Monroe was absent during his two terms seven hundred and eight days and during that time attended to official duties wherever he happened to be, whether on his farm, or at his summer home on the Chesapeake, or while traveling.

President John Quincy Adams was absent during his term of four years two hundred and twenty-two days and performed much important official business during that time.

President Jackson during his service of eight years was absent five hundred and two days and during his absence signed and issued many public papers, commissions, pardons and proclamations.

President Van Buren was absent from the Capitol during his term one hundred and thirty-one days and performed many official acts during his absence, among them the signing of a commission for a United States Judge.

President Tyler was absent during his Presidential term one hundred and sixty-three days and during such time signed many public papers and documents of great importance.

President Polk was absent during his term thirty-seven days, but appears to have signed only two official papers during that time.

President Taylor during his term was absent thirty-one days and during that time signed two commissions and other important papers. President Fillmore was absent sixty days and during his absence he signed many pardons, commissions, etc.

President Buchanan was absent during his term fifty-seven days and signed important papers during that time. Messages of the Presidents, vol. 7, 361, 364.

CHAPTER XXXIX.

THE EXECUTIVE CONTINUED.

Is the President subject to legal process?-A question of much importance grows out of the relations of the executive to the government. How far, if at all, is the President subject to the process of the Courts in civil or criminal actions. Upon this question there has been great diversity of opinion among lawyers and constitutional writers for more than a century.

The chief authority in favor of the view that the President is subject to the process of a court is the decision of Chief Justice Marshall, upon application for a subpoena duces tecum directed to President Jefferson in the trial of Aaron Burr. In that case the Chief Justice issued an order for a subpoena duces tecum against President Jefferson requiring him to appear and produce at the trial certain papers, which, it was believed, were in his possession. Chief Justice Marshall said upon that trial:

"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. The President, although subject to the general rules which apply to others, may have sufficient motives for declining to produce a particular paper, and those motives may be such as to restrain the court from enforcing its production. 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 these subpoenas have been issued, not in any circumstances 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. The Chief

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1 Burr's Trial, Vol. 1, 182. Marshall's action in this regard has been the subject of various opinions among distinguished members of the American bench

Justice also said: "In no case of this kind would a court be required to proceed against the President as an orand bar. It was reviewed and commented upon in several of the addresses delivered throughout the United States on the occasion of Marshall Day in 1901, the hundredth anniversary of his installation as Chief Justice of the United States. Some of these views sustain Marshall, while others think his decision erroneous.

Professor Thayer in his address on that occasion said: "It was a strange conception of the relations of the different departments of the government to each other to imagine that an order with a penalty was a legitimate judicial mode of addressing the Chief Justice."-Dillon's Marshall, vol. 1, 233.

Mr. Charles E. Perkins: "It was a difficult position, for as the court was a United States court, only the authorities of the United States could be called upon to enforce its order and they were completely in Jefferson's hands, but Marshall was equal to the occasion. He declared it to be his duty to issue the subpoena without regard to consequences, and so firm was he that Jefferson at last yielded and sent the letter to the Attorney General to be produced if necessary."-Dillon's Marshall, vol. 1, 327.

Mr. David J. Pancoast: "The propriety and legality of the Chief Justice's ruling on this point has not been universally accepted."-Dillon's Marshall, vol. 1, 434.

Senator Henry Cabot Lodge: "That Marshall's ruling as to treason was correct, and that he laid down the American law and definition of treason in a manner which subsequent generations have accepted can not be questioned. But this can not be said of the famous rule by which he granted the motion to issue a subpoena duces tecum directed to the President of the United States. If his desire was to fill Jefferson with impotent anger and with a sense of affront and humiliation, he succeeded amply. In any other view the granting of the motion was a failure and a mistake, for instead of exhibiting the power of the court it showed its limitation. The Chief Executive of the Nation clearly can not be brought to court against his will, for higher duties are imposed upon him, and still more decisive is the practical consideration that the court is physically powerless to enforce its decrees against the Chief Magistrate, by whom alone, in the last resort, the decrees of the court can be carried into execution."-Dillon's Marshall, vol. 2, 328.

Mr. U. M. Rose: "I have lately seen an address by a distinguished speaker laudatory of Marshall, treating his decision, however, as clearly erroneous. In this conclusion I am unable to agree. The court only awarded the writ for production of the paper and did not decide that it would require the personal attendance of the President. The letter did not purport to be a public document. The way was left open for any objections or reservations that the President might make. No one in this country is above the law; and it is an alarming doctrine that if a private paper happens to get into the custody of the President the person accused of crime may be hanged because it is inaccessible to him and the courts."-Dillon's Marshall, vol. 3, 133.

dinary individual. The objections to such a course are so strong and so obvious that all must acknowledge them.2

Judge Dillon reached the conclusion that: "The President, by virtue of his office, is in criminal cases, totally exempt from judicial process requiring his attendance as a witness. In the absence of controlling legislation, a court in such cases has the power, agreeably to the rules and usages of law, to issue to him a subpoena generally to appear as a witness, or a subpoena duces tecum to produce a material and relevant document in his possession.''

Jefferson took a wholly different view of the case from Marshall as may be seen from the following letter:

"Washington, June 20, 1807. "Dear Sir: I did not see till last night the opinion of the Judge on the subpoena 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 this 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, 2 Burr's Trial, vol. 2, 536.

3 Dillon's Life and Character of Marshall, Vol. 1, 37, Introduction.

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 1000 or 1500 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. Our stations being known, all communications come to them regularly, as to fixed points. It would be very different were we always on the road or placed in the noisy and crowded taverns where courts are held."

That Jefferson felt deeply grieved at the course which Marshall had taken in ordering a subpoena duces tecum