanded that Marshall deliver a supplementary charge to the grand jury. Marshall was magnificently cautious. He would, he said, instruct the jury as confused questions arose. On further reflection and argument--Marshall's dearly beloved argument--he wrote additional instructions,[1112] but would not at present announce them. There must be an actual ”levying of war”; the overt act must be established; no matter what suspicions were entertained, what plans had been formed, what enterprises had been projected, there could be ”no treason without an overt act.”[1113]
In such would-and-would-not fas.h.i.+on Marshall contrived to waive this issue for the time being. Then he delivered that opinion which proved his courage, divided Republicans, stirred all America, and furnished a theme of disputation that remains fresh to the present day. He decided to grant Burr's demand that Jefferson be called into court with the papers asked for.
The purpose of the motion was, said Marshall, to produce copies of the army and navy orders for the seizure of Burr, the original of Wilkinson's letter to Jefferson, and the President's answer. To accomplish this object legally, Burr had applied for the well-known subpoena _duces tec.u.m_ directed to the President of the United States.
The objection that until the grand jury had indicted Burr, no process could issue to aid him to obtain testimony, was, Marshall would not say new elsewhere, but certainly it had never before been heard of in Virginia. ”So far back as any knowledge of our jurisprudence is possessed, the uniform practice of this country [Virginia] has been, to permit any individual ... charged with any crime, to prepare for his defence and to obtain the process of the court, for the purpose of enabling him so to do.” An accused person must expect indictment, and has a right to compel the attendance of witnesses to meet it. It was perhaps his duty to exercise that right: ”The genius and character of our laws and usages are friendly, not to condemnation at all events, but to a fair and impartial trial.”
In all criminal prosecutions the Const.i.tution, Marshall pointed out, guarantees to the prisoner ”a speedy and public trial, and to compulsory process for obtaining witnesses in his favour.” The courts must hold this ”sacred,” must construe it ”to be something more than a dead letter.” Moreover, the act of Congress undoubtedly contemplated ”that, in all capital cases, the accused shall be ent.i.tled to process before indictment found.” Thus ”immemorial usage,” the language of the Const.i.tution, the National statute, all combined to give ”any person, charged with a crime in the courts of the United States, ... a right, before, as well as after indictment, to the process of the court to compel the attendance of his witnesses.”
But could ”a subpoena _duces tec.u.m_ be directed to the president of the United States?” If it could, ought it to be ”in this case”? Neither in the Const.i.tution nor in an act of Congress is there any exception whatever to the right given all persons charged with crime to compel the attendance of witnesses. ”No person could claim an exemption.” True, in Great Britain it was considered ”to be incompatible with his dignity”
for the King ”to appear under the process of the court.” But did this apply to the President of the United States? Marshall stated the many differences between the status of the British King and that of the American President.
The only possible ground for exempting the President ”from the general provisions of the const.i.tution” would be, of course, that ”his duties ... demand his whole time for national objects. But,” continued Marshall, ”it is apparent, that this demand is not unremitting”--a statement at which Jefferson took particular offense.[1114] Should the President be so occupied when his presence in court is required, ”it would be sworn on the return of the subpoena, and would rather const.i.tute a reason for not obeying the process of the court, than a reason against its being issued.”
To be sure, any court would ”much more cheerfully” dispense with the duty of issuing a subpoena to the President than to perform that duty; ”but, if it be a duty, the court can have no choice” but to perform it.
If, ”as is admitted by counsel for the United States,” the President may be ”summoned to give his personal attendance to testify,” was that power nullified because ”his testimony depends on a paper in his possession, not on facts which have come to his knowledge otherwise than by writing?” Such a distinction is ”too much attenuated to be countenanced in the tribunals of a just and humane nation.”[1115] The character of the paper desired as evidence, and not ”the character of the person who holds it,” determines ”the propriety of introducing any paper ... as testimony.”
It followed, then, that ”a subpoena _duces tec.u.m_ may issue to any person to whom an ordinary subpoena may issue.” The only difference between the two writs is that one requires only the attendance of the witness, while the other directs also ”bringing with him a paper in his custody.”
In many States the process of subpoena _duces tec.u.m_ issues of course, and without any action of the judge. In Virginia, however, leave of the court is required; but ”no case exists ... in which the motion ... has been denied or in which it has been opposed,” when ”founded on an affidavit.”
The Chief Justice declared that he would not issue the writ if it were apparent that the object of the accused in applying for it was ”not really in his own defence, but for purposes which the court ought to discountenance. The court would not lend its aid to motions obviously designed to manifest disrespect to the government; but the court has no right to refuse its aid to motions for papers to which the accused may be ent.i.tled, and which may be material in his defence.” If this was true in the matter of Burr's application, ”would it not be a blot in the page, which records the judicial proceedings of this country, if, in a case of such serious import as this, the accused should be denied the use” of papers on which his life might depend?
Marshall carefully examined a case cited by the Government[1116] in which Justice Paterson had presided, at the same time paying to the memory of the deceased jurist a tribute of esteem and affection. He answered with tedious particularity the objections to the production of Wilkinson's letter to Jefferson, and then referred to the ”disrespect”
which the Government counsel had a.s.serted would be shown to the President if Marshall should order him to appear in court with the letters and orders.
”This court feels many, perhaps peculiar motives, for manifesting as guarded respect for the chief magistrate of the Union as is compatible with its official duties.” But, declared Marshall, ”to go beyond these ... would deserve some other appellation than the term respect.”
If the prosecution should end, ”_as is expected_” by the Government, those who withheld from Burr any paper necessary to his defense would, of course, bitterly regret their conduct. ”I will not say, that this circ.u.mstance would ... tarnish the reputation of the Government; but I will say, that it would justly tarnish the reputation of the court, which had given its sanction to its being withheld.”
With all that impressiveness of voice and manner which, on occasion, so transformed Marshall, he exclaimed: ”Might I be permitted to utter one sentiment, with respect to myself, it would be to deplore, most earnestly, the occasion which should compel me to look back on any part of my official conduct with so much self-reproach as I should feel, could I declare, on the information now possessed, that the accused is not ent.i.tled to the letter in question, if it should be really important to him.”
Let a subpoena _duces tec.u.m_, therefore ruled the Chief Justice, be issued, directed to Thomas Jefferson, President of the United States.[1117]
Nothing that Marshall had before said or done so highly excited counsel for the prosecution as his a.s.sertion that they ”expected” Burr's conviction. The auditors were almost as deeply stirred. Considering the peculiarly mild nature of the man and his habitual self-restraint, Marshall's language was a pointed rebuke, not only to the Government's attorneys, but to the Administration itself. Even Marshall's friends thought that he had gone too far.
Instantly MacRae was on his feet. He resented Marshall's phrase, and denied that the Government or its counsel ”wished” the conviction of Burr--such a desire was ”completely abhorrent to [their] feelings.”
MacRae hoped that Marshall did not express such an opinion deliberately, but that it had ”accidentally fallen from the pen of [his] honor.”
Marshall answered that he did not intend to charge the Administration or its attorneys with a desire to convict Burr ”whether he was guilty or innocent”; but, he added dryly, ”gentlemen had so often, and so uniformly a.s.serted, that colonel Burr was guilty, and they had so often repeated it before the testimony was perceived, on which that guilt could alone be substantiated, that it appeared to him probable, that they were not indifferent on the subject.”[1118]
Hay, in his report to Jefferson, gave more s.p.a.ce to this incident than he did to all other features of the case. He told the President that Marshall had issued the dreaded process and then quoted the offensive sentence. ”This expression,” he relates, ”produced a very strong & very general sensation. The friends of the Judge, both personal & political, Condemned it. Alex^{r.} M^{c}Rae rose as soon as he had finished, and in terms mild yet determined, demanded an explanation of it. The Judge actually blushed.” And, triumphantly continues the District Attorney, ”he did attempt an explanation.... I observed, with an indifference which was not a.s.sumed, that I had endeavored to do my duty, according to my own judgment and feelings, that I regretted nothing that I had said or done, that I should pursue the same Course throughout, and that it was a truth, that I cared not what _any man_ said or thought about it.”
Marshall himself was perturbed. ”About three hours afterwards,” Hay tells Jefferson, ”when the Crowd was thinned, the Judge acknowledged the impropriety of the expression objected to, & informed us from the Bench that he had erased it.” The Chief Justice even apologized to the wrathful Hay: ”After he had adjourned the Court, he descended from the Bench, and told me that he regretted the remark, and then by way of apology said, that he had been so pressed for time, that he had never read the opinion, after he had written it.” Hay loftily adds: ”An observation from me that I did not perceive any connection between my declarations & his remark, or how the former could regularly be the Cause of the latter, closed the Conversation.”[1119]
Hay despondently goes on to say that ”there never was such a trial from the beginning of the world to this day.” And what should he do about Bollmann? That wretch ”resolutely refuses his pardon & is determined not to utter a word, if he can avoid it. The pardon lies on the clerks table. The Court are to decide whether he is really pardoned or not.
Martin says he is not pardoned. Such are the questions, with which we are worried. If the Judge says that he is not pardoned, I will take the pardon back. What shall I then do with him?”
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