to be served upon him and that he intended, if necessary, to resist being served with such a paper is conclusively shown by the following letter:

"I learn by the newspapers that I am to have another subpoena duces tecum for Eaton's declaration. With respect to my personal attendance higher duties keep me here. During the present and ensuing months I am here to avoid the diseases of tidewater situations and all communications on the business of my office, by arrangements which have been taken, will be daily received and transacted here. With respect to the paper in question it was delivered to the Attorney-General with all the other papers relating to Burr. I have therefore neither that nor any of the others in my possession. Possibly the Attorney-General may have delivered it to you. If not, he has it, and he is the person to whom a subpoena to bring that or any others into court may be at once addressed.

"That Burr and his counsel should wish to convert his trial into a contest between the judiciary and Exve. authorities was to be expected. But that the Chief 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 departments, I must desire you to give me instant notice, and 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 Constitution are sufficient to protect the other branches from judiciary usurpation of pre-eminence, and every individual also from judiciary vengeance, and the marshal may be assured of its 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. func

tionaries in proper case, without breaking up the government. Will not the associate judge assume to divide his court and procure a truce at least in so critical a conjuncture?''

When President Jefferson received the subpoena he paid no attention to it. Attorney-General Stanbery in his argument in Mississippi v. Johnson," said: "He did not even make any return to the court, nor any excuse to the court. He simply wrote a letter to the district attorney, in which he stated that he could not conceive how it was that, under such circumstances, the court should order him to go there by subpoena; that he would not go; that he did not propose to go; but he said to the district attorney that there was no difficulty in obtaining the paper in the proper way. But he would pay no respect to the subpoena. Thereupon Colonel Burr himself moved for compulsory process to compel the President to come. Of course that was legitimate. If the court, in saying that the President was amenable to subpoena, was right, the court was bound, at the instance of the defendant, to follow it up by process of attachment to compel obedience to its lawful order. At that point, however, the court hesitated, and not a step further was taken toward enforcing the doctrine laid down by the Chief Justice. It then became quite apparent that a very great error had been committed. I say a very great error, with the greatest submission to the great Chief Justice, who on circuit at nisi prius, suddenly on a motion of this kind, had held that the President of the United States was liable to the subpoena of any court as President.”

Consequences of the gravest import might have resulted had Marshall sustained Burr's motion for compulsory

4 Ford's Jefferson, Vol. 9, 59, 60, 61, 62.

54 Wallace 483.

6 Judge Dillon says: "Mr. Stanbery is mistaken in his statement that the counsel for the United States did not admit that such pro cess could be issued against the President. He is also mistaken in saying that Colonel Burr himself moved for compulsory process to compel the President to 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."-Dillon's Marshall, Vol. 1, 50, Introduction, Note.

process against Jefferson, for the President was determined, as we have already seen, that he would not submit to such process, and he would certainly have defended himself with force against the marshal, and a tragical chapter in American history might have been enacted.

The question was considered by the circuit court of the District of Columbia and the following opinion delivered by Mr. Justice Cranch: "Suppose the laws require a specific act of the President himself, involving private rights, which he refuses to perform. The courts have as much law for issuing a mandamus against him as against any of his subordinates in a like case. It is a 'case' as much as that of which the court has already assumed jurisdiction. The President disobeys their mandamus and they send a judgment. By whom do they send it? By a marshal holding his office at the will of the President, who can strike their processes dead in his hands, by dismissing him on the spot. This fact proves the absurdity of the power assumed and that which the President can legally do to protect himself he can do to protect any of his agents, being always responsible to his country for the proper exercise of his power.

"But suppose the court succeeded in arresting the President, and put him in the county jail. Where then is the supreme executive power of this great Republic? Transferred from the President's house to the city hall; from the Chief Magistrate, elected by the people of the whole United States, to three judges for the District of Columbia.

"The arrest and imprisonment of any executive officer, as such, involves the same principles and would lead to the same consequences in a greater or less degree, according to the importance of the station held by him. It is still an attempt to control the executive power; not by confining its head, but by tying up its hands; or rather by forcing the hands to work, not according to the will of their constitutional head, but in obedience to the will of another department of the government.

"It is said that if the Court had not this power, 'an individual who may have been ruined by the refusal of an officer to perform a ministerial act, positively enjoined

upon him by law, will be entirely without redress.' If it were even so, would it justify the court in assuming executive authority in violation of the Constitution? It would but prove a defect in our institutions, which it would be incumbent on the people to repair. But it is not so. The idea that courts are the only places where wrongs of all sorts are to be redressed, and judges the only dispensers of right is an error. Where the inferior executive officer, or even the President himself, refuses to perform his executive duties, there is an obvious mode of redress, without the interposition of the judicial authority. If a subordinate executive officer 'refuse to perform a ministerial act positively enjoined upon him by law,' the injured citizen may appeal to the President, whose duty it is to 'take care that the laws be faithfully executed,' and who has power to turn out a perverse subordinate. If the case be so very plain, the President will at once enforce the execution of the law and the citizen will have effectual redress, though 'this Court has not jurisdiction.' If the case be not so very plain, the matter may be referred back to Congress, to make it plain by further legislation; and thus the citizen would have complete redress, without the aid of the court. There is a process by which the President himself may be reached, for a perverse refusal to execute the laws or take care that they be executed, and a Chief Magistrate who will do his duty put in his place.""

"The Executive power," said Justice Thompson, "is vested in the President; and as far as his powers are derived from the Constitution, he is beyond the reach of any other department, except in the mode prescribed by the Constitution through the impeaching power."'s

In rendering his decision in the Burr case Chief Justice Marshall compared the relations of the King of England and the President of the United States, and used this language:

"By the Constitution of Great Britain the crown is hereditary and the monarch can never be a subject.

"By that of the United States, the President is elected from the mass of the people and on the expiration of the

7 United States v. Kendall, 5 Cranch C. C., 197, 198.

8 Kendall v. United States, 12 Peters, 524, 610.

time for which he is elected returns to the mass of people again. How essentially this difference of circumstances must vary the policy of the laws of the two countries in reference to the personal dignity of the executive chief will be perceived by every person. In this respect the first magistrate of the Union may more properly be likened to the first magistrate of the State, at any rate under the form of confederation, and it is not known ever to have been doubted but that the chief magistrate of the State might be served with a subpoena ad testificandum. If in any court of the United States it has ever been decided that a subpoena can not issue to the President that decision is unknown to this court.""

In Mississippi v. Johnson,10 it was sought to enjoin the President not to carry into execution an act of Congress which it was claimed was unconstitutional. Chief Justice Chase in delivering the opinion said (page 501): "We are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us, whether the occupant of the presidential office be described as President or a citizen of a State. Suppose the bill (page 500) filed and the injunction prayed for allowed. If the President refuses obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this Court interfere, in behalf of the President, thus endangered by compliance with this mandate and restrained by injunction in the Senate of the United States from sitting in a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court? These questions answer themselves."

Judge Story dismisses this important subject with a few lines of consideration: "The President can not be liable Burr's Trial, Combs, 45.

10 4 Wallace, 475.