ing devolved on me the exercise of that discretion which constitutionally belongs to himself." It was on the sufficiency of this return that Marshall's second opinion was given; it was apparently rendered on September 4, but at all events it was before the next meeting of the court, on September 9.2 It was in this opinion that the Chief Justice decided that the President could not delegate his discretion to Mr. Hay; that it was the duty of Mr. Hay to produce for inspection the entire original letter admitted to be in his possession, and that unless he did so the defendant's motion to continue the cause would be granted. Robertson's short-hand report shows nothing further in respect to the letter except that Mr. Hay stated to the court that he preferred to produce it rather than submit to a continuance.3

Mr. Jefferson's published correspondence contains the two letters above mentioned to Mr. Hay, both dated September 7, and written from Monticello. From these letters it appears that Mr. Hay had enclosed to the President on September 5 a subpoena duces tecum, and also the original letter of General Wilkinson of November 12. In one of the letters of September 7, the President said to Mr. Hay: "I received late last night your favor of the day before, and now re-enclose you the subpoena. As I do not

1 Burr's Trial (Robertson), II, 505, 513; ante, p. xxxv, note.

2 Burr's Trial, II, 504, 533, 537.

3 Id., II, 537.

of

believe that the District [Circuit] Courts have a power commanding the Executive Government to abandon superior duties and attend on them at whatever distance, I am unwilling, by any notice of the subpoena, to set a precedent which might sanction a proceeding so preposterous. I enclose you, therefore, a letter, public and for the court, covering substantially all they ought to desire. I return you the original letter of November 12." In the letter intended for the court the President says: "I send you a copy of General Wilkinson's letter of November 12, 1806, omitting only certain passages, which are entirely confidential, given for my information in the discharge of my executive functions, and which my duties and the public interest forbid me to make public; which passages so omitted are in no wise material for the purposes of justice on either of the charges against Aaron Burr, but are on subjects irrelevant to any issues which can arise out of those charges." 1

It is thus seen that the President was ready, if need be, to make or meet the issue with the court as to the conclusiveness of the Executive's action refusing to disclose certain parts of General Wilkinson's letter; but the

1 Jefferson's Works (published by Congress), V, 190, 191. All of the President's correspondence with District Attorney Hay, excepting a letter of September 4, concerning the Burr trials is collected and conveniently arranged in chronological order by Mr. Ford. Jefferson's Writings (Ford), IX, 62 et seq.

course of the trial chanced to be such as not to require of the court a decision of the point, and the threatened conflict was avoided. Such a conflict, however,

1 That the President was prepared to resist, by force if necessary, the execution of the process of the court, appears not only in his letter to Mr. Hay of date of June 20, 1807 (Jefferson's Works (by Con. gress), V, on p. 104), but also by the following draft of a letter to Mr. Hay (Writings of Jefferson (Ford), IX, 62), which Mr. Ford says may never have been sent, but which he publishes just after the letter from Jefferson to Hay of August 7, 1807. It will be observed that Mr. Jefferson claims the same immunity for the “heads of departments" that he claims for the "Executive." "The inclosed letter," says Jefferson to Hay," is written in a spirit of conciliation, and with the desire to avoid conflicts of authority between the high branches of the govmt which would discredit it equally at home & abroad. That Burr & his counsel should wish to (struck out "divert the public attention from him to this battle of giants was to be") convert his trial into a contest between the judiciary & Exve Authorities was to be expected. But that the Ch. Justice should lend himself to it, and take the first step to bring it on, was not expected. Nor can it be now believed that his prudence or good sense will permit him to press it. But should he, contrary to expectation, proceed to issue any process which should involve any act of force to be committed on the persons of the Exve or heads of depmts, I must desire you to give me instant notice, & by express if you find that can be quicker done than by post; and that moreover you will advise the marshal on his conduct, as he will be critically placed between us. His safest way will be to take no part in the exercise of any act of force ordered in this case. The powers given to the Exve by the constn are sufficient to protect the other branches from Judiciary usurpation of preeminence, & every individual also from judiciary vengeance, and the marshal may be assured of it's effective exercise to cover him. I hope however that the discretion of the C. J. will suffer this question to lie over for the present, and at the ensuing session of the legislature he may have means provided for giving to individuals the benefit of the testimony of the Exve functionaries in proper cases, without breaking up the government. Will not the associate judge assume

may at any time occur; but quite aside from such a contingency, the principles which necessarily underlie the determination of the inquiry whether or how far the President is amenable to the power of the court belong to the arcana of the Constitution, are deeply interesting in their nature, and involve questions similar to those which were discussed or determined in the great case of Marbury against Madison,- questions whose roots strike deep down into the foundations of the national structure.'

Whether a distinct and positive return by the President to the writ that his public duties require him to remain at the seat of government, or at his residence for

to divide his court and procure a truce at least in so critical a juncture."

In support of the view that the President is or may be exempt from the process of subpoena by reason of the constitutional nature of his duties, reference may be made to the opinion of Attorney. General Henry Stanbery, in the Opinions of the Attorneys-General, vol. 12, p. 35, and also to his argument in the case of the State of Mississippi v. Johnson, 4 Wallace, 475 (1866), at page 482 et seq. Mr. Stanbery is mistaken in his statement that the counsel for the United States did not admit that such process could be issued against the President. He is also mistaken in saying that Col. Burr himself moved for compulsory process to compel the President tc come. He is also mistaken in stating that the court hesitated to follow up the subpoena by process of attachment, and that not a step further was taken towards enforcing the doctrines laid down by the Chief Justice. Nevertheless the argument that the President under the Constitution and laws of the United States has a peculiar immunity from the jurisdiction and process of the courts is stated by this able lawyer with great force; but it has failed to convince the Editor that his conclusions as given in the text are erroneous. See In re Neagle, 135 U. S. 1 (1889), relating to the assault upon Mr. Justice Field, and The State v. Delesdenier, 7 Texas, 95.

the time being, or a return that he refuses to produce a given document because the public interest forbids its publication,-whether such a return is conclusive upon the court was, as I have said, not decided by the Chief Justice on the Burr trials; but if I may venture an opinion on the point it is that such action on the part of the President solemnly taken is not subject to judicial revis1on, and obviously it is not capable of judicial enforcement against the Executive. If the President under the Constitution is the sole judge of what the public interest requires of him, his judgment ought to be received by the court without question or criticism. At all events the utmost the court could properly do would be to express its opinion as to the legal rights of the defendant, cause it to be recorded and officially certified to the President, who would thus be compelled to assume the public responsibility for his action. Any other course would involve two co-ordinate branches of the government, each in its sphere equal and independent, in an unseemly conflict, and a fruitless conflict so far as the court is concerned, because of its inability to give effect to its decision against the Executive.1

1 Chief Justice Taney in 1861 dealt with a somewhat similar situation in Merryman's case. Here Gen. Cadwalader, commanding at Fort McHenry, where the petitioner, Merryman, was held under military arrest, having refused to obey the writ of habeas corpus issued by the Chief Justice, May 26, 1861, an attachment for contempt was issued against the commandant at the Fort, which the marshal