From the foregoing it has appeared that, for the performance of a purely ministerial act, a mandamus will lie to the heads of the great departments of the Federal Government, and, a fortiori, to their subordinates. We have now to inquire whether the President, the chief executive of the nation, is, with reference to the performance of a purely ministerial act, similarly subject to compulsory judicial process. This question has several times been before the courts, and though not often passed upon in limine, has been uniformly answered in the negative.

In Marbury v. Madison42 the question was as to the issuance of a mandamus not to the President but to the Secretary of State. It was argued, however, that the Secretary acted as the agent of the President, and that the President, as Chief Executive, was not amenable to the writ. The court, in its opinion, held that the Secretary was, as to the action prayed for, subject to the writ, but conceded that in cases in which the Secretary was but carrying out the political or discretionary will of the President, the writ would not issue. In this case it will be remembered that the court finally refused to issue the injunction to the Secretary on the ground that the provision of the act of Congress giving the original jurisdiction under which the suit had been brought was unconstitutional. President Jefferson, however, declared that had the mandamus been awarded, he would have considered it an infringement upon his executive rights and as such would have resisted its enforcement with all the power of government.

In Marbury v. Madison the court did not intimate what its position would be in case the performance directly by the President of merely ministerial duties was prayed.

In the trial of Aaron Burr for treason the amenability of the President to a judicial process was brought directly into issue. Marshall, who was conducting the examination, issued, at the request of the defense, a subpoena duces tecum directing President Jefferson to appear and bring with him a certain letter to himself from General Wilkinson. Jefferson refused to appear or to bring the letter. That a compulsory process should be thereupon issued to the President does not appear to have been even considered, but upon a discussion as to whether the Attorney-General should permit the defense to have the examination of a copy of the letter which had been put into his, the Attorney-General's, possession, Marshall said: "I suppose it will not be alleged in this case that the President ought to be considered as having offered a contempt to the court in consequence of his not having attended; notwithstanding the subpoena was awarded agreeably to the demand of the defendant, the court would, indeed, not be asked to proceed as in the case of an ordinary individual." 43

42 1 Cr. 137; 2 L. ed. 60.

In another account of the same trial the Chief Justice is reported to have said: "In no case of this kind would the court be required to proceed against the President as against an ordinary individual. The objections to such a course are so strong and obvious that all must acknowledge them. ... In this case, however, the President has assigned no reason whatever for withholding the paper called for. The propriety of withholding it must be decided by himself, not by another for him. Of the weight of reasons for and against producing it he himself is the judge." 44