The PRESIDENT _of the United States_.
The Message and papers were read, and ordered to lie for consideration.
FRIDAY, April 1.
_Case of John Smith._
This being the day assigned for hearing counsel, the PRESIDENT said the
Senate were ready to hear the counsel of JOHN SMITH, in any thing they
had to offer why the resolution (for expelling him) should not be adopted.
Mr. ADAMS submitted it to the Senate, whether it was not most proper that
the counsel should be permitted to show cause why the report should not
be adopted. He remarked that in like cases the whole report, comprising
the grounds on which the final resolution was founded, had been the
subject of discussion, and of approbation or rejection. He considered
this the correct course, that the world and posterity might know the
grounds on which the Senate acted.
A short conversation ensued on this suggestion of Mr. ADAMS, in which
the principles of the report were incidentally noticed. In reply to
Mr. ADAMS’ remarks, it was said that it could not be expected that a
deliberative body, however agreed in the guilt or innocence of the
accused, would be able to unite in their agreement to a complicated
report, embracing a variety of abstract and disputable principles.
Mr. GILES intimated the idea that this discussion was premature; that, as
the Senate had by their vote determined to hear counsel on the report, it
was proper that this course should, in the present stage of the business,
be pursued. After having heard counsel, it would be for the Senate, as
they then should see fit, either to decide on the resolution alone, or on
the report connected with it.
This suggestion having been acquiesced in, without any vote,
Mr. FRANCIS S. KEY, of counsel for Mr. SMITH, asked for subpœnas for
Messrs. DAVENPORT, MORROW, and STURGES, of the House of Representatives,
to attest the credibility of witnesses; and likewise for a subpœna for
General Wilkinson.
It was intimated that the usual mode of proceeding in such a case was to
request the attendance of the members of the other House.
Mr. KEY then opened the defence by a few very concise preliminary
remarks. He observed that the counsel of Mr. SMITH felt highly gratified
in appearing before the Senate with a body of testimony sufficiently
strong to flatter them with the assurance of a favorable result; that all
the apprehensions which had arisen from the distance and the extent of
the testimony were almost removed; and that although testimony was still
coming in, they were fully satisfied with that they had already received.
He said they would be able to show that the testimony of Elias Glover was
not worthy of credit. He admitted that if this testimony were correct,
JOHN SMITH was unworthy of his seat; but they would be able entirely to
destroy its weight by destroying his credibility. They would, likewise,
be able to show that there was nothing else in the other testimony which
materially affected the character of the accused. They would also, after
this, enter into a consideration of the principles on which a decision in
this case ought to be made; and endeavor to show that that decision could
only be made according to legal evidence; that the Senate were bound by
judicial principles, and that the accused was consequently entitled to
the same privileges as he would be in a court of justice.
Mr. KEY said he should first proceed to offer depositions to discredit
Elias Glover. He would show that he had not only made charges, which
were contradicted by respectable testimony, but likewise by his own
declarations at other times. He would commence with the proof of his
general character, and show that it had been such, ever since he entered
into life, as to destroy the weight of his testimony; he would show
that he had in several instances perjured himself. He would then show
his inducements to perjure himself in this case, by establishing the
existence of a combination, of which he was the head, to ruin Mr. SMITH.
Mr. KEY was about to read sundry depositions taken at Newtown,
Connecticut. Previous to this he read the certificates of notice given by
Mr. SMITH to Mr. Glover, of his purpose to take depositions relative to
his character. From these it appeared that Mr. SMITH had, on the 10th of
February, notified him of his intention to take depositions at Delhi, New
York, on the 15th February, at Newtown, Connecticut, on the 20th, in the
Mississippi Territory on the 25th, at Cincinnati the ----
Mr. CRAWFORD objected to reading these depositions. He observed that
they went seriously to affect the character of Mr. Glover; that the
Senate had, in such a case, prescribed that the depositions should only
be received in case of reasonable notice having been given to the person
whose character it was intended to discredit: that in this case no such
reasonable notice had been allowed; that the notice was too short to be
of the least use to Mr. Glover.
Mr. HARPER, of counsel for Mr. SMITH, observed that as much time had
been given by Mr. SMITH as he could possibly spare. The times fixed for
taking depositions at the several places, had been as distant as they
could be, consistently with Mr. SMITH’s getting the testimony forwarded
to the seat of Government by the 1st of March; the period then fixed by
the Senate for his hearing.
Mr. S. SMITH stated that, although the resolution fixing the 1st of March
for a hearing had passed on the 20th of January, the notices of Mr. SMITH
were not dated till the 10th of February, at Berrysville, in Virginia,
where he had put them into the post office.
A short debate followed, in which the principal circumstances noticed
were, that according to Mr. SMITH’s affidavit, on which the first
postponement had taken place, it was not expected that depositions
to discredit Elias Glover’s would be taken at any other place than
Cincinnati; that, if these depositions, though informal, were read, they
would be taken by the Senate only for what they were worth, and that, if
ex parte evidence was received in favor of Mr. SMITH, it could not be
rejected when against him.
On reading the depositions, seventeen members being a majority, rose in
the affirmative.
The counsel then read the depositions of Calvin Chamberlain, Henry Peck,
jun., Ely Perry, William Meeker, Daniel Wheeler, John Norfrog, Luther
Bulkley, Zalmon Tousy, jun., Cyrus Sprindle, James Nicholls, Solomon
Booth, Oliver Tousy, Gideon Fisher, Stephen Beers, jun., N. Hays, Joseph
Michin, Solomon M. Sackriden, James Monger, Homer R. Phelps, Joshua H.
Brent, Gabriel North, John T. Moore, Philip Gabehart, Cyrenus Foote,
Roswell Hodgkiss, Benijah Beardley, E. K. Granger, Henry Tyler, John B.
Judson, Samuel Stephen, George Fost, Asa Tyler, Nathan T. Tyler, John S.
Gano, Francis Dunlavy, John Sellman, Stephen Macfarland, George Gordon,
Edward H. Stall, Thomas N. Still.
These depositions are made by persons residing in the States of
Connecticut, New York, and Ohio.
About four o’clock the Senate adjourned.
TUESDAY, April 5.
Mr. ANDERSON, from the committee to whom was referred the bill making
provision for the disposal of the public lands of the United States in
the State of Tennessee, reported it with further amendments; which were
read for consideration.
_Case of John Smith._
The Senate resumed the consideration of the first report of the committee
appointed to inquire into the conduct of JOHN SMITH, a Senator from the
State of Ohio, as an alleged associate of Aaron Burr.
Mr. SMITH attended, together with Messrs. Harper and Key, counsel on his
behalf.
Mr. HARPER read the depositions of Joseph H. Brett, John T. Moore,
Gabriel North, Erastus Root, C. Keiser, Isaac G. Burnett, David Zeigler,
John Bradford, Jacob Broadwell, Jos. Van Horne, Samuel Hildige, Geo.
Williamson, M. Williams, and William Goforth. Messrs. Van. Rensselaer,
Jeremiah Morrow, Tallmadge, Bacon, and Davenport, of the House of
Representatives, and Mr. Tiffin, of the Senate, were then examined, and
attested to the general respectability of character of several of the
witnesses from whom depositions had been received on the part of Mr.
SMITH.
Mr. KEY then rose to show why the report of the committee should not be
adopted, and after taking a legal view of the rules of evidence which
should govern the admissibility of evidence in this inquiry, and arguing
that the Senate could inquire into nothing which was indictable at common
law, he proceeded to the facts of the case, and said:
Having now, sir, stated these objections against the present inquiry,
and more particularly and more earnestly against the principles which
the honorable committee have recommended to govern it, I gladly proceed
to discharge the remaining part of my duty, by submitting a few remarks
upon the testimony exhibited upon this occasion. It will be readily
admitted that, excepting Elias Glover, no witness deposes directly and
positively to the guilt of the honorable member accused. Their testimony
is wholly circumstantial, and I hope to be enabled to show, that from
no circumstance they state can guilt be fairly inferred. But the chief
question to be ascertained, the point on which this inquiry will be found
wholly to turn, is the degree of credit which is to be given to the
testimony of Elias Glover. I am much gratified, sir, in recollecting the
importance attached to the evidence of this witness in the commencement
of this proceeding, and the almost universal acknowledgment that Mr.
Smith’s fate depended upon the truth or falsehood of his testimony. We
are most willing to rest it upon this issue; we could not ask a more
favorable one than that which compels every man before he can believe
in the guilt of the accused, to the necessity of first believing in the
truth of Elias Glover, and this I now proceed to show is impossible.
The first question asked on these occasions, is, “What is the general
character of the witness?” We have traced this person, sir, from his
first setting out in life, have followed him into every place where he
has lived, and put this question to his neighbors. How is it answered?
At Newtown, Connecticut, where he first established himself, thirteen
deponents declare him unworthy of credit; with some slight difference
of expression, this is clearly and positively affirmed by them all.
One of them, however, (Mr. Oliver Tousy, I believe,) states that he
made particular inquiries of almost all the respectable persons in and
about Newtown, and that he inquired of none but respectable persons;
that, from the result of these inquiries, he is induced to believe that
was a respectable jury taken from Newtown and Elias Glover sworn as a
witness before them he would not be believed. It seems, sir, that he
soon changed so disagreeable a situation. We next hear of him at Delhi,
in Delaware County, New York. From this place, sir, we have produced to
you the depositions of twenty-one witnesses, who all concur in a similar
opinion of his infamy, using, if possible, still stronger language than
the witnesses from Newtown. By what means can a character thus charged
be defended? Can it be said that these men are selected, and are his
enemies? They swear they are not. That they are not themselves credible?
Many of them were, fortunately, known to the honorable members of the
other House, who have told you they are respectable. Among them are
the chief judge and the associates, and the sheriff of the county in
which he practised, of whom one is now a Senator of New York, and two
of the others members of Assembly; nor can such testimony be outweighed
by that which his father and his uncle have collected in support of
his character. There are few men so infamous but that some persons
may be always found to declare a good opinion of them, and what sort
of persons these are who have said they never heard any thing against
the reputation of Elias Glover, it may not be difficult to ascertain.
Upon this subject, it is only necessary to call the attention of the
Senate to the manner in which those depositions in New York are proved
to have been taken by his uncle, David Beers, who is himself one of the
deponents. Ezekiel K. Granger states that this man used every expedient
to prevent the attendance of Mr. Smith’s attorney; that he refused to
examine any witness in his presence, and that nearly half of whom he
did procure to depose, are the relations of Glover; a circumstance
on which the deponents are entirely silent. In addition to this, he
is proved by one of those persons to have altered and misstated his
testimony. Surely his character is very far from receiving any support
from depositions thus taken. We have also produced a record from Delaware
County court, which, though it may not prove him guilty of forgery, yet
contains evidence charging him with an act almost equally dishonorable.
From this accumulating weight of disgrace, thus increasing with his
progress in depravity, he again finds it necessary to escape, and
wisely determines to fix upon a still more distant residence. The last
two or three years of his life have been spent in the State of Ohio,
and, during that period, I shall be able to show that he has reached a
height of profligacy even beyond the promise of his former years. The
numerous witnesses from Cincinnati, though not particularly questioned
as to his general character, (being examined to impeach his credit on
other grounds,) yet show the degree of estimation in which he is there
held; and thus, sir, we flatter ourselves with having produced the most
ample proof that truth is not to be expected from this witness; that he
would not shrink from perjury, when prompted to accomplish a favorite
object. That such an object was presented to him on this occasion; that
the inducements to his crime were considerable, is obvious. We are
informed by many of the deponents from Cincinnati, particularly by Mr.
Burnett and Mr. St. Clair, that he had long felt and evinced the most
malignant animosity towards Mr. Smith. The existence of this disposition
in himself, and others associated with him in the same dishonorable
cause, is further evidenced by the base and unmanly means they have used
during this inquiry. I allude, sir, to their refusal to give evidence for
Mr. Smith, and then secretly sending their depositions to the Senate;
conduct in every respect worthy of the friends of Elias Glover; and
also to those anonymous slanders which have been forwarded (doubtless
from the same source) to almost every honorable member of this House.
Of these deponents, and the support their testimony attempts to give
to the character of Glover, little need be said. I cannot suppose it
possible the Senate will receive this evidence, or, if received, that
any reliance will be placed upon it. The profligacy, however, of the
principal one among them is so palpable and audacious that it deserves
some little notice; I mean William McFarland, the friend to whom Elias
Glover alludes as having been present when Mr. Smith acknowledged his
participation in the conspiracy. This man, sir, has had the effrontery
(after refusing to answer Mr. Smith’s interrogatories) to send on to the
Senate an affidavit in which he states that Elias Glover’s deposition is
substantially correct; yet he had been sworn at Richmond, and we have his
affidavit, and again at Chilicothe before the grand jury, and we have a
statement of his evidence. They afford the most direct contradiction of
his present deposition that can be conceived. Unless Mr. McFarland then
will condescend to tell us, how are we to ascertain which is true and
which is false? As it now stands we have, in addition to his declarations
to General Gano and Mr. Burnett, one or two of his depositions acquitting
Mr. Smith, to set off against the one which accuses him. Of the
other deponents I shall say no more than what appears from their own
representation, (and nothing more harsh could well be said of them,) they
are the friends of William McFarland and Elias Glover. To have obtained
the enmity of men disgraced by such a friendship is no small honor to Mr.
Smith.
However conclusive this proof of the general character of this witness
may appear, it yet constitutes but a small part of the infamy with which
we have overwhelmed him. We have shown this capacity for perjury, and
the disposition he must have felt to exert it on this occasion. I now
proceed to point out the actual commission of it, in the most wilful,
premeditated, and repeated instances. This witness, it seems, appeared
before a grand jury at Chilicothe, in January last, which body had the
penetration to discern his falsehoods, though no testimony was produced
to discredit him. One of the jurors, Mr. Ethan Stone, has stated to us
in his deposition the substance of his examination on that occasion,
from his notes, which he tells us he was very particular in taking. His
statement is also corroborated by General Gano and Colonel Armstrong, who
were members of the same jury. We are thus informed that Elias Glover
on that occasion declared “that he had never published or offered for
publication any piece in ridicule of the measures taken by Government
to arrest the progress of Burr’s conspiracy.” Of the falsehood of this
assertion we have produced the most undeniable evidence.
The editor of the Western Spy, David L. Carney, deposes that Glover
brought him such a piece which he refused to publish. Ephraim Morgan
swears that he was present at the time, and confirms this statement. If
Mr. Glover is disposed to dispute the point with these two witnesses, we
will call a third, to whom, however objectionable, he must submit. This
is no other than himself. He told Mr. Arthur St. Clair (as that gentleman
states in his deposition) that “he had published one piece, ridiculing
the measures taken to stop Burr, and had written another (which he
offered to show him) which the printers had refused to publish.” He again
told the same to Mr. Jacob Burnett, and urged him to join in squibbing
the measures of Government. Can anything be more complete and confounding
than this detection? Let us view another instance. The same grand juryman
informs us that during his examination he declared, “that he never had
any correspondence with Colonel Burr;” these are the words taken from Mr.
Stone’s notes. And yet he tells Captain Nicholls, whose deposition we
have produced, that he had written to Burr, and that he daily expected to
hear from him. In addition to this, the testimony of Mr. George Russell
is before the Senate, who is personally known to several of the honorable
members of this House, who declares that Glover actually gave him a
letter to carry to Colonel Burr, with injunctions to burn it if he did
not see him.
I might, sir, point out other instances of falsehoods equally gross,
but it cannot be necessary to take a particular notice of each. I shall
therefore only call the attention of the Senate to a circumstance which
exhibits a number of them in one general point of view. He appears
from his own testimony to have been the person who furnished Matthew
Nimmo with his information relative to Mr. Smith’s participation in
the conspiracy. Now, the information he gave Nimmo should certainly
agree with that which he now gives us in his deposition. Yet they are
essentially different, nay, even directly contradictory, as is obvious
from comparing them.
But, sir, independent of all these circumstances, I would ask nothing
more to discredit the witness than the internal evidence of falsehood
which his deposition bears. What can be more incredible than the facts
he states? Mr. Smith is an associate in Burr’s conspiracy, and yet
never commits an act which evinces the least participation in it, never
affords it the least support, never endeavors to interest his friends and
dependents in it, but would have remained wholly unknown and unsuspected
but for his disclosure to Elias Glover; and this confidant, whom he thus
highly trusts, was at that very moment, and before and afterwards, his
open and irreconcilable enemy.
He further tells us that he received this communication “under the
strictest injunctions of secrecy; that to divulge it on any occasion less
pregnant with evil would reflect infamy and disgrace upon his character
and conduct, and that he therefore balanced between his honor and his
patriotism, before he could divulge it.” Now, can Mr. Glover reasonably
expect any one to believe this? And if we were thus to indulge him, how
much reputation would he save by it? Does a man of character ever allow
any circumstances, however “pregnant with evil,” to induce him to receive
a communication, promise to conceal it, and then divulge it? Where, sir,
does he find a sanction for a doctrine so absurd and detestable? Does
that sacred volume which he has dared to profane with his touch, and
thus openly contemns, allow any such dispensation from the eternal and
immutable laws which it awfully commands us on all occasions to observe?
Is any such ridiculous exception to be there found, which shall justify a
man in violating the plainest rule of morality and becoming a scoundrel
for the good of his country? But even if this pretext could account for
his disclosure to Nimmo, in November, it can be no pretence for his
afterwards voluntarily and certainly unnecessarily reducing it to an
affidavit in February. Some delay in making out this deposition might
be necessary, from the nice balance which he tells us he was adjusting.
With his honor in one scale and his patriotism in the other, it is not
wonderful that it should take him a month or two to ascertain which of
these two straws was the heaviest; but it is singular that his patriotism
should not preponderate till all symptoms of danger to his country had
disappeared--till the conspiracy was completely defeated.
There are, sir, two other depositions relative to the credit of this
witness which I had intended to notice. Mr. Longworth details to us a
conversation held between him and Glover, early in February, and just
after he had made his affidavit. Glover then told him that he had not
“acted against Mr. Smith;” that “he thought him unjustly accused,” and
believed “he had no share in the conspiracy.” In the April following, Dr.
Lanier’s deposition informs us of an interview (at which he was present)
between Mr. Smith and Glover. How strongly marked is the conduct of
each on that occasion. In Mr. Smith we see the firmness of an innocent
man, indignantly daring forth his slanderer, and in the other a soul as
contemptible for its meanness as detestable for its vices, descending (if
indeed such a creature can properly be said to descend to any thing) to
the grossest falsehoods and most humiliating prevarications.
I have done, sir, with this witness. I fear I have detained the Senate
unreasonably upon this subject. I therefore leave him to that contempt
which I trust he will meet with here, and to that punishment which public
justice will hereafter inflict upon him. For should he escape from this,
I have no doubt it will be owing more to his own agility than to the
crippled condition of our courts. Nor shall I have much apprehensions
of his acquittal, even if he is allowed to plead that “he is possibly
innocent.”
I now proceed to make a few hasty observations upon the circumstantial
testimony offered by other witnesses in support of this accusation, and
first by Peter Taylor. The circumstances principally relied on in the
statement of this witness is the conversation which he details between
Mr. Smith and himself, and particularly the charge which Mr. Smith, he
says, gave him “not to go to a tavern, lest the people should sift him
with questions.” Admitting this conversation to be correctly repeated,
nothing can be more unfair and unreasonable than to infer from it that
Mr. Smith was concerned in the conspiracy, or even acquainted with its
object. May it not be more properly attributed to his knowledge of the
public agitation, which Mr. Burr’s movements had excited, his belief that
they were innocent, and his apprehensions that this agitation might be
dangerously increased by Peter Taylor’s representation and exaggerations
of Mrs. Blannerhasset’s alarm. There are various other motives equally
pure to which this direction might have been owing, and it would
therefore be unjust to attribute them to a criminal one. It could not
have arisen from any fears in Mr. Smith that this man would disclose any
of the plans of the conspirators. He had himself already “sifted him with
questions” and could learn nothing, and therefore could not have supposed
that others would be more successful.
But, sir, this admission is fully as unreasonable as the conclusion
attempted to be drawn from it. We do not impeach the character of
Peter Taylor; we do not say that he has wilfully misrepresented this
conversation, but we deny him that degree of intelligence, recollection,
and accuracy, so essential to a witness who is to repeat a conversation
with necessary correctness. Can this honorable House infer guilt from
words, without very strong evidence that they are accurately related? The
least variation, the suppression or addition of a syllable, may make the
most material difference. May he not have misunderstood Mr. Smith? May
he not have forgotten parts of the conversation, and be indistinct and
confused in his recollection of it? We have, sir, among these depositions
a most remarkable instance, in which two gentlemen, both respectable and
intelligent, undertake to detail to us the particulars of one of Mr.
Smith’s conversations, (I mean Col. Taylor and Dr. Sellman,) and their
statements are directly contradictory. Let us now look for a moment at
the deposition of this witness, and see whether it bears those marks
of accuracy which should entitle him to attention. Besides that gross
stupidity so observable in every sentence of it, there are several of
the most palpable misstatements contained in it. First he tells us that
Dudley Woodbridge was on the bank of the river when the boats left
the island, after midnight, and yet that person and the man who slept
with him, depose that he was not out of bed after 10 o’clock. Again he
states, in his last deposition, that when he went to Mr. Smith’s they
had never seen each other before, and yet on his examination at Richmond
he had stated that Mr. Smith knew him; and this strange contradiction
is made, although the statement of his former evidence, in the Richmond
Enquirer, was but the moment before read over to him, and acknowledged
to be correct. There is one other remarkable instance, which shows
that he cannot even remember with any tolerable distinctness his own
conversations. On the statement of his evidence at Richmond he tells us
that when Blannerhasset and himself were returning to the island, after
he had left Mr. Smith’s, he was urged by him to accompany him in this
expedition, that he refused all the honors offered him, unless he should
be permitted to take his wife with him. Now, sir, he could have said no
such thing to Blannerhasset, for his wife had been dead for a month or
two; he himself admits in his subsequent deposition that she died in
September, and this conversation took place late in October or early in
November following.
It is totally immaterial to what cause these palpable misstatements are
to be attributed; they essentially affect his accuracy as a witness, and
show how little reliance is to be placed on this part of the evidence.
There are various other circumstances which have been collected by the
malignant industry of Mr. Smith’s enemies, in that strict scrutiny
to which all his actions have been subjected, and these have been
exaggerated and distorted till they were made to bear some suspicious
appearances. Of these it can be necessary to say but little. I rejoice
that Mr. Smith has been enabled to present so complete and satisfactory
an explanation of them. Of his entertaining Colonel Burr at his house I
shall say nothing, since if that fact merited consideration, it would
equally criminate most of the respectable people in Cincinnati, and
particularly Colonel Taylor himself, who informed us that he waited on
Colonel Burr and invited him to dinner.
But it is said he corresponded with Colonel Burr; true, sir, but in
what manner? Not in cipher, as it is well known the associates in this
project made their communications to each other; or in any secret manner
whatever. Mr. Smith immediately and publicly speaks of it. We have
offered the depositions of many of the first characters in that country,
to whom Mr. Smith showed these letters just after they were written;
of one particularly who was present when he received Colonel Burr’s
answer from the post office, and to whom he instantly handed it. We have
produced to you these two letters and they contain nothing criminal;
nothing but what persons in their situation and with their views might
be supposed to have written. Nor can there be the least pretence for
supposing they were fabricated for the purpose of removing suspicions.
For at the time they were shown by Mr. Smith he was suspected by nobody,
nor had he any reason to suppose he ever should be.
He has been also charged with receiving and forwarding despatches from
Blannerhasset to Burr. This circumstance is mentioned by Col. Taylor, as
one which operated to Mr. Smith’s disadvantage. Now, sir, he has shown
the nature of these despatches by the depositions of persons who were
requested to convey them, and by others who saw them opened, and by many
to whom Mr. Smith openly spoke of them. They contained a silk coat and a
note from Blannerhasset requesting him to forward it to Mr. Burr.
Equally unreasonable were the conjectures formed from his having accepted
and paid a draught of Colonel Burr’s. To this circumstance we have
offered every explanation of which it was susceptible. We have proved
by various depositions that it is usual for persons travelling in that
country to deposit their money in safe hands and afterwards draw for
it, and we have clearly shown that this draught must have originated
in that manner from Mr. Smith’s mentioning it at the time. General
Carberry informs us that about the time of Colonel Burr’s departure,
Mr. S. told him that he had left in his care a part of his baggage and
a sum of money. All these circumstances, Mr. S., if guilty, would have
endeavored to conceal; and yet it appears that the first information of
them, and that too immediately on their occurring, is uniformly derived
from himself. Neither can his guilt be inferred from his son’s being the
bearer of a letter to Blannerhasset’s island, even if it were admitted
(of which, however, there is not the least shadow of proof) that he knew
the contents of the letter he carried. Mr. Smith has proved that he was
then, and had been for some time, absent from home, and that he expressed
strong disapprobation of his son’s imprudence upon his return.
Another incident in this string of vague possibilities is his happening
to go to Frankfort at a time when Colonel Burr was there. He has
explained the motives of this journey. Mr. Kelly, Mr. Hart, and several
other gentlemen depose to the business which occasioned it.
His absence from the United States at the time the indictment was found
against him, is, I understand, also relied upon. If this indeed appeared
to have been owing to any desire to avoid an investigation into his
conduct, if he had sought to remain within the Spanish territory, and had
been unwillingly brought forward to answer this charge, it would indeed
have been a circumstance amounting to proof infinitely stronger than
all which this inquiry has produced. But if his conduct was directly the
reverse of this; if he was carried there by important and indispensable
engagements; if, when there, informed of the indictment, he immediately
relinquished his business, and took the most prompt and decided steps to
return and face the prosecution, and did so return, (of all which he has
produced the most conclusive evidence;) then, sir, this circumstance not
only ceases to afford any presumption of guilt, but clearly evinces his
innocence.
Having now, sir, endeavored to show the futility of the testimony
adduced to support this charge, it might be sufficient here to rest
our defence of the honorable member accused. But, sir, though more may
be unnecessary, I rejoice that more is in our power; that we have been
enabled not only to destroy the force of the proof offered to criminate
him, but to exhibit the most complete and direct evidence of his
innocence. I am sensible, sir, that I have trespassed greatly upon the
indulgence of this honorable Senate. I shall not, therefore, take that
view of this part of the case which its importance deserves; but will
only beg leave to suggest a few considerations which appear to my mind
unanswerable, which will render all doubt upon this subject (if indeed a
doubt yet remains) utterly impossible.
In the first place, to what but his innocence can it be attributed that
such numbers of the conspirators knew nothing of his association with
them? We have produced the depositions of several who appear to admit
that they had been induced to participate in this enterprise, and they
declare their ignorance and disbelief that Mr. Smith was in any way
concerned in it. Nay, sir, let us look at the declarations of their
chief, Colonel Burr himself. He has various communications with persons
whom he was desirous to bring over to his views, many of which are
detailed to us in the report of the evidence at Richmond. In these he
makes the most flattering representations of his prospects, endeavors
to show the adequacy of his means, the number and consequence of his
adherents. Among these he never mentions Mr. Smith, though there was no
man, in the whole Western country, the importance of whose co-operation
would have been more obvious. Here is one striking instance of this,
which I beg leave to mention. Lieutenant Jackson deposes that when
Colonel Burr gave him the draught on Mr. Smith, he directed him to call
on General Tupper, to whom he referred him for information relative
to the objects of the enterprise. Now, sir, if Colonel Burr had known
Mr. Smith as one of his associates, why should he have been silent on
this occasion; why should he not have allowed Mr. Jackson to get his
information from Mr. Smith, when he presented his draught, without
proceeding to General Tupper?
All the other conspirators seem equally ignorant of Mr. Smith’s
participation. When Bollman and Swartwout communicated with General
Wilkinson, in the most unreserved manner, they seem to know nothing of
it; they give him no intimation that the army contractor, the very man
who was supplying his troops with provisions, had any connexion with
their schemes.
Let us even descend to Glover and McFarland; that these men were engaged
in this expedition, after the proofs we have produced, cannot be
questioned. And what are they able to say to criminate Mr. Smith?
If they were all living in the same place, associates in the same
conspiracy, is it possible they would not have had frequent interviews?
Would they not have had it in their power to produce some act, or
at least some avowal to others, by which his guilt could be proved,
beyond the possibility of denial? Yet we hear Mr. McFarland frequently
acknowledging and twice even swearing that he knew nothing of Mr. Smith’s
connexion with it; and all that their malignant efforts have enabled
them to collect, is one solitary conversation depending wholly upon the
unsupported assertion of Elias Glover.
Thus, sir, it appears that if Mr. Smith was a party in this conspiracy,
the persons from whom he most studiously concealed it were those who were
associated in the same project. Neither are they more fortunate who were
particularly engaged in watching the progress of this enterprise and
ascertaining who were its partisans. General Gano states that he used
various means to determine whether the reports relative to Mr. Smith
were well founded, and he satisfied himself of his innocence. He also
directed Major Riddle to assist this inquiry; that officer reported to
him that he had frequent conversations with Mr. Smith, and had endeavored
to ascertain whether he knew anything of Burr’s plans, and was convinced
that he did not. Even Colonel Taylor, with whom these suspicions were
strengthened by the conversation relative to a disunion, which he
thought he had heard from Mr. Smith, was yet so far from discovering any
thing to confirm them in his inquiries, that he calls on Mr. Smith to
aid him in procuring information, and frequently declares (as General
Carberry’s deposition informs us) that he did not believe Mr. Smith was
an accomplice.
In the next place, sir, how can Mr. Smith’s guilt be in any manner
reconciled with his conduct in opposing the progress of the expedition.
Major Martin, Dr. Stall, General Gano, Mr. Totten, and numerous other
witnesses, prove that it was principally owing to Mr. Smith’s exertions
that any effectual support was rendered to the measures of Government.
When the President’s proclamation was received at Cincinnati, it seems
there was no means of arming the militia. The orders to the keepers of
the arsenal, to deliver out the public arms, had been neglected, and
he persisted in refusing to deliver them without. At this juncture
Mr. Smith, with that earnestness and decision which so strongly mark
his character, crosses the river at midnight, offers his bond to Major
Martin, in the penalty of $10,000, to indemnify him; procures the arms,
and delivers them to the officers; prepares barracks and supplies for
the militia; furnishes one of his own boats, and in short makes every
arrangement to obstruct the passage of the expected armament.
It may perhaps, sir, be here objected, that these circumstances rather
prove that Mr. Smith then abandoned the enterprise than that he never
participated in it. That the vigilant measures taken by Government
alarmed him, and that therefore, hopeless of its success, he sought by a
zealous opposition to escape detection. However plausible this may seem,
the least reflection will show how unreasonable is this suspicion.
How does it appear that the situation of the conspirators was at this
time more unpromising than at any former period? They had thus far
proceeded without meeting any obstacles; their plans were arranged and
ripe for execution; they were hourly expected to embark. And what was
there so alarming in the measures taken to oppose them as to strike
a panic into Mr. Smith and subvert his resolutions? The militia were
called out it is true, but they were without arms. Their officers
inform us that they could not even station a guard upon the river. I
should rather suppose that this circumstance would have been considered
as more auspicious than any thing he could have expected. Nor does it
appear that this effect was produced in the minds of any of the party.
For even at a subsequent period, and after the militia, by Mr. Smith’s
exertions, had procured arms, we find Captain Nicholls at Cincinnati
still adhering to their views and far from despairing. Nay, even Elias
Glover, (whose courage appears from Dr. Lanier’s deposition to be about
equal to his veracity,) and who doubtless was as ready as any one to
renounce his associates when he saw them sinking, is seen at the same
period persisting in his adherence to them. He tells Captain Nicholls to
hasten his departure lest the guard should stop his boats, declares that
he will shortly follow, and informs him that he had sent off an express
to the party at the island. There is one other circumstance that totally
overthrows this suspicion. If Mr. Smith had thus not only deserted but
opposed his associates, would it not have excited their resentment? And
would they not have revenged themselves for his treachery by disclosing
his participation, and showing that he was equally guilty with themselves?
It cannot be necessary to contrast this conduct with that which we might
expect to find in Mr. Smith, if, most unfortunately for his country
and for himself, he had really been concerned in this enterprise. It
is well known that the circumstance which first excited the suspicion
of Government were the unusual preparations made by Colonel Burr and
his party on the Western waters. From these suspicions they would have
been perfectly secure by obtaining the co-operation of Mr. Smith. His
contracts for the supply of the army, and his engagements to prepare
boats for the navy, would have enabled him to collect any quantity of
provisions and materials, and place them in suitable situations without
exciting the least attention: and whenever they were ready to act, he
might in a moment have stopped the supplies of your armies, and suddenly
directed all his resources to aid in the most effectual and fatal manner
the objects of the combination.
Thus, sir, in short, it appears that Mr. Smith has not merely forborne
from the commission of these acts, which if guilty it is almost certain
we should have discovered in him, but has pursued a most decided and
distinguished course of conduct, utterly unaccountable upon any other
presumption than that of his innocence.
I will now, sir, conclude by adding to these considerations those which
naturally result from the view which the testimony affords us, of Mr.
Smith’s character and situation in life, and the various honorable and
lucrative employments committed to his trust. These alone, if properly
considered, will be found more than sufficient to outweigh all the
circumstances adduced against him. I will not undertake to point out the
objects of Colonel Burr and his partisans, but am very willing to admit
the correctness of the information collected by the honorable committee
on this subject, and so eloquently detailed in their report. They are
there represented as having been only prevented by the “vigilance of
Government and of faithful citizens under its direction from a speedy
termination not only in war, but in war of the most horrible description,
in war at once foreign and domestic;” that “the debauchment of our army,
the plunder and devastation of our own and foreign territories, the
dissolution of our national Union, and the root of interminable civil
war, were but the means of individual aggrandizement, the steps to
projected usurpation.”
Now, sir, is Mr. Smith the sort of man to whom conspirators, who were in
their senses, would have proposed such a scheme as this? Would he have
been solicited to join in the dismemberment of the Union, whose interest
was so materially connected with its continuance, the profits of whose
employment wholly depended upon it? Would he have been asked to join in
“a war of the most horrible description,” who is represented as enjoying
every domestic comfort in the bosom of a happy and numerous family? Would
he be called upon to unite in a scheme of plunder and devastation, who
had every reason to be satisfied with his present possessions, who had so
much to risk and so little to gain from civil commotion? Would he have
been called upon to make all these sacrifices to the madness of ambition
who was already distinguished even beyond his wishes?
Surely, sir, this is the first time that robbers ever made offers of
partnership to the man whom they were about to plunder--that incendiaries
ever called upon him for assistance whose house was to be destroyed by
their flames.
No man in the whole Western country would have been more certainly ruined
by the success of this project than Mr. Smith. There is therefore no man
from whom it would have been more studiously concealed. To a disposition
of this sort I think it not at all improbable is to be in some degree
attributed the circumstance of Colonel Burr’s stopping at his house. As
Mr. Smith’s guest he would have it in his power to say just as much as he
pleased of his plans, and no more. In such a situation he would be less
liable to the importunity of inquiries.
Let us, sir, for a moment fancy ourselves present at a consultation upon
this subject between Colonel Burr and his confederates at Cincinnati; and
let us suppose that that gentleman had so far lost his usual discernment,
had felt such confidence in his personal influence as to presume that
he could seduce Mr. Smith from his interest as well as from his duty.
After inquiring about Major Kibby, (whom it seems he was anxious to
see, and who is represented to be in distressed circumstances,) let us
suppose that he mentions Mr. Smith. What would his associates, Glover
and McFarland, say to this? Would they not fear, that as Mr. Smith was
their enemy, he would be tempted to inform against them? Would they not
also know that if Mr. Smith assented to the proposal he would hold his
rank in the expedition much above them, and would have it in his power
materially to affect their interests? Would they not at least have
thought it highly dangerous to trust such a secret to a man so connected
with the Government they were about to oppose? These considerations would
instantly have dictated a most decided reply. They would have said “you
can have no hopes of Mr. Smith, his interests are too obviously opposed
to our designs; he is too well satisfied with his present situation
to consent to the change we contemplate; he is too highly trusted and
favored by the Administration. He is,” they would add, (repeating
an expression used by Glover on a former occasion,) “‘a damned army
contractor and gunboat builder;’ he makes too much by the present system
of things to be trusted with a scheme for overturning it. No, sir, from
him our plans must be concealed; he is easily deceived; tell him a
plausible story about your settlement of lands, show him your Washita
grants; tell him his sons are fine, promising young men, and offer to
take them under your patronage.” The force of these observations it would
have been impossible to evade.
And, sir, whatever Colonel Burr’s designs may have been, to whom does it
appear that he actually did communicate them? To what kind of men does
he apply to procure partisans? Why, sir, like a celebrated character
of antiquity, to whom he was long ago compared, it is always the
discontented, the embarrassed, the turbulent, the idle, the ambitious
and the enterprising. Nor does it appear that even to all these he fully
explained himself. He had a variety of schemes suited to every taste, to
every possible occasion. But among this mixed assemblage of characters,
collected by these means, there is not one to be found who had not some
strong and ruling passion to which he could successfully apply himself.
Thus to the romantic enthusiasm of Dr. Bollman, he would expatiate on
the glorious and benevolent attempt to liberate, enlighten, and exalt a
nation of slaves. To the youthful heroism of Swartwout he would paint, in
all their fascination,
“The plumed troop and the big wars,
That make ambition virtue!”
And turning from these he would address himself to such creatures as
Glover and McFarland, and to them he would talk of plunder. But, sir,
what motive could he expect to find in the breast of Mr. Smith that
would prompt him to listen to a project that assumed any aspect of
disunion, that discovered the least mark of treason, that bore even the
most distant indications of “war and devastation?” What air-built castle
could he picture to him to tempt him to overturn the fair and substantial
fabric of his honors, the solid foundation of his happiness?
WEDNESDAY, April 6.
The PRESIDENT communicated a report of the Secretary of the Treasury,
respecting roads and canals, prepared in obedience to the resolution of
the Senate, of the 2d of March, 1807; which was read.
_Case of John Smith._
The Senate resumed the consideration of the first report of the committee
appointed to inquire into the conduct of John Smith, a Senator from the
State of Ohio, as an alleged associate of Aaron Burr.
Mr. SMITH attended, together with Messrs. ROBERT GOODLOE HARPER and
FRANCIS S. KEY, counsel on his behalf.
Messrs. RUSSELL and GARDENIER, Representatives from New York, were
examined as to the credibility of several of the deponents on the part of
Mr. Smith.
Mr. HARPER then rose and addressed the Senate, first, in a legal argument
sustaining the views of his associate counsel; and then proceeded:
If, therefore, Mr. President, we had no defence, or only a weak one, on
the facts in the case, I should insist that this prosecution, being for
an offence cognizable by indictment, and resting on evidence which the
law excludes, ought to be dismissed. Standing, however, as my client
does, strong on the facts; holding in my hand abundant proof of his
innocence, I shall by no means rest his defence on this legal ground,
impregnable as I deem it; but having entered in his name, and in my own,
as one of the American people, this protest against a proceeding which I
regard as a violation of our constitutional privileges, I now proceed to
investigate the evidence adduced in support of the charges against Mr.
Smith, and to contrast it with that whereby his innocence is completely
established.
I am to premise that the charge against Mr. Smith is, that he was
connected with Colonel Burr in the late conspiracy. This connection is
alleged as the sole ground of expulsion; and it is attempted to be proved
in various ways.