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Ian Ehling
Vice President, Head of Department
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Lot 22
AN EARLY AND IMPORTANT TEST OF EXECUTIVE PRIVILEGE IN THE BURR CONSPIRACY TRIAL. JEFFERSON, THOMAS. 1743-1826. Manuscript Document Signed ("William Marshall," as clerk of the Federal Court in Richmond, and "ABurr"), a subpoena for sitting President Thomas Jefferson ("To Thomas Jefferson, Robert Smith, Henry Dearborne or either of them who may have the papers—hereinafter mentioned") to produce evidence in the case of treason against Aaron Burr, one of the earliest and most prominent tests of the concept now known as executive privilege,
25 October 2022, 10:00 EDT
New YorkUS$200,000 - US$300,000
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AN EARLY AND IMPORTANT TEST OF EXECUTIVE PRIVILEGE IN THE BURR CONSPIRACY TRIAL.
JEFFERSON, THOMAS. 1743-1826. Manuscript Document Signed ("William Marshall," as clerk of the Federal Court in Richmond, and "ABurr"), a subpoena for sitting President Thomas Jefferson ("To Thomas Jefferson, Robert Smith, Henry Dearborne or either of them who may have the papers—hereinafter mentioned") to produce evidence in the case of treason against Aaron Burr, one of the earliest and most prominent tests of the concept now known as executive privilege, 1 p, folio (430 x 340 mm), Richmond, VA, June 13, 1807, this copy for the Secretary of War Henry Dearborn, docketed to the verso, "Subpoena to H.D. to appear at the court, June 13, 1807...," with "H. Dearborne [sic] Es" written beneath, some wear to edges, folds.
THE FIRST AMERICAN SUBPPOENA ISSUED TO A SITTING PRESIDENT, ONE OF THE EARLIEST CASES OF EXECUTIVE PRIVILEGE VERSUS EQUAL RIGHTS UNDER THE LAW. In early 1807, former Vice-President Aaron Burr was arrested under orders of Thomas Jefferson for his role in a wild conspiracy attempting to raise an army in order to separate the Louisiana Territory and western states from U.S. rule. The resulting trial took place in Richmond, under the guiding hand of Chief Justice of the Supreme Court John Marshall. Accused of High Treason, Aaron Burr requested that a subpoena be issued for President Thomas Jefferson, as well as Secretary of the Navy Robert Smith and Secretary of War Henry Dearborn, to turn over certain letters of General James Wilkinson, Burr's co-conspirator-turned-informant. Never before had a subpoena duces tecum been issued to a sitting President, and Marshall did not proceed lightly. Upon consideration, he decided that Burr's right to due process superseded any executive concern, and he had "no choice" but to issue the first subpoena in history to a U.S. President.
Jefferson's response, through his attorney George Hay was somewhat predictable: "The leading feature of our Constitution is the independence of the Legislative, 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 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?"
Despite Jefferson's refusal to acknowledge the subpoena, Marshall's decision importantly set the judicial precedent, albeit rarely tested, that the President of the United States did not exist above the law, and was indeed subject to the courts. In fact, after Burr's acquittal on the charges of treason on September 1, 1807, during his trial on the lesser charge of high misdemeanor, Burr again requested the correspondence. On September 7, Jefferson did send the requested Wilkinson letter through his attorney George Hay, while carefully refusing to acknowledge the subpoena, and redacting details which he considered state secrets (see Christie's sale of The Forbes Collection of American Historical Documents, New York, March 27, 2002, lot 31).
The trial was of utmost importance to American legal history, and the subpoena for Jefferson, Smith and Dearborn a central document to the history of the United States. Giving rise to a host of issues, including executive privilege, equal rights under the law, the independence of the executive branch, as well as the idea of preservation of state secrets. The copy of the subpoena sent to Jefferson, engrossed in a scribal hand, and signed by William Marshall and by Burr, is preserved at the Library of Congress. This copy, sent to Jefferson's Secretary of War Henry Dearborn, is signed by Marshall and by Burr, and was accomplished entirely in the hand of Marshall, in his role of clerk of the Virginia Circuit Court. The copy intended for Secretary of the Navy Robert Smith has not been located.
THE FIRST AMERICAN SUBPPOENA ISSUED TO A SITTING PRESIDENT, ONE OF THE EARLIEST CASES OF EXECUTIVE PRIVILEGE VERSUS EQUAL RIGHTS UNDER THE LAW. In early 1807, former Vice-President Aaron Burr was arrested under orders of Thomas Jefferson for his role in a wild conspiracy attempting to raise an army in order to separate the Louisiana Territory and western states from U.S. rule. The resulting trial took place in Richmond, under the guiding hand of Chief Justice of the Supreme Court John Marshall. Accused of High Treason, Aaron Burr requested that a subpoena be issued for President Thomas Jefferson, as well as Secretary of the Navy Robert Smith and Secretary of War Henry Dearborn, to turn over certain letters of General James Wilkinson, Burr's co-conspirator-turned-informant. Never before had a subpoena duces tecum been issued to a sitting President, and Marshall did not proceed lightly. Upon consideration, he decided that Burr's right to due process superseded any executive concern, and he had "no choice" but to issue the first subpoena in history to a U.S. President.
Jefferson's response, through his attorney George Hay was somewhat predictable: "The leading feature of our Constitution is the independence of the Legislative, 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 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?"
Despite Jefferson's refusal to acknowledge the subpoena, Marshall's decision importantly set the judicial precedent, albeit rarely tested, that the President of the United States did not exist above the law, and was indeed subject to the courts. In fact, after Burr's acquittal on the charges of treason on September 1, 1807, during his trial on the lesser charge of high misdemeanor, Burr again requested the correspondence. On September 7, Jefferson did send the requested Wilkinson letter through his attorney George Hay, while carefully refusing to acknowledge the subpoena, and redacting details which he considered state secrets (see Christie's sale of The Forbes Collection of American Historical Documents, New York, March 27, 2002, lot 31).
The trial was of utmost importance to American legal history, and the subpoena for Jefferson, Smith and Dearborn a central document to the history of the United States. Giving rise to a host of issues, including executive privilege, equal rights under the law, the independence of the executive branch, as well as the idea of preservation of state secrets. The copy of the subpoena sent to Jefferson, engrossed in a scribal hand, and signed by William Marshall and by Burr, is preserved at the Library of Congress. This copy, sent to Jefferson's Secretary of War Henry Dearborn, is signed by Marshall and by Burr, and was accomplished entirely in the hand of Marshall, in his role of clerk of the Virginia Circuit Court. The copy intended for Secretary of the Navy Robert Smith has not been located.