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10
The Commoner.
VOLUME 10, NUMBER' lit.
!-y. rKr'!1-': -48"
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When a President Was Summoned
to Testify
Two vory rccont events In Ameri
can political history liavc sent tho
constitutional authorities and stu
donts to tho old books. Tho first
happened when both sonato and
houso wero debating tho propriety of
permitting members to answer a
summons issued by a judge sitting in
tho District of Columbia; tho other
whon It was suggested that President
Taft might bo Invited to tako the
wltnoss stand in tho Balllngor-Pin-chot
controversy. Some of tho de
baters insisted that such a caso had
novor arisen and. particularly in tho
latter, thero woro those who Insisted
that tho members of tho investigat
ing committeo who declared that the
committeo had a right to summon tho
prosidont could not show any prece
dent to warrant such a proceeding.
All of which paves tho way to tho
case in point.
Aaron Burr, lato Vice President of
tho United StatOB, was trlod in tho
United States circuit court hold at
Richmond, Va., at tho spring torm of
1807. Ho had been indicted for tho
crimo of high troason, in levying war
against tho country, and for a mis
demeanor in proparlng a military ex
pedition against Mexico, thou a ter
ritory of tho king of Spain, with
whom tho United States was at peace.
Tho ovont was most romarkablo of
any that had, up to that lime, marked
tho judicial annals of tho nation.
Burr had but recently boon a can
dldato for tho presidency and had
lacked biU one electoral vote of suc
cess. Thomas Jefferson had beaten
him, but Burr was made vice presi
dent and as president of tho senate
acquitted himself in such a manner
as to add to his reputation. While
yet vico president ho had killed
Alexander Hamilton in a duel and
thereafter was hatod by tho feder
alists, while the followers of Jeffer
son believed that he had been unfair
in his contest for tho presidency. At
a time when his fortune and influ
ence were waning ho conceived the
idea of invading Mexico and created
tho rendezvous at Blennerhassett's
Island. Then came his communica
tion to General Wilkinson and the
story of how he finally disclosed the
plot is history.
..Presiding over tho court was John
Marshall, chief justice of the supreme
court of tho United States, and be
fore him Colonel Burr moved that
a subpoena duces tecum issue, direct
ed to the United States marshal, com
manding him to summon Thomas
Jefferson, president of the United
States, to appear bofore the court
and bring with him, according to the
exigency of the precept, the papers
desirod and designated in the pris
oner's affidavit filed, especially the
letter of General Wilkinson to the
prosidont, dated the 21st of October,
180G, and addressed directly to him.
Counsel for the government vigor
ously opposed tho motion. It was
declared by them to be wholly un-
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AMK i
ADDRESS
necessary, without any precedent, in
consistent with the president's offi
cial position and duties, and that it
only tended, if it were not deliber
ately designed, to disparage and af
front him. The discussion before the
court lasted several days, and after
the arguments were completed the
chief justice delivered the opinion
sustaining the motion. The opinion
was long, but some extracts will
servo to indicate the reasoning on
which tho conclusion rested:
"It remains to inquire whether a
subpoena duces tecum can bo direct
ed to tho president of the United
States, and whether it ought to be
directed in this case.
"This question originally consist
ed of two parts. It was at first
doubted whether a subnoena could
issue in any caso to the chief magis
trate of tho nation; and if it could,
whether that subpoena could do more
than direct his personal attendance;
whether it could direct him to bring
with him a paper which was to con
stitute tho gist of his testimony.
While the argument was opening the
attorney for tho United States
avowed his opinion that a general
subpoena might issue to tho presi
dent, but not a subpoena duces
tecum. This terminated the argu
ment on that part of the question.
In the provisions of the con
stitution and of the statute which
gives to the accused a right to the
compulsory process of the court,
there Is no exception whatever.
"It is a principle of the English
constitution that the king can do
no wrong, that no blame can bo im
puted to him, that he can not be
named in debate. By the constitu
tion of the United States the presi
dent as well as every officer of the
government, maybe impeached and
may be removed from office for high
crimes and misdemeanors. By the
constitution of Great Britain the
crown is hereditary and the monarch
can never be a subject. By that of
tho United States the president is
elected from the mass of people, and,
on the expiration of the 'time for
which he is elected, returns to the
mass of the people again.
"If upon any principle the presi
dent could be construed to stand ex
empt from the general provisions of
the constitution, it would be because
his duties as chief magistrate de
mand 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 the court is required
it would be sworn on the return of
the subpoena, and would rather con
stitute a reason for not obeying the
process of the court than a reason
against its being issued. It can
not do denied that to issue a sub-
p0?a t(a Person fll"ng the exalted
station of chief magistrate is a duty
which would be dispensed with much
more cheerfully than it would be
performed. But if it be a duty the
court can have no choice in the case.
. . Th cort can perceive no
legal objection to issuing a subpoena
duces tecum to any person whomso
ever provided the caso be such as to
Justify the process. "
At the time the ruling of the chief
justice was bitterly arraigned and
since then several mn,iQ i. "
have dissented, the majority of these
tcwvius im, view or Jefferson, who
denounced the opinion as an offen
sive trespass on the executive depart
ment of the government. The Presi
dent was indignant and promptly and
emphatically denied the power of the
court to require his attendance as a
witness. He did not obey the sum
mons and the court admitted that
it had no authority to enforce his
presence This singular assertion of
? ?nght ? C0DJmad. wt backed by
a power to enforce, made the presi
dent more angry. He had stated that
ht,Tas riady t0 seQd any papers
which might bo pertinent, but he ?S
pudiated the notion that the court
could properly order him to take the
stand as a witness.
Concerning the matter Jefferson
wrote: "Laying down the position
generally that all persons owe obe
dience to subpoenas, he (Marshall)
admits no exception unless it can be
produced in his law books.
The constitution enjoins his (the
president's) constant agency in the
concerns of 6,000,000 of people. Is
the law paramount to this, which
calls on him on behalf of a single
one? Let us apply the judge's own
doctrine to the case of himself and
his brethren. The sheriff of Henrico
summons him from the bench to
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