TENTH CONGRESS.—FIRST SESSION. (continued 4)

“A. Burr’s answer to John Smith, Oct. 26, 1806.

“Lexington, Oct. 26, 1806.

“Dear Sir: I was greatly surprised and really hurt by the unusual tenor of your letter of the 23d, and I hasten to reply to it, as well for your satisfaction as my own. If there exists any design to separate the Western from the Eastern States, I am totally ignorant of it; I never harbored or expressed any such intention to any one, nor did any one ever intimate such design to me. Indeed, I have no conception of any mode in which such a measure could be promoted, except by operating on the minds of the people, and demonstrating it to be their interest. I have never written or published a line on this subject, nor ever expressed any other sentiments than those which you may have heard from me in public companies at Washington and elsewhere, and in which I think you concurred.[†] It is a question on which I feel no interest, and certainly I never sought a conversation upon it with any one; but, even if I had written and talked ever so much of the matter, it could not be deemed criminal.

“But the idea, I am told, which some malevolent persons circulate, is, that a separation is to be effected by force; this appears to me to be as absurd and as unworthy of contradiction, as if I had been charged with a design to change the planetary system. All the armies of France could not effect such a purpose, because they could not get here; and if they could get here, they could not subsist, and if they could subsist, they would certainly be destroyed.

“I have no political views whatever; those which I entertained some months ago, and which were communicated to you, have been abandoned.[‡]

“Having bought of Colonel Lynch four hundred thousand acres of land on the Washita, I propose to send thither this fall a number of settlers, as many as will go and labor for a certain time, to be paid in land and found in provisions for the time they labor—perhaps one year. Mr. J. Breckenridge, Adair, and Fowler, have separately told me that it was the strong desire of the Administration that American settlers should go into that quarter, and that I could not do a thing more grateful to the Government. I have some other views which are personal merely, and which I shall have no objection to state to you personally, but which I do not deem it necessary to publish; if these projects could any way affect the interests of the United States it would be beneficially, yet I acknowledge that no public considerations have led me to this speculation, but merely the interest and comfort of myself and my friends.

“This is the first letter of explanation which I have ever written to any man, and will probably be the last. It was perhaps due to the frankness of your character, and to the friendship you once bore me. I shall regret to see that a friendship I so greatly valued must be sacrificed on the altars of calumny.

“Be assured that no changes on your part can ever alter my desire of being useful to you; and pray you to accept my warmest wishes for your happiness.

“A. BURR.

“It may be an unnecessary caution, but I never write for publication.

“Hon. John Smith.”

Notes in the handwriting of Mr. Smith.

The first observation made by the gentleman from Massachusetts, upon the contents of this letter was, that it appeared wonderful to him that this letter should have reinstated Burr in Mr. Smith’s good opinion, after some doubts of his views had been excited in Mr. Smith’s mind, by the general clamor of the country against him. The impression produced upon my mind, by observing the contents of this letter, is just the reverse. I think the letter written with great art and address, and well calculated to produce the effect on Mr. Smith’s mind which he states it did produce, the restoration of Burr to his confidence. To form a just opinion on this point, it should be recollected that Burr had previously insinuated himself into Mr. Smith’s confidence, and that Mr. Smith was not at that time apprised of his illicit objects; because, at that time, they were not generally disclosed; and because, it appears, from several passages in the letter itself, that Burr had not disclosed them to Mr. S. Since Burr’s objects have been generally known, we may find passages in the letter obscurely pointing toward them. Of this description is the one referred to by the gentleman from Massachusetts. Speaking of the separation of the Union, Burr writes:

“Indeed, I have no conception of any mode in which such a measure could be promoted, except by operating on the minds of the people, and demonstrating it to be their interest.”

The very mode, says the gentleman, which he was then pursuing. This is very true, but of that it is certainly not in proof that Mr. Smith had any knowledge; and this letter serves to demonstrate, in connection with many other circumstances, that he had not. But, in the very next sentence, Burr proceeds:

“I have never written or published a line on this subject, nor ever expressed any other sentiments than those which you may have heard from me in public companies at Washington and elsewhere.”

And immediately preceding it, he thus writes:

“If there exists any design to separate the Western from the Eastern States, I am totally ignorant of it; I never harbored or expressed such intention to any one, nor did any person ever intimate such design to me.”

Now, sir, take these sentences together, and let any candid mind say, circumstanced as Mr. Smith was, in relation to Burr, whether it was not perfectly natural for him to draw the conclusions he did? Whether these sentences do communicate to Mr. Smith any illicit object on the part of Burr? Whether they do not contain a denial of any intention or effort on his part to effect a separation of the Union? To my mind they do. I am not, therefore, surprised that Mr. Smith drew the inference from them which he did; and I should have been much surprised, indeed, if, from them alone, he had drawn any inference of improper views on the part of Burr. I said there were passages in this letter, which furnished the strongest presumption that Mr. Burr had not communicated his illicit objects to Mr. Smith. Let me now call the attention of the Senate to some of them. After speaking of his intention to settle the Washita lands, Burr writes thus:

“I have some other views which are personal merely, and which I shall have no objection to state to you personally, but which I do not deem it necessary to publish; if these objects could in any way affect the United States, it would be beneficially,” &c.

If Burr had already communicated his views to Mr. Smith, why should he say in this letter, “I shall have no objection to state to you personally;” certainly if he had already stated them, this profession would not only have been unnecessary, but foolish. Burr again writes:

“This is the first letter of explanation which I have ever written to any man, and will probably be the last. It was, perhaps, due to the frankness of your character and to the friendship you once bore me. I shall regret to see that a friendship I so greatly valued must be sacrificed on the altars of calumny. Be assured that no changes on your part can ever alter my desire of being useful to you; and I pray you to accept my warmest wishes for your happiness.”

Here follows the postscript:

“It may be an unnecessary caution, but I never write for publication.”

From the whole tenor of this letter the real connection between Mr. Smith and Burr may be easily discerned; but it is particularly demonstrated by these last sentences. In them the real state of Burr’s mind may be clearly seen. They discover a man conscious of having abused the unguarded confidence and misplaced friendship of another, which he was about to lose by the public exposure of his views. They display despondency and regret at the circumstance, and attempt to make a miserable atonement by a renewal of professions. They demonstrate, too, that there was no participation in the conspiracy. In further corroboration of these conclusions, it ought not to escape notice that, on Burr’s next visit to Cincinnati, he took lodgings at a tavern, and avoided Mr. Smith’s hospitality, which would, doubtless, have been still open to him; he having been more successful in regaining Mr. Smith’s confidence by the artful letter written by him, than he had expected. This I believe to be the plain, obvious, and natural import of this letter. To suppose that it was the effect of a preconcerted arrangement between Burr and Mr. Smith, and intended to disguise the real connection between them, would be a strained, improbable, unnatural supposition, and, therefore, in my judgment, ought not to be relied upon in any case, but especially not upon a question of guilt or innocence. The postscript of the letter itself furnishes another strong presumption against this conclusion. The next circumstance, in point of time, from which inferences injurious to Mr. Smith are drawn, happened on the 2d or 3d of December, at Frankfort, in Kentucky. At this time and place, Burr was attending on the court upon his second trial. Mr. Smith was drawn thither by business, when a short interview took place, between himself and Burr, very immaterial in its objects or consequences. The ground of crimination deduced from this circumstance, is, that Mr. Smith did not voluntarily attend the court as a witness against Burr, and testify to the disclosures which Burr had made to him upon his last visit to Cincinnati. Mr. Smith stated, at the time, his willingness to attend, but believed he knew nothing relevant to the ground of charge against Burr.

The gentleman from Massachusetts differs from Mr. Smith in opinion on this point, and conceives that if Mr. Smith had attended that court, and disclosed what he has since disclosed, in relation to Burr’s last communications to him, it would have been sufficient for Burr’s conviction. I differ entirely from the gentleman on this point. All that we know relative to Burr’s disclosure of his views, at that time, is furnished by Mr. Smith himself. What was disclosed, it would probably be best to take from Mr. Smith’s own words:

“The candor discovered in the above-recited letter, (of October 26, 1806,) inspired my confidence, and when he made his second visit to Cincinnati, in November last, he disclosed his plan fully to my view, as I thought, which added strength to my confidence. He being about to take leave of me, observed: ‘Mr. Smith, my object in a few months will be disclosed; you will not find it dishonorable or inimical to this Government. I feel superior to the mean artifices which are ascribed to me; calumniators I do not notice, for as fast as you put one down, another will rise up. This much I will venture to tell you, if there should be war between the United States and Spain, I shall head a corps of volunteers, and be the first to march into the Mexican provinces; if peace should be preserved, which I do not expect, I shall settle my Washita lands, and make society as pleasant about me as possible. In this Government I have been persecuted, shamefully persecuted, and, I am sorry to say, that in it all private confidence between man and man, seems to be nearly destroyed.’ He showed me a deed for a large tract of land on Red River, and said, ‘if I would consent to let my sons go thither, he would provide well for them,’ to which I gave consent, though I never communicated it to my eldest son until last Saturday, the day on which he returned from Marietta, and not till he expressed a disinclination to co-operate with Colonel Burr’s object, till he knew whether it was hostile to the Government of the United States or not. Colonel Burr told me, further, ‘that very many of his friends, in different parts of the United States, would remove and settle with him, and that he would be the best neighbor this country ever had,’ and repeated ‘that his object was not hostile to the people of the United States, or dishonorable to himself;’ and, further, ‘that, in a few months, many of his enemies would be proud to call him their friend.’”

What is here disclosed? Two objects only. The first to settle his Washita lands; the second, in the event of war with Spain, to head a company of volunteers, and be the first to march into Mexico. What was the charge against Burr? A misdemeanor, by beginning and setting on foot a military expedition or enterprise against a nation with which the United States were at peace, &c. Would this evidence have had any tendency towards supporting this charge? Certainly not. Spain had nothing to do with the settlement of the Washita lands, and with respect to the contemplated military expedition into Mexico, it was to be undertaken only in the event of war, and of course could be no violation of a law which forbids such enterprises, only against nations with which the United States are at peace. The evidence, therefore, could not support the charge; and whether such enterprise in time of war would have been lawful or not, would have depended upon the circumstance of the partisan’s acting with or without a commission from the United States, but the gentleman from Massachusetts remarks that this pretended condition, upon which the expedition against Mexico was to be undertaken, was too thin a disguise to impose upon the most credulous or ignorant. I will here admit that I always thought it a very thin disguise; but did every body think so, and particularly before Burr’s other views were disclosed? It is known that many men of the first talents were deceived by this disguise long after this period. It was urged by many as a substantial ground of defence in favor of Burr, during the whole course of his trial at Richmond, and many adhered to it, even after the trial was over. Why is it expected that Mr. Smith particularly ought not to have been the dupe of this disguise at that particular period? It cannot be because he is known to have reposed a blind confidence in Burr. It is probable that Burr’s knowledge of that circumstance induced him to suggest the disguise. It is certainly the circumstance which lulled Mr. Smith’s suspicions, and made him the dupe of the artifice. It may be said, and truly said, he ought to have been more guarded; it would certainly have been better for Mr. S. to have been a better judge of human nature, and his present condition is sufficient evidence of the misfortune of the want of that knowledge, but it is no evidence of a crime, or of a criminal intent. The only conclusion I draw from this circumstance is, that Mr. Smith furnishes a striking example of a plain-dealing, unsuspicious man, involved in irretrievable difficulties from the professions and flatteries of an artful and designing one.

The next observation made upon this part of the evidence disclosed by Mr. S. is, that he consented to let his sons go with Burr, from which a knowledge of Burr’s illicit views is inferred. It certainly would be an incorrect application of the rules of evidence to infer an object different from the one disclosed by the evidence, particularly when the one expressed is much more natural and probable than the one inferred. Mr. Smith himself furnishes both the fact and the object. He says he was induced to consent to his sons going with Burr, from Burr’s promises to advance their fortunes by giving them large portions of his Washita lands. Was not this a very natural object? What could be more natural or probable than for a father to be influenced by a motive of advancing his son’s fortunes? But it is said this conduct discovered too much confidence in Burr, and too much simplicity in Mr. Smith, there must be therefore some other concealed motive for it. It is admitted that none is proved, and I believe none exists. It is perfectly consistent with all the rest of the evidence. It does demonstrate too much confidence and too much simplicity; but it demonstrates nothing else. It demonstrates no crime. It does not demonstrate any participation in the conspiracy of Aaron Burr. We have now passed through these scenes of inferences and suspicions, and arrived at the 14th of December, 1806. The gentleman from Massachusetts, with his usual candor, here states, that from this time Mr. Smith’s conduct became exemplary, from this date every effort on his part was made to defeat the conspiracy; he contributed his full quota of exertion for that purpose, and succeeded. How can this laudable conduct be reconciled with the inferences of guilt made against him? Why, sir, another inference more preposterous than any other, is brought up to support all the former inferences, in my judgment, sufficiently preposterous and improbable in themselves. It is said that this laudable exertion to suppress the conspiracy by Mr. Smith was intended as a cover to his former misconduct. But certainly, sir, before this inference is drawn, the former misconduct ought to be proved. It ought not to be made evidence of the misconduct itself. It certainly cannot be a correct rule of evidence to infer a wrong motive from a right action. But, sir, this inference is made against every rule of probability. It is not probable that if the conspiracy should be suppressed by Mr. Smith’s exertions in common with others, that such suppression would cover his own misconduct. It would have been the most effectual mode of detecting and exposing it. What hope could Mr. Smith have indulged, that if he had been engaged in the conspiracy, and had turned traitor to the rest by exerting himself in its suppression, that he would have been exempted from exposure? Would not such conduct have tended to excite the resentment of the other conspirators against him, and to call forth from them every exertion to expose him? This conduct was placing them at defiance, and in my judgment, is one of the strongest circumstances of his innocence. It was not at all calculated to cover his participation, and it appears to me absurd to conclude that it was resorted to for that purpose. But, sir, look at Mr. Smith’s disclosure to the Secretary of War at this period. At this time could he not have anticipated any prosecution against himself. It was the day after the receipt of the President’s proclamation. At that time he communicates to the Secretary of War all the communications made by Burr to him at any previous time, confirmed in every respect by the evidence of General Gano. I believe he did it with candor, and then he makes the following natural and correct observations, after having stated that Burr had deceived him with his apparent candor, that he had before believed Burr’s views to be honorable; he remarks: “From the proclamation of the President, I am induced to believe that he is possessed of much more information than has come under my notice, and therefore the utmost attention will be paid to it, as the people here are universally (almost) well disposed to the Government, &c.”

Upon the supposition that Mr. Smith is innocent, this conduct is natural and its object obvious. Upon the supposition of his guilt, it is unaccountable, and would have been without a rational object. I cannot, therefore, infer guilt against all the probabilities of innocence. I have now gone through all the evidence which has been deemed by the gentleman from Massachusetts the most material against Mr. Smith. I have omitted many circumstances both in the papers formerly before the Senate, and those now presented by Mr. Smith’s counsel, tending further to demonstrate his innocence; to these I merely request the attention and recollection of the Senate. It has not been my object to dilate on them, but merely to state the reasons on my mind why the conviction of Mr. Smith’s guilt was not produced on it, which has been on the gentleman’s from Massachusetts. This has been done by the best consideration of those parts of the evidence which he so ably and eloquently selected and presented to our view; of course the worst part of the picture has been constantly before us. Upon a candid review of all the circumstances, to what do they amount? To suspicions, and suspicions only—suspicions unnatural and improbable. Has a single act of participation in Burr’s conspiracy been proved? Not to my discernment. Has any been suggested to have been proved? I have heard of none. If any criminal act has been committed, why do not gentlemen tell us what it is—in what it consists? Why do they not put their finger upon it? I call upon gentlemen, I challenge them to do it. That at least must be done, before I can convict the accused of guilt.

Mr. Anderson said, when he moved the postponement of this business, the day before yesterday, it was from a desire to collate the testimony; which, having done, he was prepared to vote when he first took his seat this morning, and had not intended to have taken any part in the discussion of the subject. But, seeing that almost all the strong points of circumstantial testimony had been either overlooked or not duly appreciated by the gentlemen (Mr. Hillhouse and Mr. Giles) who had spoken against the adoption of the resolution, and who had, withal, entered with great warmth into the discussion, he felt himself bound, as a member of the committee to whom the case of Mr. Smith had been referred, to examine some of the prominent parts of the evidence, and to present it impartially to the view of the Senate. Mr. A. said, in the course of his examination of the evidence, he should not, as the gentleman who preceded him had done, entirely discard the testimony of Elias Glover, but should make that testimony, in its proper place, a part of the groundwork of his observations, and support it by Mr. Smith’s own affidavit, and his admission of parts of it in his answer to the committee. Mr. A. said, in order to have a correct view of the case, it would be necessary to recite sundry parts of the testimony—as, by combining and comparing it alone, could the subject be clearly understood—and he would begin with the evidence of Peter Taylor, (as being the first in order,) who states that in the month of October, 1806, he was sent by Mrs. Blannerhasset, to Lexington, after Mr. Blannerhasset, with a letter, to prevent Colonel Burr from coming back with him to the island. That he was ordered to call at Mr. John Smith’s. That he called at Mr. Smith’s store and asked for him. When he came out, Taylor inquired for Colonel Burr and Blannerhasset. Mr. Smith said he knew nothing of either of them. That he, Taylor, must be mistaken as to the place where he was to inquire. Taylor said he was right. That he was directed to inquire for John Smith, storekeeper, Cincinnati; and asked Mr. Smith if he did not recollect a young man that had come for Colonel Burr’s top-coat, (greatcoat,) and informed Mr. Smith he had lived with Mr. Blannerhasset three years. He says that, when Mr. Smith heard him talk so, he took him up stairs, and asked him the news. Wanted to know what was passing; what was said about General Wilkinson; and if he, Taylor, would carry a letter from him to Blannerhasset, which he agreed to. Mr. Smith then informed Taylor that he would find Burr and Blannerhasset at the house of a Mr. Jourdan, at Lexington, where he found Mr. Burr, who, among other inquiries, asked what letters he had? Taylor replied he had two; one from Mrs. Blannerhasset, and one from John Smith, of Cincinnati. The letter from John Smith, Mr. Burr allowed, was for him, (it was directed to Blannerhasset,) but on Mr. Burr’s opening it, he found it contained a letter for him. Having recited some parts of the testimony of Peter Taylor, I shall proceed to make some observations thereon. And here let me premise, that the general character of Peter Taylor has, heretofore, stood the test of the strictest scrutiny at Richmond; and, on a recent inquiry into his veracity and general character, the counsel of Mr. Smith has found both so well sustained, that they have not, in the course of their arguments, attempted to invalidate it, but have contented themselves with pointing out some small mistakes, that have not, in the least degree, lessened the validity of his testimony. With this fair character, then, does Peter Taylor stand before you, and his testimony must receive that portion of credit which is due to established integrity. But notwithstanding the credit of this witness, thus established, Mr. Smith, in his answer to the committee, denies almost every thing that has been sworn to by Peter Taylor. We must then believe, either that Peter Taylor, with all his fairness of character, and totally disinterested, has sworn false respecting the conversation with Mr. Smith, or that Mr. Smith in his answer to the committee, must have denied what he knew to be true. Which are we to believe? I shall make no comment. Every member of the Senate can form as correct an opinion for himself upon this subject, as I could possibly express. Let us now examine what the testimony of Peter Taylor amounts to against Mr. Smith. Taken by itself, although it may excite strong suspicion, perhaps no great criminality could attach to it; but, combine it with many other circumstances, and it wears a different aspect. I pass over the extraordinary conversation between Mr. Smith and Peter Taylor, and come to the question asked by Mr. Smith. What was said about General Wilkinson? Why is the name of General Wilkinson introduced by Mr. Smith? The Senate will recollect that, in the deciphered letter, written by Colonel Burr to General Wilkinson, which was read yesterday by the honorable chairman of the committee, (Mr. Adams,) Colonel Burr tells General Wilkinson that the contractor will supply provisions, to be sent to such points as Wilkinson shall direct. Mr. Smith is the contractor for supplying the army; and a strong inference would here arise that he was the person meant by the term contractor; hence his question—What is said about General Wilkinson? And this question, asked under the peculiar circumstances which here present themselves, implies a knowledge of Colonel Burr’s plans, which are developed by the communication General Wilkinson made to the President, of the contents of the deciphered letter. Add to these considerations, Mr. Smith’s first denying to Taylor that he knew any thing about Burr or Blannerhasset, and shortly after, when he found Taylor was a domestic of Blannerhasset’s, he directed Taylor to the house in Lexington, where he would find Colonel Burr; and they certainly excite a strong impression that Mr. Smith had a knowledge of Colonel Burr’s plans and movements. It will be recollected that Mr. Smith asked Taylor to carry a letter from him to Blannerhasset; but, from the testimony of Taylor, it appears that the letter was for Colonel Burr. The contents of this letter, and the answer thereto, are presented to us, and from them arguments have been drawn to prove that Mr. Smith is entirely innocent. But the very able elucidation which had been given of those letters by the honorable chairman of the committee, (Mr. Adams,) has not, I expect, left a very strong impression of the innocence of Mr. Smith, either with respect to the tenor of the correspondence, or the object of it. A very different construction has, however, been attempted to be given to the contents of this letter, and the answer thereto, by the gentleman from Virginia, (Mr. Giles.) Which will best comport with the whole train of Mr. Smith’s conduct in relation to Colonel Burr’s plans, the Senate will determine.

I shall now proceed to examine the testimony of Elias Glover, and I think I can show that Mr. Smith’s own affidavit does most fully support some of the most material parts of it; and it is worthy of remark, that Mr. Smith, in his answer to the committee, admits more of the facts sworn to by Elias Glover, notwithstanding the very bad character Mr. Smith gives him, than he admits of the facts stated in Peter Taylor’s deposition, whose character, with all the pains that have been taken to invalidate it, yet remains untarnished. For this extraordinary procedure it may be necessary to account. With respect to Peter Taylor, it will be recollected, Mr. Smith had never admitted the material parts of the conversation as stated by Taylor to have taken place. That Taylor’s weight of testimony of course depended on his own character, and Mr. Smith in his affidavit presented to the Senate, says, that he can prove the falsehood of the statement of this witness. Thus was this man’s testimony to be positively disproved, which however has failed. But Glover’s could not be completely prostrated in the same way, because Mr. Smith had on his oath admitted sundry of the facts stated by Glover, and that at a time when Mr. Smith hardly calculated upon being arraigned before the Senate under the present charge. It therefore became necessary that Glover’s general character should be so completely destroyed by positive swearing, as to disprove, if possible, even the very facts which are fully corroborated by Mr. Smith’s own admission on oath. But, Mr. President, when I look around, and observe that many of this body, either on the bench or at the bar, have been much accustomed to compare positive swearing with strong circumstantial testimony, I have not a doubt, but that each of those different kinds of evidence will be duly and deliberately estimated. I will now proceed to state some of the material parts of Elias Glover’s testimony, and will afterwards compare those parts with Mr. Smith’s own affidavit. In Glover’s deposition, he states that on the 23d November he, in company with a friend, (this friend appears to be William McFarland,) went to Mr. Smith’s, and had a conversation with him, in which Mr. S. stated that Mr. Burr had disclosed to him his object, which he had never fully done before—which was, in the first place, should a war take place between the United States and Spain, to head a corps of volunteers, and march into the Mexican provinces; a great number of enterprising young men were engaged for that purpose—that his preparations on the western waters were extensive—that the plan had been long maturing, and expressed a full confidence in Colonel Burr’s success. Mr. Smith said that his sons were going to Orleans in a few days, and that he had consented that Colonel Burr should there take them into his charge; he having assured him that he, Burr, would provide well for them—he also said that Burr wanted the gunboats he was then building. Mr. S. said he had not been well treated about the boats he had before built. Mr. S. in his deposition sent to the President, some time after the proclamation issued, states that when Burr made his second visit to Cincinnati, in November, 1806, he disclosed his plan fully to him as he thought. Being about to take his leave, he said, Mr. Smith, my object in a few months will be known; you will not find it dishonorable or inimical to this Government. Thus much I will venture to tell you, if there should be a war between the United States and Spain, I shall head a corps of volunteers, and be the first to march into the Mexican provinces. In this statement of Mr. Smith, he fully confirms the deposition of Glover; and he also admits that he agreed to let his sons go with Colonel Burr. This is another very important point, which goes to support the testimony of Glover. For how could Glover have known this fact, but from Mr. Smith himself—for Mr. S. seems to have been so cautious about communicating it, that from his own affidavit, made the 6th January, 1807, he swears that he never communicated it to his eldest son until the Saturday preceding the 6th January. There is one point of some importance, which Mr. S. though virtually, does not absolutely deny, but evidently intends to deny it in his answer to the committee. It is that part of Glover’s testimony respecting the gunboats, which is supported by the letter of the Accountant of the Navy in answer to one from the chairman of the committee. The accountant says, that Mr. Smith had previous to November, 1806, built two gunboats for the United States, and that from some change in the plan, there arose a difficulty in fixing a proper valuation. Glover says Mr. Smith told him he had not been well treated about them at Washington. I would ask how could Glover ever have known that there had been the smallest difficulty about Mr. Smith’s gunboats which he built for Government, if Mr. S. himself had not communicated it. There is no great criminality in this communication, but it certainly tends to prove substantially the conversation between Mr. Glover and Mr. Smith. Thus, I conceive, have several important and material parts of the testimony of Elias Glover been supported, and so far as circumstantial testimony can tend to establish facts, is the deposition of Glover entitled to credit.

It has been attempted to be shown, that Glover was a bitter enemy of Mr. Smith, and affidavits to that effect have been produced, from which it is inferred that no kind of communication whatever could, or had, taken place between them. In the deposition of General Gano, it is stated that, in the summer of 1806, Mr. Glover did, in an electioneering conversation, make use of harsh epithets respecting Mr. Smith. But from the deposition of Mr. Carr, at whose house Mr. Glover boarded, it appears that Mr. S. did visit Mr. G. at his lodgings, and that he saw them engaged in private conversation in the fall of 1806.

Mr. Dugan, who is stated to be a merchant at Cincinnati, deposeth that he boarded in the same house with Mr. Glover, in the fall of 1806; that he has seen Mr. Smith going to Glover’s lodgings, at the dusk of the evening, and that Mrs. Carr, the landlady, frequently expressed herself in the following terms: “I wonder what brings Mr. Smith so often to this house after dark, and causes him to stay so long in Mr. Glover’s room?” or words to that effect. Now, if we believe these witnesses, and we have no reason to doubt their veracity, there certainly must have been a very good and intimate understanding between Mr. Smith and Mr. Glover in the fall of 1806, and this will account for Mr. Smith’s free communication to Mr. Glover; and the deposition of William McFarland proves the conversation between Mr. S. and Mr. G. to be substantially correct; and as Mr. Smith has fully proved that Glover and McFarland were both concerned in Burr’s plans, it will remain with the Senate to say whether it has not also been proved that Mr. Smith was likewise concerned. I shall take a very short view of Mr. Smith’s journey to Frankfort, at the time he saw Col. Burr there, shortly after the conversation which has been stated to have taken place at Mr. Smith’s own house, with Glover and McFarland. Some business led Mr. S. to Lexington, where he was informed by a Mr. Jourdan, that if it was known he (Smith) was there, he would be summoned as a witness against Colonel Burr, who it was said was at that time arraigned at Frankfort. Mr. S. said that he was willing, and that he knew nothing of the business. A similar conversation passed between Mr. S. and a Mr. Kelly, by which it appears that Mr. Smith did go to Frankfort on his own business; that for want of General Adair, Mr. Burr’s trial before the grand jury was delayed; but Mr. Smith said he could not be detained at Frankfort from his business, particularly as he knew nothing that would either criminate or exculpate Colonel Burr. Thus we see Mr. Smith denying any knowledge whatever of Col. Burr’s plans, although he had acknowledged that Colonel Burr had disclosed his views to him; and the charge then against Colonel Burr was, an intention to invade the Spanish provinces. Mr. Smith’s testimony, had it been given, would certainly have thrown much light on the subject, and might have put a complete stop to all the future consequences which created so much agitation throughout every part of the continent.

In about ten days after this affair happened, on the evening of the sixteenth December, Mr. Smith told Mr. Token, as appears by his deposition, that he never believed Colonel Burr to be engaged in hostility against the United States, until he saw the President’s proclamation. Until then he believed, as we had been in expectation of a war with Spain, that if Colonel Burr was engaged in any enterprise, it was under the protection, and with the advice of our Government. About the same time, Mr. Smith makes a similar communication to Mr. Gano, who inquired of him if he was acquainted with Burr’s designs and mysterious movements in the Western country. Mr. Smith said he had endeavored to find out, but could not, further than they were honorable, and would be approved by the United States; that he was going to settle his Washita lands, and would, if a war should take place between Spain and the United States, be ready to embark in it, and that many who were now his enemies, would then be glad to call him their friend. Major Riddle states that he had the command of the militia that were called out to stop Burr’s boats; that he was stationed near Mr. Smith’s house, and had instructions from his superior officer to try to find out whether Mr. S. knew any thing of Burr’s affairs, and what he knew; and that, in one of the conversations had with him, Mr. S. said he knew more of Burr’s concerns than any man in the State of Ohio, but one. Those various declarations thus made by Mr. S. at several different times, and under different circumstances, appear to be entirely inconsistent with one another. We see by the testimony of Jourdan and Kelly, that Mr. Smith declared that he knew nothing about Mr. Burr’s business, and nothing that could criminate or exculpate him. We have seen what Glover stated of what Mr. Smith communicated to him; we have seen that statement confirmed by Mr. Smith’s own affidavit, sent to the President; and we now see what Mr. S. has declared to Mr. Token and Mr. Gano; to the former he says, that if Burr was engaged in any enterprise, it was under the protection, and with the advice, of our Government; this was the very language Mr. Burr himself held out to induce the unwary and unsuspecting to join him. To Mr. Gano, Mr. Smith says, he had endeavored to find out Burr’s plans, but could not, further than that they were honorable, and would be approved by the United States; and to Major Riddle he says, he knew more of Burr’s plans than any man in the State of Ohio, but one. These three last conversations took place about ten days after Mr. Smith had declared to Jourdan and Kelly, that he knew nothing of Burr’s business, or any thing that could criminate or exculpate him. How are these various declarations of Mr. S. to be reconciled? At one time he says he knows nothing of Burr’s affairs; ten days after, he says he knew more of his concerns than any man in the State of Ohio, but one; and goes so far as to say, that if Burr was engaged in any enterprise, it was under the protection, and with the advice, of our Government; and all this after Mr. Burr had told him that he had been persecuted in this Government, shamefully persecuted, and that, in it, all private confidence between man and man seemed to be nearly destroyed. Could, or did, Mr. Smith believe that the Government countenanced any of the plans of Mr. Burr? It appears to me impossible. What, then, could induce him to make such a declaration, and at different times? Did Mr. S. believe that the Government would give its sanction to an illegal act? For, as a member of the National Legislature, he must have known that it was not authorized by law, and that the President would not dare, in violation of the constitution, (even if had ever so great an inclination,) to countenance an enterprise that would inevitably involve our country in war. And did Mr. S. believe that the Administration had such unbounded confidence in Mr. Burr as to intrust him with so important an expedition at that critical period? Yet these things we must believe, if we believe Mr. Smith sincere in his declaration; and if we do believe him sincere in saying that if Mr. Burr was engaged in any enterprise, it was under the protection, and with the advice, of our Government, we must believe that he was conversant with Mr. Burr’s plans, which must have been very plausibly impressed upon him indeed, to have induced him to have formed so extraordinary an opinion.

Mr. Pope.—It is with reluctance that I rise at so late an hour to express the reasons which will influence my vote. The very able and luminous view which my honorable friend from Virginia has taken of this subject will supersede the necessity of many additional remarks from me.

The counsel of Mr. Smith have opposed the resolution on two grounds: First, that the Senate have no jurisdiction in the case; second, that the evidence does not warrant its adoption. Although I have dissented, and still dissent from the opinion of other gentlemen in their application of some of the principles laid down in the report of the committee, I concur with them on the general ground of jurisdiction. Their arguments on this point were very plausible and ingenious. They have contended that the Senate has no power to inquire into any offence of which one of its members may be accused, that is cognizable in a civil court of criminal jurisdiction. Every man is equally amenable to the general laws of the land, and liable to be prosecuted and punished in the civil courts; but when a man is clothed with a legislative character, he is placed in a new relation; and, besides being amenable to the judicial tribunals of his country, he becomes, to a certain extent, responsible for his conduct to that body to which he belongs; and that body has a power to inquire into it, without the aid of a civil court. Whenever a member of this House shall be charged with a crime punishable by the general laws of the country, it may be a question worthy of consideration, whether to refer it to the civil court, or to have it examined before this body. On this question, the reasoning of the counsel, when addressed to the sound discretion of the Senate, would merit attention. If, however, the Senate should deem it necessary or expedient to make the inquiry, I entertain no doubt of its power to do so.

I will add nothing more on the subject of jurisdiction, but proceed to consider whether the resolution is supported by the evidence before us. The gentlemen for and against the resolution who have preceded me, seem to consider Glover discredited, and in their arguments, have laid his affidavit entirely out of the case. I shall not inquire into the credibility of this witness, after the solemn protest I have so often made against the use of ex parte testimony, either to criminate the accused, or to impeach the characters or credibility of the witnesses; the Senate must be satisfied that I should be very unwilling to bottom my vote on such testimony. My mind revolts at the idea of pronouncing a man guilty of an infamous crime upon a private ex parte affidavit, especially of a private conversation, so liable to be misunderstood, and so impossible to be disproved. The precedent would be a monstrous one, and the first, I believe, known in this country. I cannot give my vote to sanction it. We are called upon to declare to this nation, that Mr. Smith has been guilty of participating in the conspiracy of Aaron Burr against the peace, liberties, and union, of the people of these States. To authorize us to pronounce the sentence, one of two things ought to appear; either that he has committed some treasonable act, or that Burr’s treasonable project was disclosed to him; and that he connived at, or improperly concealed it; for, I presume, it will be conceded that it should appear that Mr. Smith has been guilty of some act of a treasonable nature. Glover was the important witness against Mr. Smith before the grand jury at Richmond, and his testimony has been deemed very material during the present investigation. If his affidavit is abandoned, I would thank some gentleman to specify the evidence which proves Mr. Smith guilty of committing or concealing any thing treasonable. We are told, however, that, although no particular part of the evidence, or no single link in the chain proves his guilt, yet the whole circumstances combined make it sufficiently manifest. I must confess that many circumstances, which do not appear to have any necessary connection with each other, have been put together with great ingenuity, and from them strong inferences drawn unfavorable to Mr. Smith. After exhibiting this chain in its most plausible and imposing attitude, I believe gentlemen will be at a loss to inform us what is the result, or what particular part, if any, it proves Mr. Smith has performed in this conspiracy of Burr. My friend from Virginia has well explained the circumstances stated by Peter Taylor. Peter Taylor may be mistaken in some of the circumstances, but, admitting the whole to be true, there is nothing incompatible with innocence. It is evident that Mrs. Blannerhasset’s sending Peter Taylor, the letter from Smith to Burr, and Burr’s answer, were not the result of any previous concert, but grew out of the circumstances of the moment. The conversation mentioned by Colonel Taylor has been much relied on. I have, from personal acquaintance, as well as from character, too much confidence in the honor and veracity of Colonel Taylor, to suspect, for a moment, that he would intentionally misrepresent; but if the testimony of Doctor Sellman is to be regarded, we might be induced to suppose it possible that Colonel Taylor either did not apprehend Mr. Smith’s meaning correctly, or that he did not hear the whole of his observations. I am not, however, convinced that Colonel Taylor has been mistaken. I disapprove, very much, the dissemination of such sentiments; it tends to weaken the bond of union, but it cannot, surely, be deemed an infamous or criminal act, which will constitute a ground of expulsion. It is worthy of remark, that almost the whole of the testimony against Mr. Smith relates to conversations; a species of testimony which should be received with great caution. I beg leave to remind gentlemen of some circumstances which have occurred in this city during the present session. Conversations, which have been repeated on the same or the day after they took place, have been understood, and represented differently, by different gentlemen who were present. The gentlemen who have advocated the expulsion of Mr. Smith, have relied principally on Mr. Smith’s own statements. If Mr. Smith’s explanation of his own conduct is to be resorted to, the whole should be taken together. It would be very unfair to garble it. However improper or dangerous it may be considered, to permit a man to prepare the means of a military expedition against a foreign government, without the authority of his own, Mr. Smith’s explanation in his answer, his conduct and declarations, after the President’s proclamation arrived at Cincinnati, his letter to the Secretary of War, of the 14th of December, 1806, afford a strong presumption that he had no criminal intentions. In his letter to the Secretary of War, he stated that, about two weeks before he had called on Burr, then at Cincinnati, and requested to know his object; Burr answered that, in the event of war with Spain, which he deemed inevitable, he would head a corps of volunteers, and march into Mexico; but if peace should be preserved, which he did not expect, he would make a settlement of lands. This was the only disclosure, if it may be called one, which it appears was ever made to him, and this he communicated to the Government two weeks after he received it; but observes, in his letter, that Burr had expressed himself with apparent frankness and candor, that he could not believe that he was engaged in any criminal project. Inasmuch, however, as the President had issued his proclamation, he presumed he must have more information than himself, and considered it his duty to enforce it.

All parties about Cincinnati seem to agree that Mr. Smith was one of the most active and efficient men in arresting the progress of the expedition. He procured the public arms on his own responsibility, and put them in the hands of the militia. It has been said that he pursued this course to blind the people, and not from patriotic motives; this is uncharitable indeed. If Mr. Smith had disregarded the warning of the President and discountenanced an attempt to stop the expedition, such conduct would have been relied on as very strong evidence of his connection with Burr; so, that, whether he was active or passive, his conduct, after suspicion had alighted upon him, would have been equal evidence of his guilt. Whatever may have been Mr. Smith’s confidence in Burr previous to the arrival of the proclamation, it is evident that he abandoned him the moment he was denounced by the Government. If it be true, as has been alleged, that Mr. Glover was a partisan of Burr’s, it is strange, if Mr. Smith was also concerned, that Mr. Smith and Mr. Glover should have conducted themselves so differently after the arrival of the proclamation; and it appears to me very extraordinary that Mr. Glover, if he had been initiated into the secrets of Mr. Burr’s projects, should, in his communications to the Government, have implicated no person except Mr. Smith, who had been so active in defeating them. Can it be seriously contended that Mr. Smith’s hospitality to Burr and his confidence in him is evidence of his criminal participation? Surely not. If such circumstances are deemed sufficient to prove a man a traitor to his country, hundreds of innocent persons might be implicated. When Mr. Burr was in the Western country in the fall of 1806, I thought, and still think, that the charges made against him in the public prints, and in court by the attorney of the United States, if not sufficient to convict him of crime, ought at least to have put us on our guard, and I considered any attempt under these circumstances to give eclat, or to turn public opinion in his favor, imprudent and improper; but, sir, I should not feel myself authorized to pronounce every man a traitor, who treated Mr. Burr with respect, before the President’s proclamation reached that country. The gentleman from Tennessee has contended that we ought not to require the same evidence that would be requisite to convict a man of treason before a petit jury. No position, received in the light in which this appears to have been considered by many during the present investigation, is more fallacious or dangerous; that we are not bound by the forms or technicalities of the law, I admit; but I contend, with confidence, that the Senate of the United States, when called upon to declare the existence of a fact, are as much bound by justice and conscience to require proof of it, as any other tribunal. A court and jury would not perhaps require the proof to be as clear and conclusive in a case where the sum of twenty pounds only was in dispute, as in a case of life and death; and it may be said, with at least some plausibility, that we ought not to be as scrupulous on the present occasion, where reputation only is involved, as if life was at stake. The difference consists, not in the tribunals which decide, but the importance of the questions to be decided. In every case where a fact is in question, the triers or judges ought to require convincing evidence of it before they assert it. It has been said that if odium or suspicion has attached to a man’s character, he ought to be expelled. This ground, if tenable, cannot be relied on in the present state of this question. If this was a proper ground of expulsion, we should have expelled Mr. Smith when he first presented himself here in November last, on account of the odium which had attached to his character by the finding of the indictments at Richmond; but this ground was abandoned. It was decided by this Senate that Mr. Smith was entitled, on the principles of justice, to an opportunity of controverting the charges against him before he should be banished from this House. We have proceeded to inquire into the fact. The question now to be decided is not whether he is a suspicious character, but whether he is proved by the evidence before us to be guilty of crime. I cannot act upon suspicion, or mere conjecture. I will not bottom my vote upon any thing which does not present itself in the shape of substantial evidence. Were I a citizen of the State of Ohio, mere suspicion or distrust of his integrity, or the circulation of opinions which I disapproved, might be a sufficient reason to me to withdraw my confidence from Mr. Smith, to refuse him my suffrage; very different is my situation. It does not depend on my choice or opinion, who shall represent the State of Ohio in this Senate. I do not feel myself authorized to deprive Mr. Smith of his seat here, until he is proved to have been guilty of some infamous or disgraceful conduct.

Mr. Crawford had determined to take no part in this discussion. The exposition which the subject had received from the gentleman from Massachusetts, was so clear, so comprehensive, and at the same time so candid, as to supersede the necessity of any remarks from him. He felt, however, constrained to make a few remarks in reply to the gentleman from Virginia. The Senate has been told by that gentleman, that its dignity has been assailed by the depositions taken on the part of Mr. Glover, in support of his credibility, that they have been procured on the presumption that this body is to be governed by political prejudices. If this objection is well founded, it applies with equal force to the conduct and testimony of Mr. Smith. From the first to the last word of Mr. Smith’s answer, he endeavors to impress upon this body the zeal with which he has been devoted to the present Administration. In the deposition of every witness examined by Mr. S. as to his own conduct, the witness is questioned upon that point—his zeal for the Administration is the principal point which he labors to establish. If then the dignity of the Senate is assailed by Glover, it is equally so by Mr. Smith.

Another, very convenient method of destroying the force of the depositions inculpating Mr. S. has been adopted by the gentleman from Virginia, and also from Kentucky. We are first told, that they have been taken without proper notice to Mr. Smith; but as many of Mr. Smith’s depositions were taken in the same manner, and liable to the same objection, it was necessary to find some other objection to them, and especially to Mr. Riddle’s deposition. What, sir, is this formidable objection to his deposition? One, sir, which if well founded must be effectual. We are gravely told, sir, if Mr. Riddle is an honest man, and not connected with A. Burr, that Mr. S. would never have disclosed his views to him; and that if he was one of Burr’s associates he cannot be an honest man, and therefore is not entitled to credit. This sir, is a two-edged sword, which is destructive to the credit and reputation of Mr. Riddle indeed; and the same candid mode of reasoning would be equally destructive to the reputation and credit of any other man. If the witness is an honest man, you are not to believe him, because Mr. Smith would not be so foolish as to disclose his views to him; and if he is a dishonest or suspicious character, to whom Mr. Smith might safely disclose his iniquitous plans, then you must believe him, because of his suspicious character. This reasoning may be ingenious, but it certainly has nothing in it of sincerity and candor.

The gentleman from Connecticut cannot believe that A. Burr ever disclosed his projects to Mr. Smith, because all the persons to whom he disclosed them, were inimical to the Administration. It is true that in the Atlantic States, at least east of the Alleghany mountains, that artful traitor addressed himself to persons who were in a state of enmity with the Government, and to no other. He applied to General Eaton, who believed he had just cause of complaint against the Administration; who believed he had suffered absolute injustice at their hands. For the same reason he applies to Commodore Truxton. But, sir, trace him from Philadelphia to Pittsburg—view his conduct on the western side of the same mountains. What is his conduct there? What is his conduct and conversation with the Morgans? His conduct and the motives of his conduct are changed. Here he endeavors to convince every man that it is the interest of the Western country to separate from the Atlantic States. Here he addresses himself to the most respectable and influential characters, who stood high in the estimation of the public, who had no cause of complaint against the Administration. The Morgans were not anti-ministerialists—they were respectable, they were influential; it was therefore important to obtain their countenance and support. Blannerhasset was a man of wealth and talents, and of easy credulity. He is applied to and secured. The next we hear of Aaron Burr is at the house of Mr. Smith. This gentleman stood high not only in his own State, was not only a Senator of the United States, but also a contractor for furnishing the army of the United States. It was an object of the highest importance to the success of Aaron Burr’s plans to obtain his aid and co-operation. But we have been told that it is improper in the investigation of this subject, to introduce the acts and sayings of Aaron Burr. If this is correct, there is an end of the question. After deciding this point, it was wholly unnecessary for the gentleman from Virginia to have performed the herculean labor which he afterwards attempted. How, sir, is it possible to convict John Smith of a participation in the views or plans of Aaron Burr, if the sayings and acts of Aaron Burr are to be excluded from the investigation? It is impossible, sir. If this attempt to keep out of view the words and actions of Aaron Burr had been made by an advocate in a criminal court, it would justly be entitled a coup de main. Aaron Burr had the strongest possible inducements to seduce Mr. Smith and to obtain his countenance and assistance. He was contractor for your army. He could procure supplies for his men, and the then situation of your army was such, that the supplies procured and sent by the contractor might with equal facility be converted to the use of Aaron Burr or applied to the support of the legitimate army. The procurement of supplies in sufficient quantity for Burr and his men by any other person, would have excited suspicion, and created alarm. He arrived at Mr. Smith’s on the 4th September and remained an inmate of his house until the 9th or 10th, and yet Mr. Smith says he never mentioned to him any of his designs or plans, not even of the settlement of Washita lands. This he asserts in his letter of the 14th December to the Secretary of War. On the 6th January afterwards, he says and swears that Burr did during his first visit mention the settlement of those lands. Yet the gentleman from Virginia not only discovers no contradiction between the oath and letter, but thinks he discovers strong evidence of their consistency and agreement. To me, sir, there appears a direct and palpable contradiction. On the 23d of October Peter Taylor arrives at the house of Mr. Smith and inquires of him, at his own door, whether he knew anything of Burr and Blannerhasset. “He allowed he knew nothing of them; that I must be mistaken; this is not the place; I said no, this was the right place,” “Mr. Smith, storekeeper, Cincinnati.” “Sir, I have lived with Blannerhasset for three years.” Mr. Smith then took him up stairs, or he followed him up. He then made inquiries which tend strongly to prove that he was one of Burr’s confidants, and gives Peter Taylor the very information he had asked, and the very information of which he had just before declared his ignorance. The testimony of this man is admitted by every one to be worthy of the highest credit. I shall therefore leave to the gentleman from Virginia the rugged task of proving the innocence of Mr. Smith without impeaching Peter Taylor’s veracity.

That Mr. Smith should write a letter to Burr and direct it to Blannerhasset has been satisfactorily explained. But it is not easy to explain, nor has it been explained, by what means Burr could devise that the letter directed to Blannerhasset was a letter written to him, or contained a letter for him. The construction which this transaction, and the letters written by Mr. Smith and Burr to each other, have received from the gentleman from Massachusetts, is the only candid and rational construction of which they are susceptible.

The Senate have been cautioned not to lay much stress upon the testimony of Colonel James Taylor, not because he is unworthy of credit, but because he deposes to a conversation which has long since past, and because Dr. Sellman was present and heard no such expressions. Sir, I believe the deposition of Colonel James Taylor contains not only a perspicuous declaration of what he believed, but also a correct statement of facts; a correct statement of what he heard. His deposition, it is true, was made long after the conversation happened; but shortly after that event he reduced it to writing, and communicated it to the Secretary of State, and to that writing he referred when under examination before the Senate. He also swears he conversed with General Findley, and that his understanding of that conversation was the same. Compare the circumstances under which Colonel Taylor testifies, with those which attend Dr. Sellman’s deposition. If he was present at all, it does not appear that any circumstance whatever occurred to impress that conversation upon his mind—it does not appear that he ever thought of it afterwards, until he was called upon to depose, which was more than fifteen months subsequent to the conversation; but it does appear that Dr. Sellman has acted the part of a partisan of Mr. Smith’s. In truth, sir, there is not a single circumstance tending to confirm his statement of that conversation, in opposition to that of Colonel James Taylor.

I agree with the gentleman from Massachusetts, that it would be improper to declare a member of this body unworthy of his seat for the expression of mere speculative opinions; but the expression of these opinions, connected with other circumstances which preceded, and followed after it, amounts to very strong proof. We are called upon by the gentleman from Virginia, and also from Kentucky, to lay our fingers upon that particular part of the testimony which produces conviction in our minds, of the guilt of Mr. Smith. To this call, sir, I will observe that in all cases of circumstantial evidence, convictions are the result of a combination of circumstances; they are not produced by any one link in the chain of testimony, but by the whole chain taken together. If, sir, a conviction could not take place in a court of justice unless the jury could put their fingers upon the particular part of the testimony which established the guilt of the accused, it might happen that in nine cases out of ten the culprit would be acquitted.

My friend from Kentucky says, if John Smith has participated in Burr’s treasonable and unlawful projects, it must have been by performing some act or in concealing it—that he is not charged with having performed any act, and that therefore the charge must be founded on his concealment of what he knew. I will not say that Mr. Smith has been charged with enlisting troops for Aaron Burr; but, sir, I will say, that he has been guilty of an act very much like it—an enlistment of the strongest character—an engagement or an enlistment of his two sons to go with Aaron Burr—to march under his banner—subject to his control, under his absolute government, dependent upon him for their future prospects and station in life. And here, sir, I refer to the deposition of Mr. Smith himself. He swears, that Aaron Burr did at his second visit to Cincinnati, disclose his views of invading Mexico; and yet, sir, he engaged his sons in the enterprise.

But, sir, there is one point in the testimony, which of itself produces something like conviction on my mind, that Mr. S. was guilty of participating in Burr’s plans. And here, sir, I will refer to the deposition made by Mr. Smith, and that of A. D. Smith already referred to by the gentleman from Tennessee, for a different purpose. Mr. S. swears that he never communicated to his son the engagement with Burr until the day he returned from Marietta, and not till he had expressed a disinclination to co-operate with Colonel Burr’s object. This deposition was made on the 6th January, 1807, and by a deposition of A. D Smith of the same date, it appears he returned from Marietta on the 3d day of that month. It also appears in evidence, that for some time previous to this day, Mr. Smith had been in Kentucky, and that during that time A. D. Smith had become the bearer of a letter to Blannerhasset from Burr, and for that purpose had gone to Marietta and Belle Pre; and that the 3d of January was the day he met his father on his return. But A. D. Smith on the 13th August, at Richmond, swears, that he never received any overtures from Burr on that subject; yet he considered himself as engaged under him, for he says—“From the papers which daily teemed with the treason of Colonel Burr’s designs; the frequent solicitations, and injunctions of my father, to relinquish the idea of descending the Mississippi as an accomplice of Colonel Burr’s; and General Eaton’s deposition, alone induced me to abandon him and his projects.” Here, sir, the son declares he did not engage himself with Aaron Burr, yet he was engaged; he knew that he was engaged, and reluctantly broke that engagement. The father swears he engaged him; but that he never disclosed that engagement to him until he expressed his disinclination to go. From whom did A. D. Smith receive the knowledge of this engagement? The answer is too plain; from his father, and not communicated to him on his return from Marietta, but before he set out for that place; before the father set out for Kentucky; and a knowledge of this engagement is the only probable reason of his becoming the bearer of that letter. But, sir, there is another contradiction which ought to be noticed here. A. D. S. and his father met on his return from Marietta, and the frequent solicitations and injunctions of the father induced the son to abandon B.; yet the father swears he never disclosed the engagement he had made until the son had expressed a disinclination to go with B. This expression of Mr. S.’s is a contradiction in itself; but when compared with the declarations of the son, the contradiction is gross and palpable. How could he solicit and enjoin his son to violate an engagement which he knew nothing of? Sir, it is impossible to reconcile these contradictions. Upon this occasion my mind has received no bias whatever from the conversations and whispers alluded to by the gentleman from Kentucky. I have lived in a section of the country that has not felt the general impression made by the movements and enterprises of Aaron Burr. I have attended to nothing but the testimony. I have had no acquaintance with Mr. Smith; I entertain no prejudice against him. I should feel as much gratified as any member of this body, to be able, consistently with my duty, to vote for his retaining his seat. Sir, the feelings of this House have been addressed—an appeal has been made to the humanity of the Senate. We have a duty to discharge which is paramount to humanity; instead of resigning ourselves to our feelings, we ought to exercise our judgment, and do that which the public good imperiously requires. From a full examination of the evidence, I am constrained to say, that the conduct of Mr. Smith has been such as to render it highly improper for him to retain his seat in the highest council of the nation.

The question was now taken to agree to the resolution, and determined in the negative, two-thirds of the Senators present not concurring therein—yeas 19, nays 10, as follows:

Yeas.—Messrs. Adams, Anderson, Condit, Crawford, Franklin, Gaillard, Gilman, Gregg, Kitchel, Maclay, Mathewson, Milledge, Moore, Robinson, Smith of Maryland, Smith of Tennessee, Sumter, Tiffin and Turner.

Nays.—Messrs. Giles, Goodrich, Hillhouse, Howland, Pickering, Pope, Reed, Smith of New York, Thruston, and White.[54]

Monday, April 11.

Resolved, That the President of the Senate and the Speaker of the House of Representatives, be authorized to adjourn their respective Houses on Monday the twenty-fifth day of April instant.

Ordered, That the Secretary notify the House of Representatives accordingly.

Tuesday, April 12.

Removal of Federal Judges upon Address from Congress.

Mr. Adams stated that he, together with his colleague, were instructed by the Legislature of the State of Massachusetts, to use their best endeavors to procure such an amendment to the Constitution of the United States, as will empower the President of the United States to remove from office any of the judges of the courts of the United States, upon an address to him made for that purpose, by a majority of the House of Representatives, and two-thirds of the Senate, in Congress assembled.

On motion, by Mr. Adams,

Ordered, That the instructions be referred to the committee appointed the 25th of January last, on the subject of amendments to the constitution, to consider and report thereon.

Amendment of the Constitution—President by lot from among the Senators.

Mr. Hillhouse.—The situation of the United States at the time of the meeting of the Convention for forming the constitution, I well remember, and it will be recollected by every member of this Senate, to have been such as to excite the anxious solicitude of every considerate man in our country. External pressure being removed, the recommendations of Congress had ceased to have effect on the States. We were a nation without credit and without resources; or rather without the means of drawing them forth. Local policy began to operate in a manner that tended to excite jealousy and discontent among the States; and there was reason to fear that we were exposed, and at no remote period, to all the calamities of civil war. Under these circumstances, the present constitution was promulgated, and was eagerly seized on by the great body of the people, as the palladium of our liberties, and the bond of our Union. I was of the number of those who approved it, though some parts of it appeared to me mere theories in the science of Government, which I hoped in the experiment would prove salutary; but my expectations were not sanguine.

Before I proceed with my explanatory remarks, I must take the liberty of stating, that in using the terms monarchy, aristocracy, or democracy, I do not use them as the cant words of party; I use them in their fair, genuine sense. The terms Federalist and Republican, I do not use by way of commendation or reproach; but merely by way of description, as the first names of individuals, to distinguish them from others of the same family name.

Federalists and Republicans never divided upon the elementary principles of government. There are very few Americans who are not in principle attached to a free republican government; though they may differ on minor points, and about the best mode of organizing it. Persons attached to monarchy or aristocracy are few indeed; they are but as the dust in the balance. No one in his sober senses can believe it practicable, or politic if practicable, to introduce either. If ever introduced, which God forbid, it must be done at the point of the bayonet.

It is well known that the denominations of the parties, called Federalists and Republicans, were applied, the former to those who supported, the latter to those who opposed the two first Administrations formed under the Federal Constitution. Those who opposed those Administrations, wishing to obtain the governing power, and disliking the name of Anti-Federalists, given to the first opposers of the constitution, assumed the more popular name of Republicans. It cannot be expected that a politician, when he has made himself up for a political ball or masquerade, will exhibit his true character. Many of the most florid speeches are made more with an eye to the people, than to the body to which they are addressed. To find the true character of man, you must look to his homespun, everyday dress; if you do this, will you not find a full proportion of good Republicans, as they are called, who exhibit no more of that virtue called humility than their neighbors, and who manifest no greater regard for equal rights? The supposed differences are more imaginary than real. Names may, and sometimes do, deceive ignorant, uninformed individuals; but these names now scarcely do that.

Some of the important features of our constitution were borrowed from a model which did not very well suit our condition: I mean the Constitution and Government of England, a mixed monarchy, in which monarchy, aristocracy and democracy, are so combined as to form a check on each other. One important and indispensable requisite of such a Government is, that the two first branches should be hereditary, and that the Monarch should be the fountain of honor and source of power. In the United States, the people are the source of all power.

Placing in the hands of the Chief Magistrate, who depends on a popular election, prerogatives and powers in many respects equal, in some, exceeding in practice those exercised by the King of Great Britain, is one of the errors of the constitution. This error can be corrected only in one of two ways; either the office must be stripped of those high prerogatives and powers, and the term of holding the office shortened, or some other mode devised, than a popular election, for appointing a President: otherwise, our country must perpetually groan under the scourge of party rage and violence, and be continually exposed to that worst of all calamities, civil war.

I am aware I have engaged in a difficult undertaking. I have to oppose deep-rooted prejudices and long-established opinions, which will be abandoned with reluctance. I have to contradict favorite theories, long ago adopted, and still strenuously maintained. It is therefore to be expected that arguments which go to destroy the former, or contradict the latter, will be admitted with caution, and listened to with a reluctant ear. Some of the amendments, when first presented to my mind, made but a slight impression, and I was disposed to pass them by as impracticable or ineffectual; but experience and mature reflection have satisfied me both of their correctness and importance.

I am aware that the amendments will not be approved by many individuals in this nation, under an apprehension of their tending to lower the tone and energy of the Government. They will be denounced by all office hunters, demagogues, and men of inordinate ambition, more anxious for their own elevation to office than for the public good. All artful men, who rely more on their dexterity and skill in intrigue, than upon honest merit, to secure an election, will raise their voices and cry aloud against them. They will describe them as utopian and visionary; as departing from the elective principle; and as lowering the dignity and character of the Government. But the great body of the people, who compose that portion of the community which can have no views or interests incompatible with the general welfare, which can have no other wish or desire than to see the nation prosper, and which the feelings of nature would stimulate to do what would advance the prosperity and happiness of future generations, will, I flatter myself, lend a listening ear, and grant me a candid and patient hearing. I must also be permitted to indulge the hope, that, in this honorable body, the amendments will not be hastily rejected; nor until they shall have undergone an attentive and critical examination.

A prominent feature of the amendments is, to shorten the term of service of the President, Senators, and Representatives; observation and experience having convinced me, that in an elective Government, long terms of office and high compensations do not tend to make independent public servants, while they produce an anxious solicitude in the incumbents to keep their places; and render seekers of office more eager to obtain them, and more regardless of the means.

My first amendment goes to reduce the term of service of the members of the House of Representatives to one year.

No inconvenience can arise from this arrangement; because there is a constitutional provision that Congress shall assemble once in every year. That body, composed of the immediate representatives of the people, ought to exhibit a fair representation of their sentiments and will; and, coming fresh from the people to the Congress of each year, will, it may be presumed, fairly express such sentiments and will. And if, in an interval from one session of Congress to another, there be a real change of public sentiment, why should not that change be expressed? Will an attempt in their Representatives to resist it, tend to tranquillize the public mind? or will it not, like persecution in religion, tend to make proselytes to their sentiments?

Constitutions, except so far as they are necessary to organize the several departments of Government, and bring the public functionaries into a situation to deliberate and act; and, in the General Government, to draw the line of demarcation between that and the State governments, to prevent interference and collision, are of little avail; and present but feeble barriers against the public will. Whenever a measure is understood and believed to be necessary to promote the general welfare, the people will not fail to effect it. If they cannot, by construction, get round the constitution, they will, by an amendment, go directly to their object. Of the truth of this, experience has furnished ample proof. The danger is, that by attempting to extend constitutional restrictions too far, unnatural and mischievous exertions of power may be produced.

By the second amendment, the term of service of the Senators is to be reduced to three years; one-third to be chosen each year.

The Senate, I am aware, may be surprised, and perhaps feel some displeasure, that one of their own body should propose an amendment, which, in the estimation of some, may tend to lessen their dignity, and destroy their independence. Did I believe this, I should be the last to offer it. If the Senate will hear me patiently, I think I can show that it will produce no such effect.

Senators represent the rights and interests of States in respect to their sovereignty. In them, therefore, the States ought to feel a confidence. And this confidence will rather be increased than lessened by shortening the term of service to three years. Shall I be told that the Legislatures of the States are not to be relied on for their stability and patriotism? that it would be unsafe, every third year, to trust them with the appointment of their Senators? No, surely. The several States are the pillars on which the Constitution of the United States rests, and must rest. If these pillars are not sound, if they are composed of feeble, frail materials, then must the General Government moulder into ruin. This, however, is not my belief. I have confidence in the State Governments. I am for keeping them in their full vigor and strength. For if any disaster befalls the General Government, the States, having within their respective spheres all the power of independent Governments, will be the arks of safety to which the citizens can flee for protection from anarchy, and the horrid evils which follow its train. I have therefore uniformly been opposed to measures which had the remotest tendency to their consolidation.

When I shall have stated the next amendment, it will be found that my plan, instead of lessening the dignity and importance of Senators, will magnify their office, and make it the object of desire and laudable ambition to the best characters and greatest talents of our country; for, from the Senate I propose that the President of the United States shall always be taken; and in a manner that will exclude all cabal and undue influence in obtaining that high office—a mode in which the man of modest merit shall have an equal chance of success with the most daring and artful intriguer.

The third amendment provides for the appointment of a President. He is to be taken by lot from the Senate, and is to hold his office for one year.

This mode promises many advantages, and only two objections against it present themselves to my mind; one, that it is a departure from the elective principle; the other, that it will not always ensure the best talents. I should not have proposed this mode, if any other could have been devised, which would not convulse the whole body politic, set wide open the door to intrigue and cabal, and bring upon the nation incalculable evils; evils already felt, and growing more and more serious. Upon mature examination, those objections appear less formidable than at first view.

When Senators shall be chosen with an eye to this provision, every State will be anxious to make such a selection of persons as will not disgrace it in the eventual elevation of one of them to the Presidential chair. Every State Legislature would, in the choice of the Senator, consider itself as nominating a candidate for the Presidency. The effect of this arrangement would be, in reality, that, instead of the States appointing Electors to choose a President, the Legislatures themselves would become the Electors; with this advantage, that the nomination would be made when not under the influence of a Presidential electioneering fever. In the regular course of appointing Senators, only one nomination would be made at one time in each State; and in most cases, three years would elapse before he could be designated for the Presidency. The great caution in the selection of Senators, with a reference to that high office, would produce another excellent effect: it would ensure the continuance, in that body, of men of the most respectable talents and character—an object of the highest importance to the general welfare. In the mode directed by the constitution for choosing a President by the House of Representatives, there is almost as great a departure as in what I propose, from the pure elective principle; which requires perfect freedom of choice among all who are eligible; and that the ballot of each qualified voter shall have equal weight in making such choice. Whereas, by the constitution, the House are confined to three candidates, and must vote by States; so that a State having twenty-two members, has but one; and, consequently, no more weight than a State having only a single member. And those States whose members shall be equally divided, will have no vote. These circumstances considered, the present constitutional mode of choosing a President by the House of Representatives, when tested by the pure elective principle, may be deemed, as to the mode of choosing, and the object of the choice, as exceptionable as the appointment by lot; while it remains liable to all the evils of a contested election, from which the appointment by lot is wholly free.

In answer to the second objection, it may be fairly presumed that the Senate will always be composed of men possessed at least of decent talents. And such men, with honest views, long experience, and the aid of the Heads of Departments and other officers, would be able to do the public business correctly. It is not necessary, it is not desirable, that the President should command the armies in person; and all our foreign relations may be managed through the agency of able Ministers, whose appointments are to be approved both by the Senate and House of Representatives. The several Executives, ever since the adoption of the constitution, have been in the habit of calling to their aid a Cabinet Council, composed of the Heads of Departments; who ought to consist, as they probably will, of men of talents, integrity, and experience; and who, upon the plan proposed, being likely to continue long in office, will thereby give stability and system to the measures of Government.

If the appointment by lot will not always insure a President of the first rate talents, neither will the present mode of electing; for when party spirit runs high, and parties are nearly balanced, candidates will be set up, not for their talents, but because they are popular and can command votes. And there may be a possibility of having a President for four years, distinguished neither for talents nor integrity. A President appointed by lot will possess the advantage, and in practice it will be found a very great advantage, of coming into office free from party influence; which, under the present mode of electing, is seldom if ever to be expected; and it is to be feared that it will be too powerful to suffer even an honest man to do right.

Appointing a President by lot from the Senate, will give every State an equal and fair chance of participating in the dignity of that high office; will prevent the possibility of bargaining among the large States to the total exclusion of the middling and small States; and will thus remove one ground of State jealousy, which must inevitably grow out of our present mode. As it regards the sovereignty of the respective States, the appointment by lot is in exact conformity to the principles of the constitution; for in the event of an election of a President by the House of Representatives, each State has an equal vote, conformably with its equal rights as sovereign and independent; so that, in respect to peace and union, this mode of appointing a President would produce effects of great and lasting importance.

As the President is to be taken from the Senate, and, if worthy of the Senatorial office, must have experience, and be well informed of the affairs of the nation—and can also avail himself of the information and talents of every member of the Government—there can be no solid objection to reducing his term of service to one year. The President will always enter on his office at the close of the session of Congress; and during the recess have time to make himself more fully acquainted with the state of the nation, so as to present a proper view of it to the next Congress, as well as to conduct successfully the public business at the end of his term. No serious embarrassment or inconvenience, in conducting the public business, has been felt from the change of a President or the Head of a Department. There are and always must be subordinate officers around the Government, well acquainted with the routine of business; which will and must proceed in its usual course. If any example were necessary to show that no injury would arise to the nation from an annual appointment of a President, I might instance the ancient Republic of Rome—where, in the days of her greatest virtue, prosperity, and glory, her chief magistrates, or consuls, were chosen every year. But, being taken from the Senate, a body conversant with the management of their public affairs, as is our Senate, no evil accrued to the public.

The office of President is the only one in our Government clothed with such powers as might endanger liberty; and I am not without apprehension that, at some future period, they may be exerted to overthrow the liberties of our country. The change from four to ten years is small; the next step would be from ten years to life, and then to the nomination of a successor; from which the transition to an hereditary monarchy would almost follow of course. The exigencies of the country, the public safety, and the means of defence against foreign invasion, may place in the hands of an ambitious, daring President, an army, of which he would be the legitimate commander, and with which he might enforce his claim. This may not happen in my day; it probably will not; but I have children whom I love, and whom I expect to leave behind me, to share in the destinies of our common country. I cannot therefore feel indifferent to what may befall them and generations yet unborn.

I do not desire in the smallest degree to lessen the President’s power to do good; I only wish to place such salutary checks upon his power, as to prevent his doing harm. His power of nominating and appointing to office, and removing from office, will still be continued; with only the additional check of requiring the consent of the House of Representatives, in one case, and of the Senate and House in the other. All his other powers will remain the same as at present, and there will be but little danger of an abuse of those powers, if the term of Presidential office be reduced to one year, and the appointment be by lot: which will render it impossible to bring the high prerogatives of this office to aid in procuring it. An artful intriguer cannot then point to the various lucrative offices in the gift of the President, for the purpose of stimulating exertion in favor of his election: than which a more powerful engine could not have been devised.

Of the impropriety and impolicy of the present mode of electing a President, can there be stronger proof, can there be a more convincing evidence, than is now exhibiting in the United States? In whatever direction we turn our eyes, we behold the people arranging themselves under the banners of different candidates, for the purpose of commencing the electioneering campaign for the next President and Vice President. All the passions and feelings of the human heart are brought into the most active operation. The electioneering spirit finds its way to every fireside; pervades our domestic circles; and threatens to destroy the enjoyment of social harmony. The seeds of discord will be sown in families, among friends, and throughout the whole community. In saying this, I do not mean any thing to the disadvantage of either of the candidates. They may have no agency in the business; they may be the involuntary objects of such competition, without the power of directing or controlling the storm. The fault is in the mode of election; in setting the people to choose a King. In fact, a popular election, and the exercise of such powers and prerogatives as are by the constitution vested in the President, are incompatible. The evil is increasing, and will increase, until it shall terminate in civil war and despotism. The people, suffering under the scourge of party feuds and factions, and finding no refuge under the State, any more than in the General Government, from party persecution and oppression, may become impatient, and submit to the first tyrant who can protect them against the thousand tyrants.

I have dwelt so long on this amendment, because of the novelty, in this country, of appointing a Chief Magistrate by lot. The facility of appointing by lot was obvious; but it seemed necessary to exhibit, and to demonstrate the many and highly important advantages which will arise from this mode of appointing a President of the United States. The principal of these I will now present in one short view:

1st. It will make the Senate more respectable.

2d. It is prompt and certain.

3d. It will avoid the evils of a disputed election, now unprovided for in the constitution.

4th. It will exclude intrigue and cabal.

5th. It gives talent and modest merit an equal chance.

6th. It is economical.

7th. It gives to the people a President of the United States, and not the chief of a party.

8th. It removes temptation to use power otherwise than for public good.

9th. It will annihilate a general party pervading the whole United States.

10th. It will remove a direct, powerful, and dangerous influence of the General Government on the individual States.