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BURR'S CALLING OF JEFFERSON HAS ECHO IN MITCHELL'S TRIAL

[hand written note]

Request to Summon Three of Cabinet Officers Recalls Bitter Fight of Second President to Keep Out of Marshall's Court.

BY FEDERIC WILLIAM WILE.
   Col. William Mitchell's desire to subpoena three members of President Coolidge's cabinet as witnesses in his court-material revives Washington's interest in the celebrated attempt of Aaron Burr to subpoena President Thomas Jefferson in the Burr treason trial, which convulsed the country in 1807. John Marshall, Chief Justice of the United States, regardless of the fact that Jefferson was at the zenith of his popularity, issued the subpoena, but the President, seeking refuge in the contention that it was an unjustifiable encroachment upon the executive prerogative, ignored the summons. Before Jefferson took his stand there were circumstantial reports that Marshall was prepared to bring the President by force to Richmond, where Burr was on trial.
   Albert J. Beveridge, former United States Senator from Indiana, narrates the Burr-Marshall-Jefferson episode in minute detail in his "Life of John Marshall." From the outset of his troubles with the Government, Burr held that he was the object of persecution at Jefferson's hands. "The prosecution of his former associate," says Beveridge, "became Jefferson's ruling thought and purpose. It occupied his mind even more than the Nation's foreign affairs, which were then in the most dangerous state. Champion though he was of equal rights for all men, yet any opposition to his personal or political desires or interests appeared to madden him. A personal antagonism, once formed, became with Thomas Jefferson a public policy. He could see neither merit nor honesty in any act or word that appeared to him to favor Burr."
   It was in such a state of mind, according to historian Beveridge, that Jefferson viewed the arraignment of Burr upon charges of treason and high misdemeanor. "Jefferson felt that he himself was on trial," continues Beveridge, "and knew that he must make good his charges or suffer a decline in the popularity which he prized above all else in life.
   "He proposed that, at the very least, the public should be on his side, and he resolved to exert the utmost efforts of the National Government to bend Marshall to his will. Thus the President of the United States became the leading counsel in the prosecution of Aaron Burr, as well as the director general of a propaganda planned to confirm public opinion of Burr's treason, and to discredit Marshall should his decisions from the bench result in the prisoner's escape from the gallows."
   It was on June 9, 1807," that Aaron Burr arose to announce that he had a "proposition to submit" to the court. President Jefferson in his message to Congress mentioned a certain letter which, according to Burr, it had now become material to produce in court. There were also certain orders and instructions issued by the Secretary of the Navy, which the latter had refused either Burr or his counsel permission to inspect. "Hence," maintained Burr, "I feel it necessary to call upon the court to issue a subpoena to the President of the United States, with a clause, requiring him to produce certain papers; or in other words, to issue the subpoena duces tecum."

Jefferson's Contention.
    Pending Chief Justice Marshall's ruling on Burr's motion, President Jefferson cautiously said to his personal representative at the trial: "Reserving the necessary right of the President of the United States to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, and to whom I assure you of my readiness under that restriction voluntarily to furnish on all occasions whatever the purposes of justice may require."
   Luther Martin, of Burr's counsel, insisted upon the production of the presidential papers. Was not "an accused man to obtain witnesses in his behalf"? Martin contended that never had the denial of such a right been heard of "since the declaration of American independence." Martin asked whether Jefferson was "a kind of sovereign," and answered his own question by saying that he was "no more than a servant of the people." Yet, Martin pointed out, Jefferson's cabinet members, "under presidential influence," had refused copies of official orders.
   Eventually, Marshall acquiesced in Burr's demand that President Jefferson be haled into court with the papers in controversy. The object, Marshall explained, was to produce copies of the Army and Navy orders for the seizure of Burr, the original of a letter written to the President in connection with the case, and Jefferson's answer. Beveridge describes how Marshall stressed the constitutional guarantees of "a speedy and public trial and the right to compulsory process for obtaining witnesses in the accused's favor." Thus "immemorial usage." the language of the Constitution and the national statute all combined to give "any person charged with a crime in the courts of the United States, a right, before as well as after indictment, to process of the court to compel the attendance of his witnesses."
   Marshall came to the conclusion that the Constitution makes no exception whatever to the right given all persons charged with crime to compel the attendance of witnesses. The Chief Justice decreed that "a subpoena duces tecum may issue to any person to whom an ordinary subpoena may issue." Thereupon, Marshall ruled "let a subpoena duces tecum be issued, directed to Thomas Jefferson, President of the United States."
   Beveridge in vivid language tells how "Jefferson's anger blazed when he received the dreaded subpoena." The President "had become very nervous about Marshall's order and plainly feared that the Chief Justice might attempt to enforce it." According to Beveridge, Jefferson himself threatened "to use force against the execution of the process of the national courts." But no attempt to compel Jefferson to appear at Richmond was ever made, and the entire episode ended with Burr's acquittal on the treason charge. The President's fury with Marshall did not vanish, and in his ensuing message to Congress Jefferson urged the House to impeach the Chief  Justice.
(Copyright, 1925.)

MITCHELL WITNESS LIST CUT BEGUN
Both Sides Meet to Reduce Number From Original 73 Sought.

   Both sides in the Mitchell court martial proceedings had their heads together this afternoon and were endeavoring to untangle the question of witnesses to appear in behalf of the accused, which were granted the defense yesterday by the court. Although directed to begin at once the summoning of witnesses, securing of documents and other requests of the defense, the prosecution was unable to comply with President Howze's order to the letter because opposing counsel had not worked out a list of stipulations which play a prominent part in the witness muddle.
   Lieut. Col. Joseph I. McMullen, assistant trial judge advocate, went to the office of chief civilian counsel, Representative Frank R. Reid of Illinois, in the House Office Building, at 10:30 o'clock and was presented by Col. H. A. White, military defense counsel, with a list of stipulations desired from the prosecution. This step is being taken to eliminate the actual appearance of as many of the 73 originally asked for in the interest of time and economy. Those witnesses which the two sides are unable to agree on will have to be passed upon by the court Monday.
   The nature of the testimony to be given for the accused by the witnesses was not indicated today beyond the fact that it probably would tend to substantiate charges made by Col. Mitchell and for which he is being cried. This involves the "truth or falsity" of the two San Antonio statements which the War Department prior to the court-martial proceedings repeatedly declared would not enter into the case. This has not been passed upon by the court as yet.
   Both Col. Sherman Moreland's and Representative Reid's staff declared today they had a tremendous task before them between now and Monday. Hope was held out yesterday that the witness question might be solved by Thursday and that the court could be called into session for the two remaining week days, but the possibility was not so bright today, it was indicated.

MITCHELL REDUCES LIST OF WITNESSES
Papers Relating to Aviation to be Given to Defense in Compromise.

[handwritten note]

By the Associated Press.
   Further compromises in the matter of witnesses and documentary evidence were made today between the prosecution and defense counsel of the court-material trial of conduct prejudicial to good order and military discipline.
   Col. Mitchell agreed to withdraw requests for subpoenas for Maj. Gen. Robert C. Davis, Adjutant General of the Army: Rear Admiral Hilary P. Jones, head of the Navy General Board and president of he Shenandoah inquiry court, and Maj. A. N. Krogstad of Luke Field. Honolulu
   At the same time Lieut. Col. Joseph I. McMullen, assistant trial judge advocate, obtained the consent of the White House and War Navy and Agricultural Departments that documents in their possession relating to aviation be turned over to the defense counsel.