6894. PRESIDENT, Subpœnas for.—[continued].
I did not see till last
night the opinion of the Judge [Marshall] on
the subpæna 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 subpœnas 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 subp œnas, 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. Again, because ministers can go
into a court in London as witnesses, without
interruption to their executive duties, it is inferred
that they would go to a court one thousand
or one thousand five hundred miles off,
and that ours are to be dragged from Maine to
Orleans by every criminal who will swear that
their testimony “may be of use to him”. The
Judge says, “it is apparent that the President's
duties as Chief Magistrate do not demand his
whole time, and are not unremitting”. If he alludes
to our annual retirement from the seat of
government, during the sickly season, he should
be told that such arrangements are made for
carrying on the public business, at and between
the several stations we take, that it goes on as
unremittingly there, as if we were at the seat
of government. I pass more hours in public
business at Monticello than I do here, every
day; and it is much more laborious, because all
must be done in writing.—
To George Hay. Washington ed. v, 103.
Ford ed., ix, 59.
(W.
June. 1807)
