sue,
holding that neither the personal nor the official character of the
President exempted him from the operation of that constitutional clause
which guarantees accused persons "compulsory process for obtaining
witnesses" in their behalf. The demand made upon the President, said the
Chief Justice, by his official duties is not an unremitting one, and,
"if it should exist at the time when his attendance on a court is
required, it would be sworn on the return of the subpoena and would
rather constitute a reason for not obeying the process of the court than
a reason against its being issued." Jefferson, however, neither obeyed
the writ nor swore anything on its return, though he forwarded some of
the papers required to Hay, the district attorney, to be used as the
latter might deem best. The President's argument was grounded on the
mutual independence of the three departments of Government; and he asked
whether the independence of the Executive could long survive "if the
smaller 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 executive duties?" The President had the best of the encounter
on all scores. Not only had Marshall forgotten for the nonce the
doctrine he himself had stated in Marbury vs. Madison regarding the
constitutional discretion of the Executive, but what was worse still, he
had forgotten his own discretion on that occasion. He had fully earned
his rebuff, but that fact did not appreciably sweeten it.

On the 24th of June the grand jury reported two indictments against
Burr, one for treason and the other for misdemeanor. The former charged
that Burr, moved thereto "by the instigation of the devil," had on
the 10th of December previous levied war against the United States
at Blennerhassett's island, in the county of Wood, of the District of
Virginia, and had on the day following, at the same place, set in motion
a warlike array against the city of New Orleans. The latter charged that
a further purpose of this same warlike array was an invasion of Mexico.
Treason not being a bailable offense, Burr had now to go to jail, but,
as the city jail was alleged to be unhealthful, the Court allowed him to
be removed to quarters which had been proffered by the Governor of the
State in the penitentiary just outside the city. Burr's situation here,
writes his biographer, "was extremely agreeable. He had a suite of rooms
in t