the various prosecutions which might be instituted, and that no appeal lay from their decisions. Opposite judgments on the point would have presented a state of things infinitely to be deplored by all. It was not surprising, then, that they should have made some attempt to settle principles which would probably occur and which were in some degree connected with the point before them."1

Jefferson earnestly denied the soundness of every proposition involved in the decision of Marbury's Case. He denied (1) that Marbury had any legal right to his undelivered commission; but, if so, he denied (2) that the court had any power to issue a mandamus to a coordinate department of the Government; and he afterwards denied (3) that the court could interpose what he terms a "judicial veto" upon an act of another coordinate department, namely the legislative department. Marshall was therefore not only warranted on sɔund legal principles to deal with the case precisely as he did in his opinion, but the extraordinary and novel circumstances made it entirely proper, if not necessary, to deal with it in this manner. In any just sense, no part of the opinion is obiter, a word denoting something not easy to define with absolute precision and often difficult to apply. I forbear further observations, except to say that in these volumes will be found a more extended vindica

1 Burr's Trial (Robertson), II, 405.

tion of Marshall's course by an eminent judge1 and an eminent lawyer, in whose views and conclusions I fully

concur.

VIII.

The late Mr. Justice Stephen commences his Story of Nuncomar and the Impeachment of Sir Elijah Impey on the accusations of Warren Hastings, in these words: "In writing the History of the Criminal Law of England,' I was much struck with the way in which nearly all of the most important parts of our history connect themselves one way or another with the administration of criminal justice, and with the importance which, in writing history, attaches to a technical knowledge of the law." This observation, if not so fully true of American as of English history, is emphatically true of the cases of Aaron Burr indicted for treason and also for setting on foot an unlawful military expedition against the then Spanish province of Mexico. None of Marshall's rulings on these celebrated trials is questioned except the one awarding writs of subpoena duces tecum addressed to President Jefferson commanding him to appear at the court in Richmond and produce certain designated letters of General Wilkinson to the President, which Burr stated on oath

1 Francis M. Finch, sometime Judge of the Court of Appeals of the State of New York, Address, Vol. I, 394 et seq.

2 U. M. Rose, late President of the American Bar Association, Address, Vol. III, 115 et seq.

might be material to his defense. The details which I have gathered from Robertson's short-hand report of the trial, Jefferson's letters to District Attorney Hay and Randall's Life of Jefferson, so far as material, are given in the margin.'

66

1 Before indictment found, Burr made an affidavit, June 10, 1807, in pursuance of notice given the day before, that he had great reason to believe that General Wilkinson's letter to President Jefferson, dated October 21, 1806, mentioned in the President's message of January 22, 1807, with the accompanying documents and the President's answer, may be material in his defense," and asked a subpoena duces tecum directed to the President commanding him or the Secretaries having them in charge to appear in court bringing the letter of General Wilkinson and the documents and the President's answer to the letter. (Burr's Trial, I, 119.) Whether such a subpoena could be awarded in any case, or on the showing made it ought to be awarded, was discussed at the bar for three days with no little warmth and asperity by Burr himself and by Wickham, Martin, Edmund Randolph and Botts, his counsel, in support of the motion, and by Hay, MacRae and Wirt in opposition to it. The arguments ended June 12.

On June 9, as soon as the subpoena was applied for, District Attor ney Hay, in open court, promised if possible to obtain the papers, saying he had no doubt he should succeed. Counsel being unable to make any arrangement as to the production of the papers, the Chief Justice, June 13, delivered an elaborate opinion (Burr's Trial, I, 177– 189) holding that the court had the power to issue a subpœna duces tecum directed to the President, and that the showing made therefor was sufficient. An express having been immediately sent by Burr with the subpoena to the President, the messenger returned with "a verbal reply from the President that the papers wanted would not be sent by him," i.e. by the messenger. (Burr's Trial, I, 211–249.) In fact, the President, on application of the district attorney, had already voluntarily sent the papers as far as he had them in his possession to that officer accompanied with a letter dated June 12, which began: "Your letter of the 9th is this moment received. Reserving the necessary right of the President of the United States to decide independently of all other authority what papers coming to him as President the

The legality or propriety of Marshall's orders grant ing subpoenas to the Executive head of the Government to appear in court as a witness or to appear and produce

public interest permits to be communicated, and to whom, I assure you of my readiness, under that restriction, voluntarily to furnish, on all occasions, whatever the purposes of justice may require." (Burr's Trial, I, 210.)

The President, June 17, wrote a similar letter supplemental to the foregoing, stating that he had ordered the Secretary of War to furnish copies of the orders desired by the defendant, and offering to give his deposition in Washington “if the defendant supposes that there are any facts within the knowledge of the heads of the departments, or of myself, which can be useful for his defense." (Id., I, 254.) But the President expressly denied any obligation or duty to attend in person at Richmond, stating the reasons and ground of this view in the following language: "As to our personal attendance at Richmond, I am persuaded the court is sensible that paramount duties to the nation at large control the obligation of compliance with its summons in this case, as it would should we receive a similar one to attend the trials of Blennerhasset and others in the Mississippi Territory, those instituted in St. Louis and other places on the Western waters, or at any place other than the seat of government. To comply with such calls would leave the nation without an Executive branch, whose agency nevertheless is understood to be so constantly necessary that it is the sole branch which the Constitution requires to be always in function. It could not then intend that it should be withdrawn from its station by any co-ordinate authority." (Burr's Trial, I, 255; Randall's Life of Jefferson, III, 210.) The Presi dent also insisted that "from the nature of the case the Executive must be the sole judge of what proceedings and papers the public interest will permit to be published. . . . Consider yourself the organ for communicating these sentiments to the court." (Id. 211.)

On June 19, the President for the first time saw Marshall's opinion of the 13th, and in an unofficial letter to the District Attorney June 20, criticising the opinion, he repeats the foregoing views, and inquires: "But would the Executive be independent of the judiciary if he were subject to the commands of the latter; if the several courts could bandy him from pillar to post, keep him constantly

letters or documents has been the subject of controversy among lawyers from that time to the present, and different opinions thereon are expressed in the addresses here published.

truảging from north to south and east to west, and withdraw him entirely from his constitutional duties?" The President, anticipating that an attempt might possibly be made to arrest him for contempt of court for not responding in person to the subpoena, added: "The intention of the Constitution that each branch should be independent of the others is further manifested by the means it has furnished to each to protect itself from enterprises of force attempted on them by the others, and to none has it given more effectual or diversified means than to the Executive." (Randall's Life of Jefferson, III, 212.)

Thus rested the matter until the trial of Burr for treason August 17 to September 1, 1807, when the case of the Government failed because of its inability to make proof of the overt act of treason at Blennerhasset's Island as laid in the indictment, and, therefore, there was no necessity for the Wilkinson letter.

On the subsequent trial of Burr for misdemeanor in setting on foot a military expedition against the Mexican possessions of Spain, Burr, on September 4, 1807, renewed his application for the production of the above-mentioned letter of October 21, 1806, and also an. other letter from Wilkinson to the President of November 12 of the same year, for which a subpoena duces tecum had been awarded, saying in open court that "the President was in contempt, and he had a right to demand process of contempt against him." (Burr's Trial, II, 504.) The District Attorney made no objection to producing the letter of October 21, or the letter of November 12, except two passages therein, which he said were wholly irrelevant and improper to be disclosed, the President having expressly authorized him to keep back such parts of the letter as the District Attorney might think it would be improper to be made public. These parts had not, however, so far as the court was informed, been selected or designated by the President, nor had he declared it to be incompatible with the public welfare to disclose them. When Mr. Hay refused in open court to produce for public inspection the whole letter of November 12, Burr denying the right of the President to delegate his