cerning Burr, he said the request seemed "to cover a correspondence of many months with such a variety of officers, civil and military, all over the United States, as would amount to laying open the whole Executive books." He continued:

"I have desired the Secretary of War' to examine his official communications; and on a view of these, we may be able to judge what can and ought to be done, towards a compliance with the request. If the defendant alleges that there was any particular order, which, as a cause, produced any particular act on his part, then he must know what this order was, can specify it, and a prompt answer can be given. If the object had been specified, we might then have some guide for our conjectures, as to what part of the Executive records might be useful to him; but, with a perfect willingness to do what is right, we are without the indications which may enable us to do it. If the researches of the Secretary at War should produce anything proper for communication, and pertinent to any point we can conceive in the defence before the court, it shall be forwarded to you."

He again wrote to Hay, before receiving the Chief-Justice's decision in regard to the subpoena duces tecum, forwarding the promised papers from the War department; and he made this further offer for the benefit of the prisoner:

"To these communications of papers, I will add, that if the defendant supposes there are any facts within the knowledge of the heads of departments, or of myself, which can be useful for his defence, from a desire of doing anything our situation will permit in furtherance of justice, we shall be ready to give him the benefit of it, by way of deposition, through any persons whom the court shall authorize to take our testimony at this place. I know, indeed, that this cannot be done but by consent of parties; and I therefore authorize you to give consent on the part of the United States. Mr. Burr's consent will be given of course, if he supposes the testimony useful."

He thus explained his objections to a personal attendance, and his views in regard to the legal custody of Executive papers:

"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 their summons in this case; as they would, should we receive a similar one, to attend the trials of Blennerhasset and others, in the Mississippi territory, those instituted at 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 mean that it should be withdrawn from its station by any coördinate authority.

1 The remark was confined to the Secretary of War, because Hay had informed the President that he (Hay) already had in his possession the order of the Navy department desired by the defence.

CHAP. V.] HIS VIEW OF THE SUBPOENA TO HIMSELF.

211

"With respect to papers, there is certainly a public and a private side to our offices. To the former belong grants of land, patents for inventions, certain commissions, proclamations, and other papers patent in their nature. To the other belong mere executive proceedings. All nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication. Hence, under our Constitution, in requests of papers, from the legislative to the executive branch, an exception is carefully expressed, as to those which he may deem the public welfare may require not to be disclosed; as you will see in the inclosed resolution of the House of Representatives, which produced the message of January 22d, respecting this case. The respect mutually due between constituted authorities in their official intercourse, as well as sincere dispositions to do for every one what is just, will always ensure from the Executive, in exercising the duty of discrimination confided to him, the same candor and integrity to which the nation has in like manner trusted in the disposal of its judiciary authorities. Considering you as the organ for communicating these sentiments to the court, I address them to you for that purpose, and salute you with esteem and respect."

Two days after making these respectful propositions to the court, he saw Judge Marshall's opinion, and the next day (20th) thus wrote to Hay:

"I did not see till last night the opinion of the judge on the supœna duces tecum against the President. Considering the question there as coram non judice, I did not read his argument with much attention. Yet I saw readily enough, that, as is usual where an opinion is to be supported, right or wrong, he dwells much on smaller objections, and passes over those which are solid. Laying down the position generally, that all persons owe obedience to subpoenas, he admits no exception unless it can be produced in his law books. But if the Constitution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law, subjecting him to minor duties inconsistent with these? The Constitution enjoins his constant agency in the concerns of six millions 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 quell a riot somewhere in his county. The federal judge is, by the general law, a part of the posse of the State sheriff. Would the judge abandon major duties to perform lesser ones? Again; the court of Orleans or Maine commands, by subpoenas, the attendance of all the judges of the Supreme Court. Would they abandon their posts as judges, and the interests of millions committed to them, to serve the purposes of a single individual? (The leading principle of our Constitution is the independence of the legislature, executive and judiciary, of each other and none are more jealous of this than the judiciary. (But would the executive be independent of the judiciary, if he were subject to the commands of the latter, and to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his Constitutional duties? 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."

The intimation in the last sentence admits of but one interpretation that the President would, if necessary, protect the constitutional inviolability of his office by force.

As a striking commentary on the practical consequences of the Chief-Justice's position if carried out, just two days after the last quoted letter of the President was written, a great and warlike outrage was inflicted on our national flag. A public vessel (the Chesapeake) was attacked, reduced to submission, and part of her crew forcibly carried off. The insolent victor took soundings before an American city, and threatened an attack on it if certain demands were not complied with. The nation simultaneously shouted to arms. That was the moment when a subpana to bring certain papers to any court, however distant, might have deprived the nation of its Chief Magistrate for one, two, or three months, according to distance and other circumstances! An invader's foot might have pressed our soil, while the Commander-in-Chief was practically deposed by a subpana!

The defendant took no immediate steps to raise the question whether the court would attempt to enforce its process-reserving it probably, if his other chances of escape failed, to be made the occasion of a motion which will presently appear.

Of the manner of treating the Government witnesses, the following is a sample, from the lips of Randolph, usually one of the most moderate of Burr's counsel.

"Of James Wilkinson we are not afraid, in whatever shape he may be produced, in whatever form he may appear before this court. We are only afraid of those effects which desperation may produce in his mind. Desperation, may it please the court, is a word of great fitness in the present case. General Wilkinson we behold first acting as a conspirator to insnare others, afterwards as a patriot to betray others from motives of patriotism. What must be the embarrassment of this man when the awful catastrophe arrives, that he must either substantiate his own innocence by the conviction of another, or be himself regarded as a traitor and conspirator in the event of the acquittal of the accused."

On the 24th of June, the grand-jury came into court, and through their foreman, John Randolph, presented bills of indictment for treason and misdemeanor against Burr and Blennerhasset. Hay moved Burr's commitment, and it was ordered.

CHAP. V.]

MANNER OF CONFINING PRISONER.

213

He was placed in the city jail. Two days afterwards, three of his counsel made affidavit that they "could not avoid remarking the danger which would most probably result to his health from the situation, inconveniences and circumstances attending the place of his confinement," that they could not "freely and fully perform what they had undertaken for his defence if he remained in the jail aforesaid, deprived as he was of a room to himself." The court thereupon ordered " the front room of the house, now occupied by Luther Martin, Esq.," to be "prepared for the reception and safe keeping of Colonel Aaron Burr," by suitable shutters and door fastenings, and by the employment of a guard of seven men, to be placed at the door and "on the floor of the adjoining unfinished house, and on the same story."

The prisoner being arraigned, plead not guilty, and the court made an order that the marshal summon forty-eight jurors to appear on the 3d day of August following, as a venire for the trial.

Hay presented a resolution of the Virginia Council of State, tendering "apartments" in the third story of the penitentiary, "for the use of such persons as should be directed, under the authority of the United States, to be confined therein;" and he moved Burr's commitment there. The prisoner's counsel objected to this; but after a letter was received from Governor Cabell, tendering a selection of the unoccupied rooms of the penitentiary, and stipulating that the prisoner should be under the sole control of the marshal, with authority on the part of that officer to admit any persons he might think proper, to visit "the confined," the court ordered the commitment until the second day of August, when Burr was to be brought back to Martin's house, and to be guarded as before.

Burr wrote his daughter, Mrs. Alston, July 3d:

"I have three rooms in the third story of the penitentiary, making an extent of one hundred feet. My jailer is quite a polite and civil man-altogether unlike the idea one would form of a jailer. You would have laughed to have heard our compliments the first evening."

"While I have been writing, different servants have arrived with messages, notes and inquiries, bringing oranges, lemons, pineapples, raspberries, apricots, cream, butter, ice, and some ordinary articles."

"July 6, 1807.

"My friends and acquaintances of both sexes are permitted to visit me without

interruption, without inquiring their business, and without the presence of a spy. It is well I have an ante-chamber, or I should often be gêné with visitors.

"If you come, I can give you a bedroom and parlor on this floor. The bedroom has three large closets, and is a much more commodious one than you ever had in your life."

The trial opened at the appointed time. After the President's letter to Hay of June 20th, already quoted, he again wrote him, June 23d, in regard to the papers wanted by the defence, promising that no pains should be spared to furnish them. His next letter (August 20th) was in answer to Hay, and the only noticeable passages in it are the following:

"Before an impartial jury, Burr's conduct would convict himself, were not one word of testimony to be offered against him. But to what a state will our law be reduced by party feelings in those who administer it? Why do not Blennerhassett, Dayton, etc., demand private and comfortable lodgings? In a country where an equal application of law to every condition of man is fundamental, how could it be denied to them? How can it ever be denied to the most degraded malefactor?"

This was the last letter written by the President to the counsel or to any one connected with the prosecution, during the trial for treason.

Burr's declarations and overtures to Eaton, and other similar ones, some going as far and others not, were proved. It was distinctly proved, by witnesses of the highest respectability, that Burr said or gave it to be understood that he contemplated a division of the Union. Blennerhassett and other agents had avowed this as one of the objects they had in view. Boats and military stores had been provided. Armed men had assembled avowedly as members of a common and concerted expedition. No other head of the expedition had been talked about but Burr. He came and openly assumed its general direction. But he was not personally present at Blennerhassett's Island, at the time the overt act was laid in the indictment. It was thus laid, because then, if at all, had an overt act taken place within the judicial district of Virginia.

The prisoner's counsel finally moved to stop the introduction of evidence in the trial for treason, on the ground-1st, that conformably to the Constitution, no man could be convicted of treason who was not present when the war was levied; 2d, that if this construction was erroneous, no testimony could be received to charge one man with the overt acts of others, until