Legislation was necessary, said Giles; as matters stood, the decisions of judges on treason were like Congress "enacting our speeches, interspersed with our laws." With what result? No two judges have yet delivered the same opinion upon some of the most essential features of treason. Take for example the British doctrine that, in treason, accessories are principals. Were they in America? "Judge Chase and others say they are. Judge Marshall says he does not know whether they are or not, but his reasoning would go to show that they are not."[1347]
Solely to gratify vox populi, the Senate next indulged in a doubtful performance. An attempt was made to expel Senator John Smith of Ohio. With only a partial examination, and without allowing him to call a single witness in his own behalf beforehand, a special Senate Committee[1348] presented a report concluding with a resolution to expel Smith because of "his participation in the conspiracy of Aaron Burr against the peace, union and liberties of the people of the United States."[1349] This surprising document was the work of John Quincy Adams,[1350] who apparently adopted the ideas and almost the language of Lucius.
Burr's conspiracy, wrote Adams, was so evil and was "established by such a mass of concurring and mutually corroborative testimony" that the "honor" of the Senate and "the deepest interests of this nation" required that nobody connected with it should be a member of Congress. After an unctuous recitation of accepted generalities and a review of the expulsion of Senator Blount, together with an excellent statement of the law of parliamentary bodies in such cases, Adams got down to the business of destroying John Marshall.[1351]
Marshall had "withheld from the jury ... a great part of the testimony which was essential to [Burr's] conviction.... In consequence of this suppression of evidence" the trial jury had not been allowed to find a verdict of guilty against the traitor. Marshall's "decisions, forming the basis of the issue upon the trials of Burr ... were the sole inducements upon which the counsel for the United States abandoned the prosecution against him" (Smith). An American grand jury had charged Senator Smith with being "an accomplice" of these diabolical plans, and the safety which Marshall's decisions in the Burr trial had thrown around Smith and other associates of the traitor "cannot, in the slightest degree, remove the imputation" which the indictment of Smith had brought to his door.
"If," wrote Adams, "the daylight of evidence combining one vast complicated intention, with overt acts innumerable, be not excluded from the mind by the curtain of artificial rules, the simplest understanding cannot but see what the subtlest understanding cannot disguise, crimes before which ordinary treason whitens into virtue" and beyond "the ingenuity of a demon."
Adams continued: "Whether the transactions proved against Aaron Burr did or did not amount, in technical language, to an overt act of levying war, your committee have not a scruple of doubt ... that, but for the vigilance and energy of the government, and of faithful citizens under its directions ... in crushing his designs, they would ... have terminated not only in war, but in a war of the most horrible description, ... at once foreign and domestic."
To such lengths can popular demand, however unjust, drive even cold, unemotional, and upright men who are politically ambitious. Adams's Federalist confrères reacted quickly;[1352] and the New York Evening Post sharply criticized him.[1353] When the report came up in the Senate, James A. Bayard of Delaware, and James Hillhouse of Connecticut, attacked it and its author with "unusual virulence." Bayard was especially severe.[1354] Thus assailed, Adams was cast into black depression: "It is indeed a fiery ordeal I have to go through. God speed me through it!" he wrote in his diary that night.[1355]
William Branch Giles cast the deciding vote which defeated Adams's resolution—the Senate refusing to expel Smith by a vote of 19 yeas to 10 nays,[1356] just one short of the necessary two thirds. The Virginia Republican Senator attacked the resolution with all his fiery eloquence, and compelled the admiration even of Adams himself.[1357] "I shall vote against the resolution," Giles concluded, "solely from the conviction of the innocence of the accused."[1358]
Herefrom one may judge the temper of the times and the perilous waters through which John Marshall had been compelled to pilot the craft of justice. If that "most deliberative legislative body" in our Government, and the one least affected by popular storms, was so worked upon, one can perceive the conditions that surrounded the Chief Justice in overcrowded Richmond during the trial of Aaron Burr, and the real impending danger for Marshall, after the acquittal of the man whom Jefferson and the majority had branded with the most hideous infamy.
Fortunate, indeed, for the Chief Justice of the United States, and for the stability of American institutions, that the machinery of impeachment was, during these fateful months, locked because the President, Congress, and the Nation were forced to give their attention to the grave foreign situation which could no longer be ignored.