paper in his possession, is not controverted. The President, although subject to the general rules which apply to others, may have sufficient motives for declining to pro

zen, there exists no difference with respect to the right to obtain it. The guard furnished to this high officer to protect him from being harassed by vexatious and unnecessary subpoenas is to be looked for in the conduct of the court after those subpoenas 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 have 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 subpoena duces tecum, then, may issue to any person to whom an 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." (Burr's Trial (Robertson), I, 182.)

And in the second opinion granting the motion of Burr to continue the trial for misdemeanor unless the District Attorney (in whose possession was the original letter of November 12) would produce that letter entire, the Chief Justice said: "That the President of the United States may be subpoenaed and examined as a witness, and required to produce any paper in his possession, is not controverted." (Id., II, 535.) "In this case, however, the President has assigned no reason whatever for withholding the paper called for. The propriety of withholding it must be decided by the President himself, not by another for him," e. g., Mr. Hay. (Id., II, 536.) "Perhaps the court ought to consider the reasons which would induce the President to refuse to exhibit such a letter as conclusive on it, unless such letter could be shown to be absolutely necessary in the defense." "In no case of this kind would a court be required to proceed against the President as against an ordinary individual. Had the President when he transmitted it (to Mr. Hay) stated that

duce a particular paper, and those motives may be such as to restrain the court from enforcing its production."1 "The guard furnished to this high officer to protect him from being harassed by vexatious and unnecessary sub

in his judgment the public interest required certain parts of it to be kept secret and had accordingly made a reservation of them, all proper respect would have been paid to it; but the President has made no such reservation. The only ground laid for the court to act upon is the affidavit of the accused; and from that the court is induced to order that the paper (original letter of November 12 in Mr. Hay's possession) be produced, or the cause be continued." (Id., II, 536, 537.)

Mr. Hay, on this ruling being made, said "he would produce the letter under the restrictions of the court (that there should be no publicity or use made of the parts of it which Mr. Hay desired to reserve, 'but what was necessarily attached to the case'); preferring that to a continuance of the cause." (Id. 537.)

Mr. Jefferson took higher grounds than the counsel of the Government and denied the power of the court under any circumstances to issue a subpoena of any kind to compel his personal attendance at the trial, since to comply with its commands "would leave the Nation without an Executive branch, the sole branch which the Constitution requires to be always in function; and the Constitution could not therefore intend that the Executive should be withdrawn from its station by any co-ordinate authority." (Letter to Hay, June 17, 1807; Text, Burr's Trial, I, 254, 255; Jefferson's Works (published by Congress), V, 96; Same point, letter to Hay, June 20, 1807, Id. 103.)

The President also insisted that he had the sole right to determine independently of any other authority what papers coming to him as President ought not to be made public, and that his determination was conclusive upon the courts even in the case of judicial trial for a capital offense. On this point he said, "he (the President), of course, from the nature of the case, must be the sole judge of which of them the public interest will permit publication." (Burr's Trial, I, 210 (letter to Hay, June 12, 1807); Id. 255 (letter to Hay, June 17, 1807); Works of Jefferson (published by Congress), Vol. V, 94, 96.) 1 Burr's Trial (Robertson), II, 535.

pœnas is to be looked for in the conduct of the court after those subpoenas have issued; not in any circumstance which is to precede their being issued.

The court can perceive no objection to a subpoena duces tecum to any person whatever, provided the case be such as to justify the process."1

That is to say, the right of the defendant to the process of the court, and the power of the court to award it, is one thing; what the court will do or can do if the requirements of the writ be not complied with is quite another thing, and one to be dealt with when return to the writ shall be made. I may further observe that the law has provided no method of voluntary communication by the court with the Executive. It cannot open a correspondence or negotiate terms. It does not write letters. It issues writs, makes orders and renders judgments; and, in the absence of legislation, it can act in no other way. It is no answer, as it seems to me, to the power to issue the writ that if it is disobeyed the court has no power to enforce obedience. It has the right to presume that its writ will be obeyed, or if not obeyed that the reasons therefor will be shown in due course to the court.

Inasmuch as in Marbury against Madison it was decided that ours is a government of laws and not of men, and that every department thereof is subject to the supremacy of the Constitution, and inasmuch as the Con

'Burr's Trial, I, 182.

stitution expressly gives to the accused "in all criminal prosecutions the right to compulsory process for obtaining witnesses in his favor," no exception of the President being made either in the Constitution or the act of Congress in that behalf, Marshall's conclusion that the court has the power, and on proper showing that it is its duty, to issue such a writ seems to be sound.

2. Respecting the power and duty of the court upon the return of the writ, no certain rules, in the absence of legislation, can be laid down.

In the two opinions on this subject given by the Chief Justice on the Burr trials he reserved all such questions until the return of the process. He said: "In no case of this kind would the court be required to proceed against the President as against an ordinary individual." "I cannot precisely lay down any general rule for such a case." And he added: "Perhaps the court ought to consider the reasons which would induce the President to refuse to exhibit such a letter as conclusive on it, unless such letter could be shown to be absolutely necessary in the defense. Had the President, when he transmitted the letter [of November 12, 1806, to the District Attorney, Hay], subjected it to certain restrictions, and stated that in his judgment the public interest required certain parts of it to be kept secret, and had accordingly made a reservation of them, all

d

proper respect would have been paid to it; but he has made no such reservation. This must be decided by himself, not by another for him." 1

Jefferson distinctly authorized the court to be informed that his view was that the President's judgment as to what the public interest required was conclusive, and not subject to judicial revision. The foregoing extracts from Marshall's opinion tend to show that the court would not necessarily accept the President's judgment as conclusive if the paper withheld was "absolutely necessary in the defense." But no decision of the point as to the conclusiveness of the President's judgment was required. Upon the application of the District Attorney, and before Marshall's decision awarding the first subpoena was made, the President voluntarily caused the letter and documents to be sent to the District Attorney, and they were in the possession of that officer in Richmond, the place of the trial. The course of the President as shown in the somewhat voluminous correspondence with Mr. Hay is open to no fair criticism, and was dictated by his sense of official duty under the Constitution "to protect the Executive from judiciary usurpation," and not by any purpose or desire to deprive Burr of any proper testimony. Nor, after careful examination, can I perceive any ground whatever for a statement or suggestion that Marshall's course was influenced in the slightest de

1 Burr's Trial, II, 536, 537.

.