stice.

On the 22d of May the United States Court for the Fifth Circuit and the
Virginia District formally convened, with Marshall presiding and Judge
Grin at his side. On the same day the grand jury was sworn, with John
Randolph as foreman, and presently began taking testimony. Unluckily for
the prosecution, the proceedings now awaited the arrival of Wilkinson
and the delay was turned to skillful use by the defense to embroil
further the relations between the Chief Justice and the President. With
this end in view, Burr moved on the 9th of June that a subpoena duces
tecum issue to Jefferson requiring him to produce certain papers,
including the famous cipher letter to Wilkinson. The main question
involved, of course, was that of the right of the Court under any
circumstances to issue a subpoena to the President, but the abstract
issue soon became involved with a much more irritating personal one.
"This," said Luther Martin, who now found himself in his element, "this
is a peculiar case, sir. The President has undertaken to prejudge
my client by declaring that 'of his guilt there is no doubt.' He has
assumed to himself the knowledge of the Supreme Being himself and
pretended to search the heart of my highly respected friend. He has
proclaimed him a traitor in the face of the country which has rewarded
him. He has let slip the dogs of war, the hellhounds of persecution, to
hunt down my friend. And would this President of the United States, who
has raised all this absurd clamor, pretend to keep back the papers which
are wanted for this trial, where life itself is at stake?"

Wirt's answer to Martin was also a rebuke to the Court. "Do they [the
defense] flatter themselves," he asked, "that this court feel political
prejudices which will supply the place of argument and innocence on the
part of the prisoner? Their conduct amounts to an insinuation of the
sort. But I do not believe it.... Sir, no man, foreigner or citizen, who
hears this language addressed to the court, and received with all the
complacency at least which silence can imply, can make any inference
from it very honorable to the court." These words touched Marshall's
conscience, as well they might. At the close of the day he asked
counsel henceforth to "confine themselves to the point really before the
court"--a request which, however, was by no means invariably observed
through the following days.

A day or two later Marshall ruled that the subpoena should is